Abu-Ali v Rubino Holdings Pty Ltd t/as Inbloom Florist

[2009] NSWDC 321

CITATION:	Abu-Ali v Rubino Holdings Pty Ltd t/as Inbloom Florist [2009] NSWDC 321
HEARING DATE(S):	28 - 30 September and 1 October 2009
JUDGMENT DATE:	30 November 2009
JURISDICTION:	Civil
JUDGMENT OF:	Hungerford ADCJ
DECISION:	(1) Verdict and judgment for the plaintiff against the first defendant on the action in the amount of $18,068.90. (2) Verdict and judgment for the plaintiff against the second defendant on the action in the amount of $18,068.90. (3) First and second defendants to pay the plaintiff’s costs of the proceedings, liability for which to be joint and several, on the ordinary basis in an amount as agreed or assessed. (4) Verdict and judgment for the second defendant/cross-claimant against the first defendant/cross-defendant on the cross-claim for indemnity in an amount to satisfy the judgment plus costs against the second defendant in favour of the plaintiff. (5) First defendant/cross-defendant to pay the second defendant/cross claimant’s costs of the cross-claim and of the action on an indemnity basis
CATCHWORDS:	TORTS - Negligence - Personal injury - Shopping centre - Customer struck by trolley loaded with flowers - Trolley pushed by a shopkeeper - Failure to keep a proper lookout - Casual act of negligence - Vicarious liability - Whether relationship between two defendants that of employment, agency or independant contract - Indemnity by employer in favour of employee - Contributory negligence - Quantum of damages - Costs - EMPLOYMENT LAW - Tortious liability of employer and employee - Nature of employment relationship - Vicarious liability of employer - Indemnity by employer in favour of employee - AGENCY - Tortious liability of principal and agent - Relationship of agency - Vicarious liability of principal - Indemnity by principal in favour of agent
LEGISLATION CITED:	Civil Liability Act 2002, s 16(2) and (3) Employees Liability Act 1991, s 3(1)(b) Uniform Civil Procedure Rules 2005, Pt 36 r 36.1
CASES CITED:	Australian Central Credit Union v Commonwealth Bank of Australia (1990) 54 SASR 135 Australian Mutual Provident Society v Allan (1978) 52 ALJR 407 Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41 Commissioner of Taxation v Barrett (1973) 129 CLR 395 Fennell v Supervision and Engineering Services Holdings Pty Ltd (1988) 47 SASR 6 Hall (Inspector of Taxes) v Lorimer [1992] 1 WLR 939 Humberstone v Northern Timber Mills (1949) 79 CLR 389 JA & BM Bowden & Sons Pty Ltd v Chief Commissioner of State Revenue [2001] NSWCA 125 Massey v Crown Insurance Co [1978] 1 WLR 676 at 679 Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 Pole v Leask (1863) 33 LJ (Ch) 155 Ready Mixed Concrete (South East) Pty Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497 Scott v Davis [2000] HCA 52 at [34]; (2000) 204 CLR 333 South Sydney District Rugby League Football Club Ltd v News Ltd [2000] FCA 1541 at [131]-[137]; (2000) 177 ALR 611 Sprod v Public Relations Oriented Security Pty Ltd [2007] NSWCA 319 Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16 Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19; (2006) 226 CLR 161 Zorom Enterprises Pty Ltd v Zabow [2007] NSWCA 106 (2007) 71 NSWLR 354
PARTIES:	Melia Abu-Ali - Plaintiff Rubino Holdings Pty Limited t/as Inbloom Florist First Defendant/Cross - Defendant Thi Thu Phan - Second Defendant/Cross-Claimant
FILE NUMBER(S):	5139 of 2007
COUNSEL:	Mr KW Andrews and Mr N Potts for the Plaintiff Mr RA Cavanagh for the First Defendant/Cross-Defendant Mr S Bell for the Second Defendant/Cross-Claimant
SOLICITORS:	The Law Company for the Plaintiff Curwoods Lawyers for the First Defendant/Cross-Defendant Not retained for the Second Defendant/Cross-Claimant

JUDGMENT

1 This action arose from an incident which was alleged to have occurred on Wednesday 17 November 2004 as the plaintiff, Melia Abu-Ali, was shopping in Westfield Shoppingtown at Chatswood. After making some purchases at Target and carrying a light bag, she went up the escalator to the next level and walked in the common area. As she approached Joe’s Meat Market, the plaintiff said she was struck by a trolley laden with plants and flowers being pushed by a short young lady and she fell to the floor; immediate pain in the left shoulder and neck was felt. Assistance was received from another lady and a security guard attended. On composing herself, the plaintiff walked to the car park and drove her car home.

2 Later that day, or she thought it could have been the next day, with continuing pain the plaintiff consulted her general practitioner, Dr Raffi Sahagian, who referred her for physiotherapy and later an ultrasound of the shoulder. She remained under Dr Sahagian’s care who eventually referred her to a surgeon, Dr Wade Harper, for treatment and in May 2007 he performed surgery to the left shoulder in The Prince of Wales Hospital.

3 Dr Sahagian had been the plaintiff’s general practitioner for some years prior to the subject incident. His clinical notes of attendances by her disclosed that on 9 March 1988 she presented “complaining of severe neck pain and pain in the arm” with a “history of neck pain and painful arm since 1980” during her employment on rapid and repetitive work operating a printing machine at John Sands (Australia) Limited. Apparently the plaintiff was so employed since 1977 until she left employment in 1984 on maternity leave and then effectively retired from the workforce in 1985 to raise a family and pursue home duties. Gradually, in that early employment period, she said the pain occurred in her shoulder. Dr Sahagian referred the plaintiff to Dr Patrick McNaught, a rheumatologist, who saw her in March 1988 but no definite diagnosis was made. Then, in May 1999 she was involved in a motor vehicle accident and sustained injury to the right knee which required surgery. However, as at the time of the subject incident she maintained no ongoing problems with her shoulders or knee and was readily able to perform all home duties, including raising four children.

The claim, defences and cross-claim
4 During the period relating to this incident, Rubino Holdings Pty Limited trading as “Inbloom Florist” operated the business of a retail florist from a shop in the Westfield centre at Chatswood and also there was another outlet in the same centre conducted by Inbloom Florist being a kiosk in which Thi Thu Phan worked selling plants and flowers. Both the shop and the kiosk were occupied under a lease with Westfield. Only Ms Phan was engaged in working in the kiosk but Inbloom Florist employed more employees in its shop.

5 The plaintiff sued Inbloom Florist as the first defendant in its conduct of the floral business in the centre and, specifically, in its conduct of the retail sale of plants and flowers from the kiosk for which it used the services of Ms Phan. The action was brought against the first defendant for its vicarious liability for the alleged negligence of Ms Phan, said to be its employee and/or agent, by striking the plaintiff with the trolley and so failing to use it in a safe manner and in not keeping a proper lookout.

6 Ms Phan, the second defendant, was sued for her negligence in so using the trolley by striking the plaintiff in failing to keep a proper lookout and in failing to take appropriate steps for the safety of shoppers in the centre. In the alternative, it was pleaded that the second defendant conducted the business of a florist from the kiosk in the centre and as such owed the plaintiff a duty of care as a visitor to the centre which was breached by her negligent operation of the trolley.

7 Both defendants denied that the second defendant was employed by the first defendant, in the sense that there was no employer-employee relationship between them. However, the second defendant pleaded that at all relevant times she was the agent of the first defendant in the management of the floral business from the kiosk; the first defendant denied any relationship of agency. Otherwise, both defendants admitted that the second defendant was pushing the trolley loaded with flowers and/or plants through the centre at the time concerned. The plaintiff’s allegations of negligence and of injury, loss and damage sustained by being struck by the trolley were denied. In any event, both defendants pleaded that the plaintiff was guilty of contributory negligence in not taking any, or any proper, care for her own safety by failing to keep a proper lookout whereby she did not see the trolley and walked into its path.

8 The second defendant made a cross-claim against the first defendant, on the basis that she was its agent, for an indemnity for any judgment found against her to the plaintiff. In resisting the cross-claim and for its purpose, the first defendant admitted the plaintiff’s allegations against the second defendant as to her conduct of a business in the kiosk, the occurrence of the incident caused by her negligence in breach of the duty of care owed to the plaintiff and the consequent injuries, loss and damage to the plaintiff. A relationship of agency with the second defendant was expressly denied by the first defendant.

9 Resultant issues for determination: Having in mind the pleadings and the way in which the case was argued, the following issues arise –

(1) Whether the incident actually occurred as alleged by the plaintiff.

(2) Nature of the relationship between the first defendant and the second defendant as to whether it was one of employment, independent contract or agency.

(3) Consequences of the relationship so found to exist in terms of any liability to the plaintiff.

(4) Nature and extent of any injuries suffered by the plaintiff and their cause.

(5) Quantum of any damages.

