Andreou v Woolworths Limited
[2013] NSWDC 83
•07 June 2013
District Court
New South Wales
Medium Neutral Citation: Andreou v Woolworths Limited [2013] NSWDC 83 Hearing dates: 16, 17 & 24 April 2013 Decision date: 07 June 2013 Before: Levy SC DCJ Decision: 1.Verdict and judgment for the defendant
2.The plaintiff is to pay the defendant's costs on the ordinary basis unless otherwise ordered;
3.The exhibits may be returned;
4.Liberty to apply on 7 days notice if further orders are required.
Catchwords: TORTS - negligence - occupiers liability - plaintiff fell on wet floor in supermarket due to entry of rainwater through ceiling - whether obvious risk - whether breach of duty of care - whether contributory negligence; DAMAGES - assessment of claimed heads of damage Legislation Cited: Civil Liability Act 2002, s 5B, s 5D, s 5F, s 5G, s 15(3), s 16
Uniform Civil Procedure Rules 2005, r 31.6Cases Cited: Graham v Baker [1961] HCA 48; (1961) 106 CLR 340
Mason v Demasi [2009] NSWCA 227
Strong v Woolworths [2012] HCA 5; (2012) 246 CLR 182Category: Principal judgment Parties: Lisa Marie Andreou (Plaintiff)
Woolworths Limited (Defendant)Representation: Mr A Lidden SC with Mr M Maxwell (Plaintiff)
Mr J Catsanos (Defendant)
Brydens (Plaintiff)
HBA Legal (Defendant)
File Number(s): 2012/44494 Publication restriction: None
Judgment
Table of Contents
Nature of case
[1]
Background
[2]
Credit and reliability of testimony
[3]
Issues
[4]
Facts
[5] - [73]
Plaintiff's circumstances and background
[6] - [21]
Initial treatment following the fall
[22] - [24]
Findings as to injury
[25] - [30]
Medical treatment and evaluations
[31] - [66]
Disabilities
[67] - [70]
Work effects
[71]
Domestic effects
[72]
Mitigation
[73]
Issue 1 - Circumstances of injury
[74] - [116]
Plaintiff's version
[75] - [81]
Mrs Fox's version
[82] - [87]
Ms Wilson
[88] - [99]
Incident report
[100] - [108]
Factual conclusions concerning occurrence
[109] - [116]
Issue 2 - Whether obvious risk
[117] - [120]
Issue 3 - Negligence
[121] - [134]
Issue 4 - Contributory negligence
[135] - [137]
Issue 5 - Assessment of damages
[138] - [202]
Life span
[139]
Non-economic loss
[140] - [144]
Economic loss
[145] - [161]
Superannuation
[162]
Past domestic assistance
[163] - [191]
Future domestic assistance
[192] - [196]
Future treatment
[197] - [200]
Past out-of-pocket expenses
[201]
Summary of damages assessment
[202]
Disposition
[203]
Costs
[204]
Orders
[205]
Nature of case
By statement of claim filed on 10 February 2012, the plaintiff, Lisa Marie Andreou claims damages for alleged negligence against the defendant, Woolworths Ltd, in respect of personal injuries she sustained in a fall on the wet floor at the defendant's supermarket premises, at Moorebank, NSW on Saturday, 14 April 2009. The proceedings are governed by the provisions of the Civil Liability Act 2002 ["CL Act"].
Background
On the evening in question, the plaintiff was walking in an aisle of the defendant's supermarket premises at Moorebank when she slipped on water on the floor of that aisle. Immediately beforehand, she noticed that a portion of the ceiling had been leaking rainwater onto the floor of the premises and that water was fast spreading on the floor. The plaintiff claimed that as she turned to walk away from the leaking water, it appeared under her feet. She then slipped on the wet floor, at which time she fell over, and sustained soft tissue injuries to various parts of her body. The plaintiff said that after she fell, a nearby portion of the ceiling collapsed. The extent and cause of her injuries, and the extent of the ongoing effects of those injuries, were matters of dispute within the medical evidence.
