The plaintiff injured his ankle while mopping stairs at a shopping centre. He sued the manager of the shopping centre and his employer.

At trial, the Court split responsibility for the plaintiff’s injuries equally between the centre manager and his employer. He was awarded damages of $642,638 which included $200,000 for pain and suffering. He was 54 at the time of the accident. While damages were not appealed, it is interesting to note that after the accident the plaintiff suffered from a stroke and was diagnosed with hypertension and diabetes. He had only one kidney and had smoked since he was 11. Despite these ailments, the trial judge only applied a 5% discount for negative contingencies.

The centre manager appealed on liability, arguing that the plaintiff’s method of working was so dangerous that the accident was inevitable. Put another way, any negligence on the part of the centre manager was not the cause of the plaintiff’s fall. The Court did not allow the centre manager to run this argument, as it had not been argued at trial and there were no exceptional circumstances to justify it doing so on appeal.

The centre manager also argued that there was no evidence that the stair was slippery. The stairs had been re-painted after the accident, however a small section of the original paint remained elsewhere in the building.

The plaintiff’s expert tested the original paint surface and found that it was low risk and within standards. The original paint contained grit. But the plaintiff’s expert gave further evidence that he could feel by touch that there was less grit in the paint on the stairs where the plaintiff fell than in the section which he tested as being low-risk.

The centre manager called the painter who oversaw the painting of the grit paint, who stated it was his practice to apply two coats of grit paint to ground surfaces. It therefore argued that it was not open to the Court to find that the stair was slippery, as two layers of grit paint had been applied which had elsewhere tested as a low slip risk. The centre manager did not call the painter who actually applied the grit paint to the stairs.

The Appeal Court found that an inference could be drawn from the centre manager’s failure to call the person who painted the stair, that his evidence would not have assisted its case. On this basis, it concluded that it was open to the trial judge to find that the stair was slippery. The centre manager’s appeal was unsuccessful.

Jones Lang Lasalle (Vic) Pty Ltd v Korlevski

This case serves as a reminder that awards for pain and suffering are increasing in Victoria. It also confirms that the way a case is run at trial is binding and the Courts will not allow new arguments on appeal except in exceptional circumstances.