Plaintiff’s background

10 The plaintiff at the date of the incident was 56 years of age and 61 years at trial. She was born and educated in Bethlehem and obtained an arts degree from Jordan University. In 1971 she migrated with her husband and a child to Australia and they proceeded to raise their family of another three children. There then followed the period of the plaintiff’s employment with John Sands from 1977 to 1985, with a further short period in 1986/87, until she left the workforce and engaged in home duties; however, short term work as a florist was performed from time-to-time. Now, she does volunteer work in arranging flowers for her local church one day a week and up until 2003 she cooked for nuns every day. She then in May 1999 was involved in the motor vehicle accident.

11 Prior to the subject incident, the plaintiff maintained there were no ongoing problems from her shoulders and knee which had previously troubled her since the shoulder pain experienced while doing the repetitive machine work at John Sands and the knee pain after the motor vehicle accident. At that time she lived with her husband and 20 year old son. She said she did all of the housework without any assistance as her husband worked afternoon and night shifts as a security officer, and that included attending to gardening, lawnmowing and planting.

12 On a daily basis, the plaintiff for some years attended, and presently attends, the North Sydney Leagues Club to play Bingo from about 11.00 am for a few hours each day.

13 13On 17 November 2004 in the Westfield centre at Chatswood the plaintiff said she had used the escalator after shopping at Target and at the top of the escalator turned to the right and proceeded towards the butcher shop, Joe’s Meat Market, and what then occurred was described by her in this way:

“Then sudden while I’m walking this way, I felt something really – something I didn’t know what was it, pushed me, hit me, throw me on the floor … came from my left side because I was walking this way (towards her right) …. After maybe a moment, I couldn’t you know, think what was it. Then I opened my eyes and I just realised it’s a big trolley full of plant and flower. Two level .. A very little young lady [was pushing the trolley]”.

14 On falling to the floor, the plaintiff said what happened was:

“….there’s someone come and help me and she said – that lady, her name Natasha, she said, ‘Can I help you?’ I said, ‘One minute please’. I tried to protect my leg because years ago I had an operation. I don’t want to ruin it. She said, ‘Anything wrong?’ I said, ‘I feel very bad pain in my shoulder and my neck’. Then the young lady, the one she pushed – she pushed that trolley, she came toward me and she said, ‘I’m sorry. I didn’t see you’, exactly the same word, that’s what she said … the other lady, she came and bring me a chair and she said, ‘Can I give you some water?’ I said, ‘No thank you’. Then I tried to stand up and go. She said, ‘No, please have a rest little bit and you have to report what happened. .. She called a security man …I told him. I said that’s what happened”.

15 The plaintiff was closely tested on the sequence of events of the collision with the trolley – she accepted, as she said, “I did not see the trolley before it hit me” and affirmed it “hit me on my left side … I noticed the trolley when I’m on the ground.” She was somewhat vague about the time the incident occurred, other than that “maybe midday or something. I’m not sure really. It wasn’t early in the morning … I left to go to Bingo (usually getting there about 11.00 am) but that day I’m not sure what time I was there.” It was suggested to her the incident occurred around 10.00 am but she maintained not being able to remember, even to the extent whether it was midday, 10.00 pm, 6.00 pm or 4.00 pm. The time, as it will emerge, was significant in light of the evidence of the second defendant (Ms Phan) which will be dealt with later. To understand that evidence, it is to be noted that the plaintiff marked on a diagram the layout of the area of her path of travel from the top of the escalator from Target by turning right and walking towards Joe’s Meat Market. The Inbloom kiosk was to her left at the other end of the floor. She denied the person pushing the trolley, the shorter Asian lady being the second defendant, asked her “Are you alright?” as it was Natasha who did so and she denied further she told that lady she was alright and had a sore shoulder from a previous operation. She resisted the suggestion that the trolley did not knock her to the ground at all and that she had made up the story about injury to her left arm, should and neck from being hit by the trolley.

16 Natasha Ortega gave evidence. As at 17 November 2004 she was a cleaning supervisor at the Westfield centre at Chatswood where the subject incident occurred and was present at the time. She was familiar with the layout of the area and the location of the various shops, including the Inbloom kiosk, Joe’s Meat Market and the storeroom available for use by the shop proprietors; she knew the second defendant worked at the Inbloom kiosk and at the relevant time saw her pushing the trolley with flowers on it towards the storeroom away from the kiosk. This evidence of the incident was given:

“Q. What attracted your attention to the lady that you eventually assisted?
A. She screamed and she fell.

Q. When she fell, what did you do?

A. I run to her, I try to help her. I bring the chair and I call security.

…

Q.The lady when you got to her, was she standing or was she on the floor?
A. She was sitting on the floor.

Q. Did you at that time speak to the lady that had been pushing the trolley?
A. Yes I did.

Q. Do you remember what you said to her?
A. Yeah, I – I get upset with her, and she told the lady, ‘I’m so sorry, I didn’t see you’.

Q. Did you eventually leave and go about doing the rest of your jobs?
A. Yes.

Q. Was that after the security arrived?
A. Exactly, yes.

….

Q. After you got the lady up off the ground, she got up and got onto the chair –
A. Mm mm.

Q. - did you see where the lady that had been pushing the trolley went?
A. To the storeroom.

…
Q. Did she have the trolley with her or not, when she went to the storeroom?
A. She went there pushing the trolley, yes”.

17 Ms Ortega admitted attending to in excess of 50 accidents, mainly spillages, at the Chatswood centre in the period of seven years she had worked there and she remembered the plaintiff and the subject incident as occurring in November 2004. However, on being pressed, she became very evasive and uncertain, to the point of obfuscation, about the identification of the second defendant, other than that “there was an Asian lady that I saw her working in Inbloom”, when the incident occurred and at what time of day. Indeed, notwithstanding her earlier evidence, Ms Ortega explained that she was outside Joe’s Meat Market “when this lady come with a trolley and hit this lady” but then added she had to turn around to see what had happened after hearing a scream and saw the lady on the floor – she expressly then conceded not seeing the trolley hit anyone.

18 As to the time the incident occurred, Ms Ortega said it was “in the afternoon because they was putting the flowers away”, probably 5.00 or 5.30 pm. She rejected the suggestion it occurred in the morning and said after the incident the trolley was pushed into the storeroom.

19 Ms Ortega eventually recognised the second defendant as a person who worked at the Inbloom kiosk, along with another lady as there were often two persons in the kiosk, and agreed she had complained to the second defendant many times about allowing water to remain on the floor near the kiosk.

20 Then, perhaps surprisingly, on being asked whether she had a conversation with the plaintiff’s legal advisors about the matter, this evidence was given:

“Q. Yes and they asked you about – and they said that Ms Phan was coming down from Spring Street (at the Inbloom kiosk end of the area) down to storeroom – Ms Phan was coming from Spring Street down to the storeroom didn’t they?
A. Was not her.

Q. Hey?
A. Was not her.

Q. So it was not Ms Phan coming down from the Spring Street side down towards the storeroom?
A. I’m sure it was not her.

Q. It wasn’t her?
A. I’m – I’m saying before, I cannot remember – I mean, is a tall lady with glasses, long hair.

“Q. So it was a tall lady with glasses?
A. Yeah, the one who was pushing the trolley.

Q. The one who was pushing the trolley?
A. I’m not too sure.

Q. Now let’s be clear, it was a tall lady with glasses was it?
A. She was wearing glasses.

Q. And the tall lady?
A. Not really tall.

Q. Not a tall lady?
A. Taller than me.

Q.Taller than you. That was the lady who was pushing the trolley?
A. I think so, yeah.

….

Q. Might I ask how tall you are?
A. 160, 159, 160 [cms].”

21 The second defendant in evidence outlined the work she performed in the Inbloom shop and in the kiosk after starting employment with the first defendant in March 2004. She explained that the routine was to use a trolley to convey flowers from the storeroom, near and behind Joe’s Meat Market, to the kiosk each morning between 8.30 and 10.30 am and to return unsold flowers to the storeroom from the kiosk for cold storage overnight at 6. 00 pm – a different route was taken on each occasion. In the morning, the path was in front of Joe’s Meat Market along the middle area of the centre floor to the kiosk and in the evening the path from the kiosk was in front of the row of shops on the opposite side to Joe’s Meat Market, past the escalator and into the storeroom. The trolley itself was described by the second defendant as “a big trolley, it was taller than me … three levels ... first level from the ground – about 20 – maybe 10-15 centimetres ... second level about I would say about 80 centimetres … [top level was] above my head.” She said she was 152 cm tall. She did not wear glasses and, certainly at the time of the hearing, did not have long hair.

22 The incident of 17 November 2004 at the centre was recalled by the second defendant as taking place about 10.00 am because she was pushing the trolley loaded with flowers from the storeroom to the kiosk. After placing the flowers on the trolley in the storeroom she proceeded to the take the usual route to the kiosk by exiting the storeroom, turning to the right and pushing the trolley, which was not heavy, at normal walking speed. Then, outside Joe’s Meat Market, she said this happened:

“I walking and I heard someone scream and I stopped the trolley. I went in the front of trolley and I saw a lady was standing in front of the trolley and she was holding her shoulder and I asked her, ‘Are you okay?’ and she said, ‘I am okay but I just had an operation on my shoulder’”.