Credit and reliability of testimony
A factual contest emerged between the evidence of the plaintiff and her mother on the one hand, and the manager of the supermarket on the other, as to their perceptions of the sequence and timing of events that led to the plaintiff's injury. I am satisfied that each of these witnesses gave their evidence honestly, to the best of their understanding and recollections. The initial fact finding task requires a determination of which of the respective versions of the sequence of events described in the evidence is probably correct.
Issues
The issues that arose for determination in these proceedings can be stated as follows:
Issue 1 - The circumstances of the plaintiff's injury;
Issue 2 - Whether the injury sustained by the plaintiff was due to the materialisation of an obvious risk;
Issue 3 - Whether the defendant was, in breach of the duty of care it owed to the plaintiff, and therefore negligent;
Issue 4 - Whether there was contributory negligence on the part of the plaintiff, and if so, to what extent;
Issue 5 - The assessment of the plaintiff's damages.
Facts
In the paragraphs that follow I set out my findings of fact concerning the plaintiff's background circumstances, the general details of the accident, and the effects of the accident on the plaintiff.
Plaintiff's background circumstances
The plaintiff was born in 1984. At the time of her injury which is the subject of these proceedings, she was aged 25 years. She is presently aged 29 years. The plaintiff had left school in Year 11, having obtained the School Certificate the previous year. She then completed a TAFE course in tourism but was unsuccessful in obtaining work in that industry. In 2001 she obtained employment with the defendant at its Liverpool store, where she worked as a cashier and in the delicatessen department. She initially commenced working part time and then built this up to full-time work.
Before the accident which is the subject of the present proceedings, the plaintiff had encountered a number of illnesses and health problems for which she has had treatment, including surgery. In addition, she has had other injuries. Some of those matters were briefly referred to in the medical evidence. Some were the subject of claims for compensation in respect of which the plaintiff's present solicitors, Brydens, have acted for her. Only limited medical evidence was tendered regarding those matters.
On a variously described date, referred to as being in December 2003 or 29 June 2004, whilst in the employment of Woolworths Ltd, the plaintiff slipped whilst coming out of a cool room. In that regard, the plaintiff's chronology, Exhibit "A", refers to a slip and fall injury at work on 29 June 2004. When that entry in the plaintiff's chronology is examined against the medical evidence, the entry appears to represent a mistaken interpretation of the plaintiff's treating general practitioner's note of that date, which refers to an injury occurring in December 2003, resulting in a painful back and associated problems with lifting and bending forward.
In that incident, as the plaintiff tried to steady herself, she fell and jarred her back, her right shoulder and she injured her right leg. This injury led to the plaintiff experiencing increasing and persisting low back pain and right leg pain, with associated restrictions in activities and mobility. That injury involved a musculo-ligamentous contusion with aggravation of degenerative changes in her lumbar spine.
In 2004 the plaintiff resigned her employment with Woolworths Ltd and then obtained contract employment with the Department of Fair Trading involving customer service at a counter and computer data entry. By 2005, this had led to a chronic condition of the back and right leg, with limitations on employment. The plaintiff stated that by August 2005, her right shoulder problems had gradually recovered.
The plaintiff found the work at the Department of Fair Trading difficult because her work duties required that she had to get up and down, and that work ended a month after the expiry of her contract. She then obtained work as a shop assistant with a Soul Pattinson Pharmacy.
In April 2005, the plaintiff had another injury. This occurred whilst she was leaving some retail premises, the plaintiff slipped and fell on stairs. In that incident, she injured her left shoulder, which became dislocated. She stated, and the hospital records tend to confirm, that her shoulder had become relocated whilst she was being positioned for an x-ray at Liverpool Hospital. This injury marked the beginning of a series of left shoulder dislocations over time, and for which she later had stabilisation surgery. The cause of the plaintiff's left shoulder problems, which led to that surgery, was the subject of controversy within the medical reports that were tendered.
The plaintiff's pre-accident personal circumstances were that she had married in February 2008. By September 2008 she had separated from her husband. At the time of the subject accident, the plaintiff had a daughter who was aged almost 3, and a son who was aged 3 months. Those children are presently aged almost 6 and 4 years. Her son has been diagnosed with a form of autism that requires considerable additional parental care, attention and special schooling. The plaintiff has lived in her mother's home throughout her life.