23 The second defendant identified the plaintiff as the lady concerned. On being told she was okay, the second defendant continued her journey to the kiosk. There were no other persons present at the time.

24 After setting up the flowers in the kiosk, the second defendant pushed the empty trolley back to the storeroom by the usual route and on the way saw the plaintiff with Ms Ortega and security guards. She then returned to the kiosk where, about 30 minutes later, she said the plaintiff arrived and said again that she had just had an operation on her shoulder. The plaintiff left and was not seen again by the second defendant.

25 It need be added that the second defendant in pushing the trolley, which at the time had flowers only on it, was looking between the gaps and conceded “I didn’t see her, all I heard was a lady scream and I stopped”. Even so, she maintained “I look and I can see the way where I am going … through the gap… It is very clear [vision] to me”. She was adamant that the plaintiff was standing in front of the trolley after the scream and was not sitting on the floor.

26 Finding as to the incident: The plaintiff’s case was straightforward from the evidence which, her counsel Mr KW Andrews submitted, established “that the second defendant was pushing a trolley which she had difficulty seeing through and/or around, and caused it to strike the plaintiff”. Against that, Mr RA Cavanagh of counsel put for the first defendant that the plaintiff’s “version of events is wholly improbable” - that version, said counsel, would involve rejection of the second defendant’s evidence in a situation where she “could see where she was going, was looking and was travelling very slowly. What more could she have done”. Mr Cavanagh identified the difficulty with the plaintiff’s case in understanding how she could not have seen the trolley at all beforehand and emphasised that although the second defendant’s vision may have been obscured by the trolley she was only walking slowly. As counsel add – “It is difficult to conceive of a situation where the plaintiff, with her view wholly unobscured, could have missed the trolley. Yet that is what she says. Therein lies part of the difficulty with the plaintiff’s evidence.”

27 Mr S Bell, the second defendant’s counsel, also challenged the occurrence of the incident in terms of the time it occurred, the direction of travel of the trolley and whether the plaintiff was in fact hit by the trolley, but, if so, that it was on the right-hand side and not the left and with only insignificant force so as not to cause any injury. Indeed, counsel submitted that a lady of the second defendant’s stature pushing a trolley, where she said that she did not feel it hit anyone and only stopped because of the scream, made it unlikely the plaintiff was hit and knocked to the ground.

28 I have to say I found Ms Ortega’s evidence unsatisfactory. Initially giving a fairly clear and concise account of the plaintiff being struck by the trolley, testing under cross-examination disclosed her approach as a reconstruction of events to the point where she conceded she did not see the trolley hit the plaintiff and turned around only on hearing the scream. Most importantly, she claimed a recall of what occurred in this incident five years ago but having been asked first to give evidence only a few weeks before the trial. Although not having seen the plaintiff before or after the incident, she said she was able to identify her as the lady hit by the trolley in November 2004, a date she claimed to remember, but where she could not identify the second defendant without her glasses. Of course, Ms Ortega was familiar in the workplace of the Chatswood centre with the second defendant with whom she had had dealings from time-to-time about water on the floor near the Inbloom kiosk. Then, somewhat surprisingly as I have earlier remarked, on further testing she said she was sure, repeated by her in evidence, that the lady pushing the trolley was not Ms Phan as it was a tall lady with glasses and long hair – that could not be the second defendant. Ms Ortega then endeavoured to plead she “cannot remember” and she was “not too sure” and that the lady was “not really tall” but taller than her – she was 160 cm tall and the second defendant was 152 cm. Ms Ortega in her work as a cleaning supervisor for some years admitted to involvement in over 50 incidents. I can only conclude she was confused in giving evidence about the subject incident. Her evidence was unreliable and I will not rely on it as support for the plaintiff’s case.

29 The second defendant gave a frank and very open version of what she thought occurred. There was no attempt to gloss over salient points and, despite a probing cross-examination, she maintained her evidence in significant respects but was prepared to make concessions where necessary. Specifically, she was firm about her direction of travel from the storeroom to the kiosk about 10.00am on the day concerned pushing the trolley at normal walking pace and able to see ahead through the gaps in the flowers. Although not seeing the plaintiff, who was either in front of the trolley or to the side, the second defendant did not feel any collision and only stopped on hearing the plaintiff scream. On being assured by the plaintiff, who was standing in front of the trolley, that she was ”okay”, the second defendant continued to the kiosk. She readily conceded the plaintiff was holding her shoulder but said the plaintiff told her of an earlier operation on it; that indication was repeated in the kiosk some 30 minutes later. It would be inconceivable, I think, in the common area of a shopping centre at 10.00 am for the second defendant to have run into the plaintiff with the trolley forcing her to the floor to simply leave the scene.

30 The plaintiff’s evidence as to the events was sparse. She did not see the trolley until she was on the floor and did not remember screaming – both the second defendant and Ms Ortega heard a scream. She said something hit her on the left-hand side of her body and forced her to the floor – she re-affirmed being struck on the left, but that is inconsistent with what I accept was the second defendant’s route of travel in the morning as she passed in front of Joe’s Meat Market. The plaintiff was facing that shop so that her right-hand side faced the second defendant’s travel route. In that respect, the plaintiff was evasive, like Ms Ortega, about the time the incident occurred, whether in the morning or the afternoon, but I think it more likely to have been in the morning around 10.00 am prior to her attending the daily Bingo game at 11.00 am in the North Sydney Leagues Club. Being forced to the ground by the trolley did not fit with the second defendant’s evidence that she was standing holding her shoulder – I think it to be doubted that a small person such as the second defendant pushing a trolley, which was not heavy, at normal walking pace would have struck the plaintiff with such force as to propel her to the floor. Indeed, the second defendant felt nothing to indicate that.

31 It may be undoubted that an incident occurred at the time concerned when the paths of the plaintiff and the second defendant met. However, at most, in my view, as they approached each other the plaintiff suddenly realised the presence of the trolley and screamed with surprise and fear; the second defendant on hearing the scream stopped; the plaintiff stood as the second defendant asked if she was okay; on being assured the plaintiff was okay the second defendant left the scene; and the plaintiff, as Ms Ortega arrived, sat on the floor until given a chair to compose herself. I am not satisfied to the requisite standard it has been established by the plaintiff that the trolley hit her with such power as to force her to the floor; at most, in my view, the trolley may have touched or struck her shoulder.

32 I prefer the second defendant’s account of the events. Whether that sounds in negligence with consequent damages for any alleged loss to the plaintiff may be reasonably doubted. That will be dealt with later in these reasons.

Relationship between the first and second defendants

33 The plaintiff claimed the second defendant was either an employee of or an agent for the first defendant in managing the kiosk, including the task of using the trolley to transport flowers through the centre between the kiosk and the storeroom. The second defendant said she managed the kiosk as her own business but in doing so was an agent for the first defendant. The first defendant said the relationship was neither employment nor agency but that the second defendant could be described as either a franchisee or an independent contractor.

34 It seemed settled on the evidence that the second defendant commenced employment with the first defendant at the Chatswood centre on 1 March 2004. There were two Inbloom outlets in the centre, a shop on Level 4 and the kiosk on Level 2. The work performed by the second defendant, as she said, comprised setting up the shop, arranging the plants and flowers for display, selling the goods to customers, taking telephone orders and answering the telephone; as to the kiosk, she also opened and closed it. She was trained in her duties by a Jason Kirage, one of Inbloom Florist’s managers. Over the period from March to the end of August 2004 the second defendant’s work routine remained the same and covered periods in both the shop and the kiosk. Wages were paid weekly by the first defendant into her bank account by electronic funds transfer, although it was suggested this ceased on 1 July 2004 when alternative arrangements were made for her wages to be paid by Mr Kirage.

35 However, in late July or early August 2004, Mr Kirage, as she said, arranged for the second defendant to accompany him to work at the Inbloom Florist shop in the Westfield Shopping centre in the inner-city area of Sydney. She said she returned to the Chatswood centre on 13 November 2004 and worked in the kiosk. Then, shortly thereafter the second defendant’s evidence was that Frank Rubino, the managing director of the first defendant, and Michalas Bambacus, the general manager of the first defendant, spoke to her at the Chatswood centre in a coffee shop. Up to this time the second defendant maintained employment with the first defendant existed and, notwithstanding her period of three to four months in Inbloom Florist’s city shop with Mr Kirage, that employment had never been terminated.

36 The discussion the second defendant said she had with Mr Rubino and Mr Bambacus involved Mr Rubino saying:

“He told me that he would like to offer me to manage the kiosk in Westfield Shopping centre, K206 and I – I had to buy the flowers from Inbloom. I had to buy with the – the set price they set. I have to sell it with the price they tell me and had to pay all the ongoing like the rent, the – all the bills, electricity bill, water bill, phone bill and advertising, insurance, yellow pages”.

37 Because she wanted to run the business, the second defendant responded “Yes I would”. She then returned to the kiosk and resumed work. Shortly thereafter on 13 November 2004 or later the second defendant was told by Mr Frank Rubino, Mr Mario Rubino and Mr Bambacus what she was required to do in the kiosk – she was to wear an Inbloom Florist uniform with her name tag; flowers were to be sold at the prices told to her; flowers were to be stocked in a certain way; the display arrangement of flowers and plants was to be in a particular way; and all equipment in the kiosk, including the trolley, was supplied by the first defendant.

38 The second defendant obtained an Australian Business Number in her name and completed a Business Activity Statement for the period 1 November 2004 to 30 November 2004 to meet taxation requirements. For the financial year ended 30 June 2005 the second defendant in her income tax return disclosed a business activity of “floriculture” in the business name of “Inbloom” with a net income before tax from the business (presumably for the eight-month period from November 2004 to June 2005) of $10,950.00. After deductions from gross sales of the cost of goods sold and expenses (advertising and promotion, bank fees and charges, cleaning and rubbish removal, electricity and gas, insurance premiums, materials and supplies, printing and stationery, rent of business premises and sundry other expenses) that amount of $10,950.00 can only represent net income from the business for the labour of the second defendant. It is to be remarked that for the eight-month period the compensation to her for her labour was thus about $322.00 per week. For a full-time workload that amount was well below a minimum wage for an employee. Clearly, it seems to me, the first defendant by the arrangement made with the second defendant had minimised the labour cost for managing the kiosk and transferred to her liability for the expenses, with a saving to it in associated administrative costs, but maintained its profit from the sale to her of flowers supplied by it.

39 I interpose that the first defendant sued the second defendant in 2007 in the Local Court at Sydney to recover an amount of $10,474.86 being the difference between the expenses (advertising, insurance and rent) it incurred for the kiosk as invoiced to the second defendant and the amounts she had reimbursed. Those proceedings were not ultimately pursued. However, in his affidavit filed in that matter Mr Frank Rubino deposed:

“6. On or about 1 ^st March 2004 the defendant (Ms Phan) commenced working as a part-time florist for Inbloom at K6, Westfield Shoppingtown, Chatswood.

7. On or about 1 November 2004, the defendant was offered the opportunity to operate the Chatswood kiosk, under a verbal management agreement, which the defendant accepted.

8. As manager of the Inbloom store at Chatswood the defendant agreed to work and operate the business, paying all necessary rent, outgoings, wages and agreed to employ all her own staff, pay her staff accordingly, including all on-costs such as workers compensation and superannuation;

…

10. During the course of managing the Chatswood kiosk, the defendant was issued invoices for the kiosk and Storeroom rent on a monthly basis.

…

12. In June 2005 the defendant informed me that she wished to return to her country of birth, Thailand, and therefore would be leaving the business.

13 A new manager was found to take over the Chatswood kiosk and the defendant was to complete her trade on 31 July 2005.”

40 For completeness, the second defendant gave this further evidence about her relationship with the first defendant:

“Q.You knew when completing that document (defence to statement of claim), firstly that the time this incident occurred you were not an employee of Rubino Holdings, that’s right isn’t it?
A. I was acting agent.

Q. Well whether you’re acting agent or not, you were running your own business weren’t you?
A. I wouldn’t call that my own business.

Q. Well you were self-employed weren’t you?
A. Yes.

Q. Well that’s running your own business isn’t it?
A. But I run under the instruction from –

…

Q. Under instruction from whom?
A. From Inbloom Holding and from Mr Frank Rubino, Mr Michalas Bambacus and Mr Mario Rubino.”

41 Mr Frank Rubino explained that the first defendant had been in the florist business for 50 years and at present it operated eleven shops in New South Wales and Canberra. Some of the shops were conducted by it and others through franchise agreements. The practice was, as he said, “of vetting prospective franchisees through an agent firstly, then if we feel after the vetting process they’re suitable, then we grant them a franchise”. In 2004, as Mr Frank Rubino confirmed, two outlets were operated at the Westfield Chatswood centre, a shop on Level 4 and a kiosk on Level 2. On 1 July 2004 he said the first defendant gave Mr Kirage a management agreement to operate a kiosk in the city, in accordance with the vetting process, and who then employed the second defendant who had since 1 March 2004 been employed by it working in the shop and the kiosk; the second defendant was said to have been terminated in her employment with the first defendant. After a period of about four months, the second defendant was said to have returned to the Chatswood centre and given the opportunity to operate the kiosk business on the same terms and conditions as Mr Kirage did. Those terms and conditions were described by Mr Frank Rubino as a “verbal management agreement” in this way:

“That she operate a flower business, that she buy stock from us, that she pay for that stock, she pays all the operating expenses and she was able to keep the profits of that business”.

42 It seems, however, that Mr Frank Rubino left it to Mr Bambacus, the general manager, to arrange such matters and he assumed the second defendant was terminated in her employment with the first defendant because “we no longer needed her”. Indeed, when pressed about financial matters concerning the second defendant, Mr Frank Rubino said they would have to be dealt with by the accountant (presumably Mr Mario Rubino). However, neither Mr Bambacus nor Mr Mario Rubino gave evidence.

43 Mr Frank Rubino conceded the second defendant could be told to vacate the kiosk if she failed to properly perform the work. Specifically also, he said she was controlled as to where flowers were to be purchased, insisted she open the kiosk during core hours and to tell her of matters concerning occupational health and safety in the centre. However, he maintained she could negotiate the purchase price of flowers with Mr Mario Rubino and fix her own price to sell the flowers. Again, it is to be noted, Mr Mario Rubino did not give evidence.

44 Finding as to the relationship: It was common ground the second defendant was employed by the first defendant from 1 March 2004. The assertion her employment was terminated on 1 July 2004 so she could be employed by Mr Kirage in a kiosk in the city was an “assumption” of Mr Frank Rubino but denied by the second defendant. Indeed, Mr Kirage did not give evidence and that event was not referred to in the affidavit of Mr Frank Rubino which spoke of employment with the first defendant from 1 March 2004 and the making of the oral management agreement on 1 November 2004. It is true the second defendant’s income tax return for the financial year ended 30 June 2005 showed wages only for one day on 1 July 2004 but, in my view, that cannot be decisive of her employment status and by whom in light of the state of the oral evidence including the lack of evidence from Mr Kirage, Mr Bambacus and Mr Mario Rubino in the proceedings and the affidavit of Mr Frank Rubino. Also, an annual statement of the second defendant’s superannuation from ING Custodians Pty Limited showed her commencement date as an employee of the first defendant was 12 July 2004. Therefore, I accept that there was an employer-employee relationship between the first and second defendants up to at least 1 November 2004. The real question is the nature of the relationship thereafter and, in particular, on 17 November 2004.

45 The second defendant accepted, on her return to the Chatswood centre kiosk on 13 November 2004, that she made an oral management agreement with the first defendant whereby she agreed to “manage the kiosk” on terms that she would buy the flowers from Inbloom and then sell them to customers at the prices Inbloom set; she was to reimburse Inbloom various operating expenses for the kiosk such as electricity, water, telephone, advertising and insurance. Mr Frank Rubino generally agreed with that evidence, other than that he said the second defendant could negotiate the purchase price with Mr Mario Rubino and was able to herself fix the sale price to customers; also, the second defendant had a discretion to open the kiosk for business beyond the core hours set by Westfield centre management. Again, Mr Mario Rubino did not give evidence.

46 In submitting a relationship of employment, Mr Andrews summarised a number of indicia which counsel said pointed to such a relationship, or in the alternative one of agency, in that all that was missing was the payment of wages and where the element of control of the second defendant in the work was only consistent with such a relationship. Mr Bell also referred to the facts but as supporting an agency relationship. Helpfully, both counsel referred me to various authorities, to which I will refer later, as establishing their respective positions.

47 Mr Cavanagh alone, also by reference to the terms of the management agreement and as to how it operated in practice, made submissions against employment and agency with an appropriate description of the relationship as being one of franchisee or independent contractor.

48 When the management agreement commenced by reference to the date of the plaintiff’s incident is not entirely clear. The second defendant initially said it was on 13 November 2004, as she commented, “I remember exactly, because that is an important date for me too”. Even so, when pressed, she conceded it as possible it was a week after 13 November 2004. However, from invoices sent to the second defendant from the first defendant for rent and electricity charges for the kiosk the commencement date was shown as 13 November 2004. I accept the management agreement commenced on that date.