At the time of the subject accident, the plaintiff was not in employment, and she was not actually looking for light work. Having regard to her need to attend to her family commitments, it was her intention to place her son in childcare and seek part-time employment at some time in 2011, and to seek some receptionist type work with a view to moving to full-time employment in 2015, when both of her children would be at school.
The plaintiff's treatment records relating to a fall she suffered on 4 July 2005, indicated that on that occasion she had slipped and tumbled down 7 steps and complained of pain in her left shoulder radiating to her left elbow. The ambulance records relating to that event described a visible deformity of the left upper arm with abnormal angling being seen at that time. X-rays showed normal alignment of the gleno humeral joint and no abnormalities.
In August 2005, the plaintiff was continuing to experience back pain and referred pain in her right leg, leading to a significant restricted and degraded lifestyle. She also gave a history of having back pain and right leg pain before the subject accident, aggravated by prolonged sitting. By August 2005, orthopaedic opinion was to the effect that the plaintiff would not be able to apply herself to physically demanding work requiring bending and lifting. At that time she was assessed as being restricted in her ability to carry out work involving sustained or prolonged sitting.
The plaintiff stated that by the time she obtained work with Soul Pattinson in 2005, her back problems from the 2003 injury had resolved. That statement has to be viewed in light of the medical evidence.
The plaintiff's general practitioner's records reveal pre-injury notes summarising the histories provided by the plaintiff and included depression, anxiety, mood swings, weight problems (2003), family difficulties (2004), back and lower leg pain (2004), a painful left shoulder (2005). The general practitioner's notes also make a number of references to low back pain and left shoulder pains before the subject accident. The plaintiff underwent gall bladder surgery in October 2006. She has also been diagnosed with diverticular disease in the sigmoid colon and has had a biopsy for gastritis.
On 27 February 2009, just 8 weeks before the subject accident, the plaintiff's general practitioner's records noted the plaintiff had complained of a sore neck and headaches: Exhibit "E", p 1.
On 3 April 2009, just 11 days before the subject accident, the plaintiff's general practitioner recorded some kind of neck problem, for which she was referred to a Dr Gorman for an opinion. There was no report from Dr Gorman. There was no clarification by evidence from the general practitioner concerning the context and significance of that problem.
In 2012, the plaintiff had completed a 6 month part-time course at Liverpool TAFE in beauty services and she has obtained a Certificate III in beauty services, which has qualified her to obtain work in a beauty salon. Her present plan is to pursue work either as a receptionist, or in a beauty salon, when her circumstances permit this.
Initial treatment following the fall
Following the fall which is the subject of these proceedings, on leaving the premises of the defendant she went home, but after experiencing a bad headache and neck soreness, her mother took her to Liverpool Hospital for medical attention.
At about 20.19 hours on 14 April 2009, the plaintiff was attended to by the triage nurse at the emergency department of Liverpool Hospital, for assessment and treatment, following the fall in question. The summary prepared by the hospital included the following text:
"...
She slipped on a wet surface falling onto her right side. She reported pain in her upper right leg and upper thoracic region post fall. She was still able to weight bear and mobilise post injury. She denied any head trauma or LOC.
On examination she had elictible tenderness in the right erector spinae group. There was no bony tenderness appreciated and she had only minor limitation in hip flexion on the right side, external and internal rotation were preserved.
The clinical diagnosis was muscular strain secondary to low risk mechanism fall.
Given her history of PUD, she was advised to avoid NSAID therapy and take regular paracetamol for the next few days. She was also advised to visit her LMO if the pain was not improving in 3-4/7 time."
The handwritten notes within the Liverpool Hospital notes (at page 121 of Exhibit "1") were to the effect that at that time, on examination, there was no limitation of the range of movement in the plaintiff's left and right shoulders.
Findings as to injury
In her oral evidence, in which she described the incident, the plaintiff stated that in the fall, she injured her left shoulder when she landed on it, and as she tried to push herself up, at which time she turned and twisted herself as she rolled onto her right side. That account is at variance to the history recorded in the hospital notes, in which she reportedly fell on her right side. Those hospital notes were not prepared as part of a liability investigation and in the context of this case, their true utility is to document the plaintiff's complaints of injury at that time: Mason v Demasi [2009] NSWCA 227.