49 Viewing the overall evidence, I find the following facts established –

(1) The second defendant was employed by the first defendant during the period from 1 March 2004 to at least 13 November 2004, during which period she worked at the Inbloom shop in the city from 1 July 2004 to 12 November 2004.
(2) On 13 November 2004 on her return to the Westfield Chatswood centre, the second defendant made an oral agreement with the first defendant whereby she was to manage the kiosk.
(3) The management agreement was part of a vetting process to determine her suitability to become a franchisee to the first defendant.
(4) In terms, the management agreement provided for the second defendant to assume the management of the kiosk and would:

(a) pay to the first defendant all business operating expenses;

(b) purchase flowers from the first defendant for resale in the kiosk at prices fixed by the first defendant;

(c) keep the kiosk open for trading at least during the centre’s core hours;

(d) the kiosk to operate under the name of Inbloom Florist;

(e) plants and flowers were to be displayed in the kiosk as required by the first defendant;

(f) fixtures and fittings in the kiosk and other equipment, including the trolley, were owned by the first defendant and it maintained the lease over the premises;

(g) the second defendant was to wear the first defendant’s Inbloom uniform and her name tag;

(h) the second defendant had the use of the first defendant’s storeroom;

(i) the agreement could be terminated by the first defendant at will;

(j) the second defendant was to be remunerated by retaining the profit (or bearing the loss) from operating the kiosk in lieu of receiving a wage; and

(k) the management of the kiosk was subject to directions given by the first defendant.

(5) The first defendant maintained an insurable interest over the kiosk, including as to monies held on the premises, in transit or at the second defendant’s home.
(6) The first defendant retained the right to instruct as to occupational health and safety matters concerning the kiosk.
(7) The first defendant supplied its own staff to service the kiosk and keep it open if the second defendant was absent.
(8) The net profit before tax earned by the second defendant from the kiosk was approximately $322.00 per week which was referable to her labour.
(9) By reason of the arrangement, the first defendant obtained the benefit of a saving of about 20 per cent in operational employment costs due to superannuation, workers compensation premiums, payroll tax, annual and long service leave provisions, sick leave and the like.
(10) The second defendant’s employment was never expressly terminated by the first defendant, either orally or in writing; at most, there was an implied termination by the making of the management agreement.

50 The determination of the true relationship between parties in the workplace, whether one of employment, for employment or agency, has involved much judicial attention over the years. Indeed, various indicia have been identified as assisting the task but, I think, one of the most enduring is “the control test”, not in terms of controlling the actual work but rather by retaining the right to exercise it. As Dixon J observed in Humberstone v Northern Timber Mills (1949) 79 CLR 389 at 404:

“The question is not whether in practice the work was in fact done subject to a direction and control exercised by an actual supervision or whether an actual supervision was possible but whether ultimate authority over the man in the performance of his work resided in the employer so that he was subject to the latter’s order and directions.”

51 In JA & BM Bowden & Sons Pty Ltd v Chief Commissioner of State Revenue [2001] NSWCA 125, Ipp JA (with whom Giles JA and Hodgson JA agreed) said (at [9]) that “the general principles applicable in determining whether a contract is one of service or for services are set out in Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16 ….. consideration of the question whether a relationship of employer and employee exists, must start with that decision.” In Stevens, Mason J (with whom Brennan J generally agreed) authoritatively stated (at 24):

“But the existence of control, whilst significant, is not the sole criterion by which to gauge whether a relationship is one of employment. The approach of this Court has been to regard it merely as one of a number of indicia which must be considered in the determination of that question… Other relevant matters include, but are not limited to, the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and provision for holidays, the deduction of income tax and the delegation of work by the putative employee.”

52 Given that control is not now considered to be the only relevant factor, it is to the totality of the relationship between the parties which is to be looked at: see Stevens per Mason J at 28-29. With that in mind, the remarks of MacKenna J in Ready Mixed Concrete (South East) Pty Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497 at 515 are apposite:

“A contract of service exists if three conditions are fulfilled. (i) The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master. (ii) He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other’s control in a sufficient degree to make that other master. (iii) The other provisions of the contract are consistent with its being a contract of service”.

53 In Stevens (at 36-37), as adopted in Bowden (at [13]), Wilson and Dawson JJ summarised the approach in this way:

“The other indicia of the nature of the relationship have been variously stated and have been added to from time to time. Those suggesting a contract of service rather than a contract for services include the right to have a particular person do the work, the right to suspend or dismiss the person engaged, the right to the exclusive services of the person engaged and the right to dictate the place of work, hours of work and the like. Those which indicate a contract for services include work involving a profession, trade or distinct calling on the part of the person engaged, the provision by him of his own place of work or of his own equipment, the creation by him of goodwill or saleable assets in the course of his work, the payment by him from his remuneration of business expenses of any significant proportion and the payment to him of remuneration without deduction for income tax. None of these leads to any necessary inference, however, and the actual terms and terminology of the contract will always be of considerable importance.

Having said that, we should point out that any attempt to list the relevant matters, however incompletely, may mislead because they can be no more than a guide to the existence of the relationship of master and servant. The ultimate question will always be whether a person is acting as the servant of another or on his own behalf and the answer to that question may be indicated in ways which are not always the same and which do not always have the same significance. That is best illustrated by turning to the circumstances of this case ….”

54 In so viewing then the circumstances of the present case, and as Mr Andrews urged, their Honours in Bowden (at [14]) followed these words of Mummery J in Hall (Inspector of Taxes) v Lorimer [1992] 1 WLR 939 at 944:

“This is not a mechanical exercise of running through items on a check list to see whether they are present in, or absent from, a given situation. The object of the exercise is to paint a picture from the accumulation of detail. The overall effect can only be appreciate by standing back from the detailed picture which has been painted, by viewing from a distance and by making an informed , considered qualitative appreciation of the whole, It is a matter of the overall effect of the detail, which is not necessarily the same as the sum total of the individual detail. Not all details are of equal weight or importance in any given situation. The details may also vary in importance from one situation to another.”

55 It need only be added that if the relationship between parties is truly that of employer-employee under a contract of service the parties cannot alter the truth of that relationship by putting a different label on it, although if it is ambiguous and capable of being one or the other then the parties can resolve the ambiguity by the agreement which they make with one another: see per Lord Denning MR in Massey v Crown Insurance Co [1978] 1 WLR 676 at 679 as affirmed by the Privy Council in Australian Mutual Provident Society v Allan (1978) 52 ALJR 407 at 409.

56 The overall impression I have obtained from a view of the present facts, as I have summarised them above, is one where the second defendant in managing the kiosk was doing so under the direct and explicit control of the first defendant through Mr Bambacus and Mr Mario Rubino. The purpose was to ascertain her suitability to be a franchisee in the future but where she had been an employee for nearly nine months performing the same work in the kiosk on a day-to-day basis. What changed from 13 November 2004, without any actual termination in employment, was to regard her as “the manager” of the kiosk and to transfer liability to her for operating expenses with compensation for her labour being the net profit before tax instead of a wage – that that amounted to about $322.00 per week speaks much of the clear benefit to the first defendant in adopting the arrangement, but where it maintained control of the premises from where the work was to be done; the equipment and facilities provided; the prices at which plants and flowers were to be obtained and sold; the source for purchasing stock; the hours of trade; use of its own staff in the absence of the second defendant; the trading name of the kiosk as “Inbloom Florist”; the requirement to wear an Inbloom uniform; instruction in occupational heath and safety matters; display of product in the kiosk as directed by the first defendant; use of the first defendant’s storeroom; directions as to the management of the kiosk; and, ultimately, the right in the first defendant to terminate the arrangement at its own will. In my view, the essential resource provided by the second defendant to the arrangement was her labour and, other than handling invoices for payment and custody of money, that was the essential position during her employment by the first defendant since 1 March 2004. It is to be noted in this latter respect that the first defendant retained an insurable interest.

57 In light of the proper approach from the authorities as stated above, I am comfortably satisfied that at all relevant times, and particularly on 17 November 2004, the second defendant was employed by the first defendant under a contract of service. Their relationship, in my view, was that of employer-employee.

58 It is strictly unnecessary to consider whether the relationship between the two defendants was one of agency. To the extent it may be necessary, I think, at the least, that the second defendant was the agent of the first defendant in managing the kiosk and, specifically, in using the trolley in the centre on 17 November 2004 to transport the flowers from the storeroom to the kiosk she was doing so pursuant to the direction and control of the first defendant as its agent.

59 Mr Bell, supported by Mr Andrews, urged the agency relationship by relying on South Sydney District Rugby League Football Club Ltd v News Ltd [2000] FCA 1541 at [131]-[137]; (2000) 177 ALR 611 at 645-646 (per Finn J) and Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41 at 48. As a general proposition, as Finn J recorded in South Sydney District Rugby League Football Club (at [136];646), agency results from consent by one person to act on the behalf and subject to the control of another so as to affect that other person’s legal relations with third parties. Of course, in a very real sense every employee is also an agent of the employer for the purposes of the employment and to the extent stipulated in the employment contract. And, as suggested in Pole v Leask (1863) 33 LJ (Ch) 155 at 161-162 by Lord Cranworth, a person may become the agent of another by the ordinary rules of law and “the ordinary usages of mankind”: see also to a similar effect Commissioner of Taxation v Barrett (1973) 129 CLR 395 and Australian Central Credit Union v Commonwealth Bank of Australia (1990) 54 SASR 135.

60 Therefore, I conclude in presently relevant respects that the true nature of the relationship between the two defendants was that of employer-employee. If that be wrong, it was at least a relationship of principal-agent.

61 There may be no issue that once the second defendant be found to be an employee of the first defendant then it was vicariously liable for any tortious conduct of the second defendant. In Sprod v Public Relations Oriented Security Pty Ltd [2007] NSWCA 319, Ipp JA (with whom Tobias JA and Hislop J agreed) adopted the following statement of principle from what Basten JA (with whom McColl JA and Campbell JA agreed) said in Zorom Enterprises Pty Ltd v Zabow [2007] NSWCA 106 at [21]; (2007) 71 NSWLR 354:

“The underlying principle is not in doubt: an employer will be liable for the act of its employee ‘only if the act is shown to come within the scope of the servant’s authority either as being an act which he was employed actually to perform or as being an act which was incidental to his employment’: Deatons Pty Ltd v Flew [1949] HCA 60; (1949) 79 CLR 370 at 378 (Latham CJ).”

62 As to the position of an agent, in Scott v Davis [2000] HCA 52 at [34]; (2000) 204 CLR 333 at 346 McHugh J said:

“In my view, however, an analysis of the authorities justifies the conclusion that a principal is also liable for the wrongful acts of an agent where the agent is performing a task which the principal has agreed to perform or a duty which the principal is obliged to perform and the principal has delegated that task or duty to the agent, provided that the agent is not an independent contractor. The principal is also liable for the wrongful acts of a person who is acting on the principal’s behalf as a representative and not as an independent principal and within the scope of the authority conferred by the principal”.

63 As to an independent contractor, if such be found contrary to my finding as to the second defendant, then the first defendant as the principal would have no liability in tort for her wrongful conduct: see Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19; (2006) 226 CLR 161.

64 In this case, on the facts found and whether as an employee or agent of the first defendant, I conclude that the second defendant was using the trolley at the time concerned either within the cope of her employment and on a task incidental thereto or as being an act the first defendant was obliged to perform in operating its business and which it delegated performance of to the second defendant. Either way, in my view, the first defendant becomes vicariously liable to the plaintiff for any injury, loss or damage occasioned by the second defendant’s negligence in pushing the trolley.

65 For completeness, although not pleaded by the second defendant in her cross-claim against the first defendant for indemnity, no doubt because agency and not employment was relied upon, s 3(1)(b) of the Employees Liability Act 1991 provides that “the employer is liable to indemnify the employee in respect of liability incurred by the employee for the tort…”. Section 7(a) of the statute gives it effect despite “any other Act or law” so that, in my view and although not pleaded by the second defendant, once she be found to be an employee of the first defendant then the Employees Liability Act springs into operation by its own force to give her a statutory indemnity from the first defendant as employer for any liability to the plaintiff found against her. In any event, and to the extent necessary to cure any pleading point, my view is that Pt 36 r 36.1 of the Uniform Civil Procedure Rules 2005 enables the Court to “give such judgment, or make such order, as the nature of the case requires, whether or not a claim for relief extending to that judgment or order is included in any originating process or notice of motion”. The cross-claim here, in my view, is an originating process by the second defendant as against the first defendant so that in the circumstances found the Employees Liability Act may be called in aid to allow indemnity.

Injury to the plaintiff

66 On the incident occurring, the plaintiff said she “felt very hot in my neck (on the left side) and very bad pain on my (left) shoulder”. That afternoon, or it may have been the next day, she attended Dr Sahagian because the pain worsened. As it happened, Dr Sahagian in a report dated 28 February 2006 noted that the plaintiff presented to the surgery on 17 November 2004 and “complained of severe shoulder pain … Physical examination revealed a bruise over the lateral shoulder. Range of movement was generally restricted by pain.” Dr Sahagian arranged for an x-ray of the shoulder, which was normal, and physiotherapy was prescribed. Due to persistent shoulder pain at review on 20 December 2004, the plaintiff had an ultrasound which was reported as normal.

67 During this initial period after the incident the plaintiff said she was restricted in doing housework, such as vacuuming and ironing, because she could not move her neck and shoulder with the pain; she could do only some cooking, dusting and clothes washing. Her husband during the week for two to three hours a day then started to help doing the vacuuming, clothes washing, hanging clothes on the line and cleaning of the bathrooms and at weekends the plaintiff’s son and daughters assisted with domestic duties, including cooking, cleaning and changing the linen on beds. As to shopping, the plaintiff said for a long time after the incident she could not do it but now she does so on a daily basis assisted by her husband in carrying the bags. This has continued to be the position with domestic assistance. The garden, which beforehand the plaintiff maintained but now is unable to do on a regular basis, was only attended to by her “bit by bit”.

68 The plaintiff continued to see Dr Sahagian for her problems with the neck and should pain, which began to extend down the left arm, and so he referred her to Dr Harper in November 2005 who arranged for an MRI of the left shoulder and a CT scan of the neck. Dr Harper performed surgery to the left shoulder in Prince of Wales Hospital on 8 May 2007. On discharge after two days, the plaintiff found an inability to use her left arm for six or seven weeks and commenced a course of physiotherapy and hydrotherapy for a few months.

69 At the present time, the plaintiff described her shoulder as “very painful … the pain is all the time” and the neck pain “goes and come back”. She has difficulty sleeping as “the pain is just all the time”. Interestingly, in February 2008 she fell down a flight of stairs in the North Sydney Leagues Club and was reviewed overnight at Royal North Shore Hospital but no treatment was given; she said this fall had no effect on her neck and shoulder condition. Since recovering from the May 2007 surgery, the plaintiff has not consulted Dr Harper but continues to see Dr Sahagian for medication for the pain.

70 The plaintiff gave this evidence as to the effect of her neck and shoulder problems:

“Q.You have grandchildren, is that right?
A. Yes. Yes.

Q. And do they come and stay from time to time?
A. Yes.

Q. And how old are they?
A .From ten to two.

…

Q. … are you able to pick the two-year old up?

A. I tell you, just sometimes they grab me and they want me to carry them, and sometimes, your Honour, I try my best but it’s… it’s really very – very hard and very painful for me, and the kids they don’t understand that, you know.

Q.Yes, okay. Have you gone back at all to doing the flowers in church?
A. Now I, you know, I have to help … (not transcribable) .. but first – just divide it sometimes, but they hire cleaner there, and do .. (not transcribable) .. cleaners.

Q. Do you still have your friends to go to do the flowers at the church with?
A. Yes. Yes. Yes.

Q. And do they help you doing things at the church as well?
A. Yes. It’s only six vases.

Q. Do you still go to bingo as often as you used to?
A. Yes.

Q. And do you still enjoy that?
A. Yes.

Q. I assume that your injury doesn’t stop you from playing bingo at all?
A. No, because I use my right hand.”

71 The plaintiff is able to drive a motor vehicle but because of the pain in her neck area is only able to do so for five minutes at most. However, she said before the subject incident she “never” had any neck pain but later admitted to developing neck and left shoulder pain while working at John Sands in the 1980s although she said it stopped when she ceased work at John Sands. Then, she admitted to shoulder and neck pain in the 1990s which was explained by her as “maybe sometimes you sleep on your pillow something and you wake up with pain in the neck or something and you go to the doctor and he didn’t treat you, that’s mean it’s – next day it’s gone”.

72 It was suggested to the plaintiff that she was exaggerating the level of complaint of the effects of pain in her neck and left shoulder. She demonstrated in the witness box the range of movement she had with the left arm and, although accepting no restriction in movement of the shoulder, showed she could only stretch and lift the left arm by holding it with her right hand; otherwise, she said “I have to hold it because it’s very painful … I lift it sometimes, but very painful I have to do this … it just very painful”. Indeed, with the pain she said she could not wash her hair or lift heavy pots in the kitchen or do the vacuuming.

73 After demonstrating the limited range of movement the plaintiff had with the left arm, Mr Cavanagh showed a video film of certain activities by her. The footage covered four days on 6, 7, 8 and 9 August 2008 and focused mainly on her playing Bingo in the North Sydney Leagues Club, including playing poker machines, shopping at a superMarket using a trolley, driving a car, talking to friends in the street and carrying bags. In the ordinary course, one may be cautious in drawing too many inferences from video film because often it provides only a snapshot of a person at a point or points in time. However, this footage of the plaintiff was instructive as it covered a period of about two and a half hours over a four-day period. The observations of the plaintiff’s movements on the film were, in my view of them, quite inconsistent with the nature and level of difficulty she stated in evidence. For instance, and as Mr Cavanagh emphasised during submissions, the plaintiff used her left arm in a normal way, waved both arms around in an animated way while talking, entered and drove the motor vehicle using both hands, carried shopping bags with her left hand, lifted boxes using both hands and arms, unloaded shopping from the car, leaned on her left elbow, selected items from shop shelves using the left arm, used the left arm to steady herself in seeming to climb into a freezer in a superMarket to select products and, most significantly, in performing those tasks gave no appearance of any pain, discomfort or limitation.