There was an absence of any mention of an actual injury to the left shoulder in the hospital notes. There was no reference in the hospital notes that could reasonably base an inference that the plaintiff had suffered any significant injury to the left shoulder in the fall in question. It was not suggested that the hospital notations were incomplete or inaccurate.
It is relevant to review the plaintiff's treating general practitioner's records: Exhibit "E". In those notes, at page 2, it is noted that on 17 April 2009, 3 days after the subject accident, no mention is made of an injury to the plaintiff's left shoulder: Exhibit "E", p 2. Instead, the focus of the examination on that date was the plaintiff's back and neck. The subsequent notes make no reference to a left shoulder complaint until 21 January 2010, and then again on 23 April 2010, many months following the accident. On 23 April 2010, the complaint was of left shoulder subluxation, in the context of a fall at Woolworths when she "fell onto her left side": Exhibit "E", pages 6 and 8.
Before that date, there were notations in Exhibit "E" of right shoulder complaints on 7 May 2009 (p 3); 18 December 2009 (p 6).
I do not accept that the plaintiff injured her left shoulder in the incident in question. I consider it very unlikely that the plaintiff would not have complained of such an injury at the hospital if she in fact suffered an injury to that shoulder, especially given her earlier history of injuries. I find that the initial fall, insofar as it involved the plaintiff's left shoulder, did not cause an injury to the structures and supporting tissues of her shoulder joint. At the time of the fall the plaintiff was not aware that anything had happened to her left shoulder: Day 1, T19.50 to T201. Were it otherwise, I consider that the plaintiff would have complained of left shoulder pain to her general practitioner closer to the time of the accident, rather than months later, as described in paragraph [27] above.
At the time of the accident, that plaintiff was aware of feeling sore in her right leg, and she noticed that she had pain in her neck and her lower back, with pain running down her left side from her neck to the left side of her left shoulder, and across her shoulder blades. I accept that the plaintiff suffered an injury to her neck and the area across the top of her shoulder blades, as well as soft tissue injuries to her lumbar and upper thoracic spines.
Medical treatment and evaluations
In the events that followed her injury, the plaintiff has undergone a considerable amount of radiological imaging in the course of medical consultations, treatments and assessments, in respect of those injuries. Not all the reports of those consultations and assessments were tendered in evidence in these proceedings. The reason for the non-tender of some of those materials was not fully explained in the evidence.
Counsel for the plaintiff sought to explain that the absence of some relevant treatment reports was because the plaintiff's treating doctors had failed to provide reports that had been requested. I do not accept that such an explanation applied to the treating orthopaedic surgeon who operated upon the plaintiff, as there was no evidence within Exhibit "J" to suggest that surgeon, Dr Nouh, had ever been asked to furnish a report to the plaintiff's solicitor.
Exhibit "J" comprised a bundle of copy letters of reports to treating doctors and some notes. None of those materials supported the assertion that it should be inferred that the treating doctors had given an outright refusal to provide the requested reports.
In any event, where a relevant treating practitioner refuses to provide such reports, the Uniform Civil Procedure Rules 2005 provide a remedy, including to obtain evidence before trial on commission, with costs sanctions if the circumstances merit such an order: UCPR r 31.6. That procedure was not followed in this case. It seems that the plaintiff's solicitor simply accepted the non-provision of reports by some treating doctors, and instead sought to rely upon selected subpoenaed documents and medico-legal reports from non-treating doctors, a risk-laden pathway to proof of substantive issues.
In the paragraphs that follow, as an aide to my analysis of the medical evidence, I set out the chronology of the medical contacts the plaintiff has had, as extracted from the exhibits that were tendered by the parties.
On 18 April 2009, at the request of her general practitioner, the plaintiff underwent CT scanning of her chest and cervical spine. No abnormalities were detected in her cervical spine on that occasion.
On 26 May 2009, at the request of her general practitioner, the plaintiff underwent x-rays of her thoracic spine. This investigation revealed small osteophytes adjacent to the vertebral endplates in the mid thoracic spine, in keeping with early degenerative changes.
On 30 April 2010, at the request of her general practitioner, the plaintiff underwent x-ray imaging of her left shoulder and right foot, as well as ultrasound examination of her left shoulder. These x-rays were reported as revealing no abnormality. The result of ultrasound of the left shoulder was reported to be in keeping with bursitis of that shoulder.