74 After viewing the video film, the plaintiff re-affirmed her evidence that she was “in pain all the time … and I’m in pain right now”; she added that “I didn’t say I’m disabled”.

75 Occupational therapy evidence: Glynis Flanagan, an occupational therapist, carried out an assessment of the plaintiff on 14 September 2007 and made a review on 22 April 2009. Two reports by Ms Flanagan on 15 October 2007 and 28 April 2009 were admitted in evidence. The stated purpose of the assessment was to report on the plaintiff’s domestic circumstances and assistance required with personal care and tasks in the home situation – the first interview Ms Flanagan had with the plaintiff lasted for three hours and the second for two and a half hours; it was based essentially on what the plaintiff explained and demonstrated to Ms Flanagan. The plaintiff, in the first report, was said to present with decreased left shoulder movement, decreased left hand grip strength, decreased lifting and carrying capacity in the left upper limb, decreased ability to kneel or squat, left shoulder pain, decreased neck range of movement, neck pain, right upper limb pain, reduced left upper limb strength, anger and frustration with limitations and decreased range of movement. In the result, Ms Flanagan assessed domestic care, including for personal care, in the past of 21 hours per week from the date of the incident to the end of December 2004; 9.25 hours per week from then until surgery in early May 2007; 29.5 hours per week from the date of surgery until mid-June 2007; and 10.75 hours per week thereafter continuing to the date of assessment in September 2007.

76 In the second report, Ms Flanagan assessed the level of care needed by the plaintiff from September 2007 at 6.08 hours per week and then 4.58 hours per week until the review date on 22 April 2009. For the future, Ms Flanagan assessed about 5.5 hours per week for needed domestic care.

77 Ms Flanagan causally related the plaintiff’s condition to the subject fall at the Chatswood centre on 17 November 2004 and was based on her presentation during the assessment. However, it is to be noted that the stated difficulties for the plaintiff were greater in terms of restricted movement than the neck and shoulder pain described in evidence by the plaintiff and, in any event, are to be viewed with the observations of the video film in mind and the wider range of medical evidence now available. Therefore, in my view, Ms Flanagan’s assessment is to be read down to a very significant extent.

78 Medical evidence:This evidence in the case was not extensive. Dr Sahagian’s clinical notes in treating the plaintiff were made available, together with reports from Dr McNaught as to the pain in the shoulders, arms and wrists from the seemingly work-related injuries in the 1980s – at that time, radiological studies of the plaintiff’s neck showed slight disc bulging at the C5/6 level and narrowing at the C7/T1 level. Two reports dated 28 February 2006 and 14 May 2009 from Dr Sahagian were provided. In the first report he noted on the plaintiff’s presentation on 17 November 2004 after the subject incident that she had a bruise on the left shoulder with a range of movement restricted by pain. Dr Sahagian then expressed this opinion:

“Mrs Abu-Ali is suffering persistent disability as a result of the accident in November 2004. Non-operative treatment has included analgesics, anti-inflammatory medication, physiotherapy, exercises and cortisone injection. She has continuous pain in the neck and shoulder. The pain interferes with her sleep. She is unable to perform household chores and has difficulty with shopping, lifting, getting dressed and driving. Her husband has been required to do a lot of the housework. She is presently awaiting surgery and her prognosis is uncertain”.

79 In his second report of 14 May 2009, Dr Sahagian reported surgery by Dr Harper in May 2007 to the left shoulder of an arthroscopy and resultant correction. Dr Sahagian further noted the plaintiff found no benefit from the surgery in relieving the pain, her sleep was disrupted and there was a continuing inability to perform most household chores, including dressing, washing, cleaning and lifting. Wasting about the shoulder was noted with a restriction in all shoulder and neck movements.

80 Dr Sahagian in a letter of 30 September 2009 said he had had consultations with the plaintiff relating to her present injury in the period of nearly five years from 17 November 2004 to 14 August 2009 on twenty-four occasions.

81 Only three reports from Dr Harper were available, all pre-dating the May 2007 surgery he performed, on 2 November, 25 January 2006 and 1 June 2006. Unfortunately, Dr Harper provided no up-dating report or opinion as to the causal nexus of the plaintiff’s shoulder condition with the subject incident and, in particular, he did not refer in the reports which were provided to the plaintiff’s earlier shoulder and neck problems in the 1980s and 1990s.

82 However, Dr H Peters, a medico-legal officer from the South Eastern Sydney and Illawarra Area Health Service, in a letter dated 29 October 2007 stated that the plaintiff was admitted to Prince of Wales Hospital for surgery on 4 May 2007 due to complaints of left shoulder pain which occurred after the subject incident in November 2004 when she said she was hit by the trolley. Dr Peters reported the findings on surgery as “degenerative upper fibres and bursal sided rotator interval abrasions with involvement of the upper fibres of the supraspinatus – no repair was required. The acromioclavicular joint was arthritic.”

83 An orthopaedic surgeon, Professor David Sonnabend, examined the plaintiff on 9 May 2008 and took a history from her of the November 2004 trolley incident. After reciting the symptoms complained of, Professor Sonnabend on examination noted tenderness over the left shoulder and considerable discomfort and pain on forward flexion but with no palpable or visible wasting of the left shoulder muscles which suggested significant ongoing left shoulder activity in the previous four years; however, he thought the plaintiff’s efforts on examination were genuine. The opinion was then expressed by Professor Sonnabend that the plaintiff’s then current shoulder symptoms were “due to traumatic exacerbation (in the accident of 2004) of pre-existing rotator cuff pathology … Generally, these conditions do become pain free or almost so with appropriate rehabilitation, but leave the patient unable to undertake strenuous or repetitive shoulder activity without the risk of symptom recurrence.” Given that the symptoms were viewed as at the more severe end of the spectrum, Professor Sonnabend thought the plaintiff was unable to work as a cook or florist and with a prognosis of no major improvement. He thought three or four sessions of physiotherapy to the shoulder each year would be helpful and occasional steroid injections requiring two or three general practitioner visits per year on an ongoing basis; the estimated cost of this would be $400.00 per annum.

84 On the basis of the available range of shoulder movement, Professor Sonnabend assessed the plaintiff as having suffered 11 per cent permanent impairment of the left upper extremity corresponding to a 7 per cent whole person impairment.

85 Dr Richard Sekel, a consultant in occupational medicine, was qualified by the first defendant to examine and report upon the plaintiff’s condition. He did so on 17 April 2008. Dr Sekel had access to Dr McNaught’s reports of aching pains in the plaintiff’s shoulders, arms and wrists during the period from 1980 to 1988, the evolution at that time of a form of connective tissue disease and carpal tunnel syndrome. In taking a past medical history from the plaintiff, Dr Sekel noted she initially denied any previous neck or shoulder pain but on being confronted with the records from Dr McNaught, which also were in evidence in these proceedings, Dr Sekel reported the plaintiff said “I might have slept badly on one night, and might have seen a doctor”. Then, during discussion with Dr Sekel the plaintiff admitted she had a motor vehicle accident in approximately 1997 and severely injured her right knee which, as she apparently said, meant she required a knee replacement. Perhaps the consultation had not commenced with the best of starts for the plaintiff as to her previous medical history. In any case, Dr Sekel noted also from Dr Sahagian’s clinical notes, also in evidence here, that on 4 February 2008 she had the fall on the stairs of North Sydney Leagues Club and, on examination by Dr Sahagian on 6 February 2008, she “now complains of painful neck, right shoulder, left hip and left knee. Neck tender – range of motion reduced, tender around right shoulder. Tender over left hip with bruising. Left knee swollen and tender”.

86 Dr Sekel proceeded to take a social history, history of present complaint, injuries, treatment, activities since the incident, current status, radiological investigations and physical examination of the neck, shoulders and upper limbs. He then expressed as resulting from the incident on 17 November 2004 this diagnosis and opinion:

“… at most she would only have sustained a soft tissue injury, which would be expected to completely resolve within a maximum of six weeks, without long-term complications. There is no objective evidence of any significant ongoing abnormality of her left shoulder, caused by the accident. However, there was a 28-year history of neck and shoulder problems …

…. due to longstanding arthritis in her left knee, she has been advised that she would require a knee replacement (unrelated to the claimed incident).”

87 As to domestic assistance, Dr Sekel noted that before the subject incident the plaintiff 20 years ago had been diagnosed by a rheumatologist, Dr McNaught, with a connective tissue disorder, a chronic medical condition, and there was the need for a knee replacement. Accordingly, he opined that the plaintiff would have had significantly reduced ability to do domestic chores in any event. He concluded “that she did not sustain a major injury of her left shoulder. Any soft tissue injury that she might have sustained in her left shoulder region on 17/11/04, would not have further impeded her ability to do her pre-accident domestic chores beyond a maximum of six weeks after the incident”.

88 Findings on medical condition:It may be accepted, in my view, that the plaintiff was indeed struck by the trolley being pushed by the second defendant on 17 November 2004 at the Chatswood centre as, despite some earlier doubt, the objective evidence of Dr Sahagian of a bruise on the left shoulder with a restricted range of movement supported her account. I interpose, however, that beyond being struck by the trolley I do not accept that the blow was sufficient to force her to fall to the ground – I confirm my earlier acceptance of the second defendant’s evidence in that respect. It is unfortunate that Dr Harper provided no report of the surgery and its result but to some extent that was relieved by Dr Peters’ report that the arthroscopy showed degenerative abrasions with no need for any repair and where the joint was arthritic. Also, Professor Sonnabend noted no visible wasting in the shoulder muscles so that the present shoulder condition was due to traumatic exacerbation of pre-existing rotator cuff pathology. That, in my view, is consistent with Dr Sekel’s opinion of soft tissue injury to the left shoulder from the subject incident.

89 It seems clear that Professor Sonnabend considered the injury in a more serious light than Dr Sekel, and with an ongoing problem, but where Dr Sekel thought complete resolution occurred within six weeks. I do not think in viewing the medical evidence that one can put aside the subjective evidence of the plaintiff, although, I am satisfied, she was intent to discount the pre-existing condition and to present her incapacity and pain in a most exaggerated way. The objective evidence of the video film affirms that view.

90 In the result, I conclude that from the subject incident the plaintiff sustained a soft tissue injury to her left shoulder as an exacerbation of pathology pre-existing the incident for at least 20 years. The resultant condition did not settle and about two and a half years later Dr Harper found the need to carry out investigative surgery but with no need to make repairs to the left shoulder. By that stage, I would regard the effects of the subject incident as having essentially resolved and any ongoing problems to be the natural course of the pre-existing degenerative condition.

Negligence

91 In the circumstances as they have been found, I accept the submission for the first defendant that there was no evidence to support a finding it was directly negligent. Any liability to the plaintiff it bears must be vicarious due to the conduct of its employee (or agent), the second defendant.

92 The case as put by the plaintiff against the second defendant was that she was pushing a trolley difficult to see through or around and so caused it to strike the plaintiff. As Mr Andrews submitted, “the running of a trolley into the plaintiff was a failure to keep a proper lookout and/or a failure to take appropriate steps for the safety of shoppers within the shopping centre, and accordingly liability would be found as against the Second Defendant”. For his part, Mr Cavanagh submitted what occurred to make out a case against the second defendant could only be because she failed to look where she was going – a casual act of negligence. Mr Bell resisted a finding of negligence against the second defendant on the basis that the trolley did not strike the plaintiff or, if it did, it was not with such force as would have pushed her to the floor or caused any injury.

93 I am satisfied the second defendant failed to keep a proper lookout and struck the plaintiff with the trolley by failing to exercise reasonable care to avoid the presence of customers in the common area. That is negligence. The first defendant has vicarious liability for that negligence.

Contributory negligence

94 In determining contributory negligence a comparison has to be made both of culpability and of the relative importance of the acts of the parties in causing damage: see Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 494. As Mason, Wilson and Dawson JJ remarked in Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 310, the question is whether “the conduct [of the plaintiff] amounted to mere inadvertence, inattention or misjudgement or to negligence rendering him responsible in part for the damage”. It was made plain by King CJ in Fennell v Supervision and Engineering Services Holdings Pty Ltd (1988) 47 SASR 6 at 12 that “misjudgement is not contributory negligence”.

95 The plaintiff did not see the trolley before it struck her even though the trolley was described in evidence as being very large. I think she was simply not looking where she was walking and with an apparent disregard for the surrounding circumstances. She was not keeping a proper lookout so as to take reasonable care for her own safety. The plaintiff was guilty of contributory negligence and, in my view, to a significant extent.

96 In one sense, it may be thought what occurred was a mere misadventure as each party used the centre and their paths met. Neither saw the other. I am unable to say one was more blameworthy than the other. I assess contributory negligence at 50 per cent.

Damages

97 It is clear from the reports of Dr McNaught and Dr Sekel that the plaintiff had not insignificant problems with her shoulder and neck for very many years before the subject incident. However, she did suffer in this incident a soft tissue injury which resulted in a traumatic exacerbation of the shoulder condition. Dr Sahagian as her general practitioner prescribed physiotherapy, which she had for about three months, but on the shoulder failing to settle Dr Harper performed surgery to examine the shoulder without, apparently in the absence of a report from Dr Harper, the need for any corrective procedure. Given the opinion of Dr Sekel, the initial injury should have settled within six weeks but Dr Sahagian saw the relevant nexus of the injury with the incident and continued to treat the plaintiff, including by referral to Dr Harper. I consider up to that point that the course so adopted was reasonable.

98 98However, the review by Dr Sekel of the medical history and of his examination of the plaintiff satisfied me that the exacerbation of the pre-existing condition had resolved following the plaintiff’s recovery from surgery by about the end of July 2007. Professor Sonnabend’s evidence was not inconsistent with this. Then, of course, in February 2008 the plaintiff had the fall on the stairs and, in respect of which, Dr Sahagian noted she “now complains of painful neck, right shoulder, left hip and left knee”. The plaintiff’s subjective evidence as to her condition and ongoing problems related to the subject incident was, as I have found, quite exaggerated and where the objective evidence of the video film over four days in August 2008 was only consistent with a resolution of the incident-related problems.

99 Non-economic loss: Mr Andrews claimed an appropriate assessment would be between 28 per cent and 30 per cent of a most extreme case. In the circumstances found, and particularly with no ongoing problems related to the subject incident but where surgery was performed, I assess non-economic loss at 18 per cent of a most extreme case, that is, $12,000.00 being 2.5 per cent of the maximum of $473,500.00 pursuant to s 16(2) and (3) of the Civil Liability Act 2002.

100 Out of pocket expenses:These were claimed in the amount of $3,262.80 for the past to cover the treatment costs of Dr Sahagian, Dr Harper, radiology and physiotherapy. There was no challenge to the mathematics, although included were six visits to Dr Sahagian after July 2007 when it has been found the injury had resolved – the amount for those visits at $32.50 each is $195.00 which should be deducted giving a resultant amount for past out-of-pocket expenses, which will be allowed, of $3,067.80.

101 On the findings, no amount arises for future expenses.

102 Domestic assistance:The plaintiff said she received assistance after the incident from her husband and children of from two to three hours per day. Ms Flanagan’s report put the weekly amount at 21 hours from the date of the incident reducing to 9.25 hours from January 2005 and increasing to 29.5 hours following surgery in early-May 2007 to mid-June 2007.

103 I have to say that the evidence on this component of loss was slight and imprecise; also, I think the subjective views of the plaintiff, on which Ms Flanagan largely depended, may be discounted for exaggeration. Further, there was no evidence from the plaintiff’s husband or children. Nevertheless, I think some domestic care would have been required after the incident having in mind the views of Dr Sahagian, Professor Sonnabend and the pre-operation reports by Dr Harper.

104 I will allow 7 hours per week for the period from 17 November 2004 to 31 July 2007 (140 weeks) at the agreed rate of $21.50 per hour. The resultant amount is $21,070.00.

105 Summary of damages:The damages to which the plaintiff is entitled are $12,000.00 for non-economic loss, $3,067.80 for past out-of-pocket expenses and $21,070.00 for past domestic care. The total is $36,137.80. After allowing for a 50 per cent reduction for contributory negligence, the net verdict for the plaintiff should be $18,068.90.

Conclusion

106 The plaintiff is entitled to verdicts against each of the first and second defendants in the amount of $18,068.90. The second defendant should have a verdict against the first defendant on the cross-claim for indemnity in respect of the liability incurred by the second defendant to the plaintiff, including as to any costs.

107 I will hear the parties on costs before making final orders.

108 In the determination of this matter I make the following orders -

(1) Verdict and judgment for the plaintiff against the first defendant on the action in the amount of $18,068.90.

(2) Verdict and judgment for the plaintiff against the second defendant on the action in the amount of $18,068.90.

(3) First and second defendants to pay the plaintiff’s costs of the proceedings, liability for which to be joint and several, on the ordinary basis in an amount as agreed or assessed.

(4) Verdict and judgment for the second defendant/cross-claimant against the first defendant/cross-defendant on the cross-claim for indemnity in an amount to satisfy the judgment plus costs against the second defendant in favour of the plaintiff.

(5) First defendant/cross-defendant to pay the second defendant/cross claimant’s costs of the cross-claim and of the action on an indemnity basis

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