On 5 May 2010, the plaintiff's general practitioner, Dr Diddee, referred the plaintiff to Associate Professor John Ireland, a consultant orthopaedic surgeon, for an opinion and for the management of her recurrent left shoulder subluxation.
On 28 May 2010, at the request of her general practitioner, the plaintiff underwent x-ray imaging of her right shoulder and lumbar spine, as well as ultrasound examination of her right shoulder. These x-rays were reported as revealing no abnormality. The result of ultrasound of the right shoulder was reported as showing a slight thickening of the sub-scapularis bursa of that shoulder.
On 3 June 2010, and again on 15 July 2010, the plaintiff saw Dr Fred Nouh, an orthopaedic fellow for Associate Prof Ireland, for a problem of recurrent subluxation and aching of the left shoulder. It appears that Professor Ireland passed the patient over to Dr Nouh. MRI scans and physiotherapy were suggested by Dr Nouh. At the second of those consultations, it was considered that the symptoms were unlikely to improve without surgery, and this was then booked to take place at Fairfield Hospital. No evidence was tendered from Dr Nouh identifying the cause of the recurrent subluxations of the left shoulder which he treated.
On 8 July 2010, at the request of Associate Prof Ireland, or possibly Dr Nouh, the plaintiff underwent a multi-planar sequenced MRI examination of the left shoulder. This showed some more than usual slight rounding of the antero-inferior glenoid labrum, with a suggestion of a slight irregularity and deformity of the supero-lateral humeral head, suggestive of a previous shoulder injury. The other structures were described as being within normal limits.
On 15 July 2010, the plaintiff was reassessed by Dr Nouh in conjunction with her left shoulder MRI scan. At that time the plaintiff was recorded as having provided a history of two episodes of anterior shoulder subluxation in the last two weeks, one of which having occurred when she was sleeping. A complaint of left shoulder ache was also recorded. A clinical examination revealed some positive anterior apprehension signs and tenderness along the anterior and posterior joint lines. Dr Nouh recommended an anterior stabilisation procedure and a date was booked at Fairfield hospital for the procedure to take place. From other records, it appears that this surgery took place on or about 6 June 2011.
On 20 December 2010, at the request of her general practitioner, the plaintiff underwent x-ray imaging of her left foot which revealed minor degenerative changes in the talo-navicular joint, some deformity of the hallux, and widening of the interspaces between the 1st and 2nd, and the 4th and 5th toes, with a small spur appearing on the plantar surface of the calcaneum.
On 16 May 2011, at the request of her solicitors, the plaintiff was assessed by Dr Raymond Wallace, a consultant orthopaedic surgeon. In his report dated 31 May 2011, Dr Wallace expressed the opinion that the plaintiff had sustained a musculo-ligamentous strain to the cervical spine, a traumatic sub-luxation of the glenohumeral joint of the left shoulder, and temporary aggravation of pre-existing instability of the left shoulder. Dr Wallace thought these conditions were caused by the fall in April 2009. Dr Wallace had assumed the plaintiff's left shoulder was injured in the fall in question and it is clear from his report that he did not have a detailed history of previous left shoulder problems.
On 6 June 2011, the plaintiff was admitted to Fairfield Hospital for an elective arthroscopic procedure by Dr Nouh, involving anterior stabilisation of her left shoulder, which proceeded without complications. According to the discharge summary, the plaintiff was discharged the following day, without a recorded diagnosis, against a stated background of left shoulder instability.
The description in the discharge summary of the operation referred to an operative finding of a labral tear in the region of the glenohumeral joint of the left shoulder. The summary did not give any indication of the tear found at operation being due to an injury on 14 April 2009. The procedure in question involved sutures in 4 anchor locations. The procedure was carried out by Dr Nouh. There was no report from Dr Nouh concerning the need or cause for this procedure, nor any follow up findings.
On 5 July 2011, at the request of Dr Nouh, the plaintiff underwent a post-labral repair x-ray of the left shoulder. At that time no abnormalities were reported.
On 6 July 2011, the plaintiff was examined by Dr Nouh 4 weeks post shoulder stabilisation surgery.
On 9 July 2011, at the request of her general practitioner, the plaintiff underwent x-ray imaging of her left shoulder. No abnormality was detected on this x-ray. There was no stated reason in the records for that x-ray imaging being undertaken.
On 11 July 2011, the plaintiff attended Liverpool Hospital Emergency Department at about 11.30am. The presenting problem was listed as being a fall involving a left elbow injury. The triage comment went on to state describe the plaintiff having had surgery to her left shoulder 5 weeks earlier, and that the shoulder was still repairing, in a sling.
The comment went on to state that on the previous Saturday (the day before, namely 10 July 2011) she had fallen on a grate, injuring the same side, and on her presentation to the hospital, she was complaining of elbow pain. The hospital notes record that there were no obvious signs of injury on presentation. She was given analgesia at 12.30pm. The Resident Medical Officer in the Emergency Department recorded a history following the fall the previous day of gradual increasing pain in the left elbow and in the left shoulder.
My interpretation of that note was that the plaintiff was due to have the condition of her left shoulder reviewed, possibly by the treating surgeon, the following Friday: Exhibit "1', page 114. There was no evidence of whether that review had taken place, and if so, by whom, and with what result. This seems to me to be an important lacuna in the medical evidence given the further fall on 10 July 2011 which gave rise to shoulder complaints that remain unassessed.
On 19 July 2011, the plaintiff was seen by Dr Nouh 6 weeks post shoulder stabilisation surgery.
On 10 August 2011, at the request of her general practitioner, the plaintiff underwent x-ray imaging of her left shoulder. At that time no abnormality was detected on this x-ray.
On 16 August 2011, the plaintiff was seen by Dr Nouh 10 weeks post shoulder stabilisation surgery. There is no evidence that a report was ever requested by the plaintiff's solicitor from this treating surgeon.
On 17 October 2011, at the request of her general practitioner, the plaintiff underwent an x-ray examination of the lumbar spine. This investigation was reported as showing relatively minor spondylitic change characterised by mild marginal osteophyte formation. Some mild sclerotic change / lucent changes were seen around the sacro-iliac joints.
On 7 December 2011, the plaintiff was seen by Dr Nouh for consultation regarding her right heel spurs. A diagnosis of plantar fasciitis appears to have been made at that time.
On 2 April 2012, at the request of her solicitor, the plaintiff was assessed by Dr Wallace for a second time. In his report which followed that consultation, Dr Wallace noted the plaintiff had undergone an arthroscopic stabilisation procedure on the left shoulder joint. Dr Wallace thought that a proportion of the left shoulder disability was due to a pre-existing condition of that shoulder occasioned in a fall in 2005. Dr Wallace was of the view that there was no evidence that an injury was suffered by the plaintiff in her lumbar spine as a result of her fall in April 2009. Dr Wallace expressed a guarded prognosis for further recovery of function in the cervical spine and left shoulder.
On 16 August 2012, at the request of the solicitor for the defendant, the plaintiff was examined by Dr David Maxwell, a consultant orthopaedic surgeon. At page 5 of his report, Dr Maxwell expressed his opinion in rather limited terms as follows:
"Lisa Marie Andreou has previously been compensated for a work related injury to her back which she states also affected her right leg after a twist and fall in the course of her work in 2003. She was subsequently awarded a lump sum compensation of $30,000.00.
She fell down some stairs in 2005 and dislocated her left shoulder. She is morbidly obese and states that she is experiencing pain in her neck, lower back and thoracic spine between the shoulder blades which she alleges is due to a fall in 2009 while at Woolworths Supermarket. She subsequently had an operation for recurrent dislocations of her left shoulder in 2011 and her shoulder is now stable."
In addressing the questions asked of him by the defendant's solicitor, Dr Maxwell stated that the plaintiff was morbidly obese and clinically depressed. He said there was no pathological cause of the plaintiff's back, right leg and neck pain, and he thought her complaints were consistent with her obesity (which he said is known to cause some facet joint overload) and underlying depression. Dr Maxwell considered there were obvious discrepancies between the plaintiff's symptom presentation and the clinical findings. His opinion did not elaborate upon that statement with reasons, other than to say that chronic pain is shown (sic) to be due to psychosocial factors rather than physical ones, and this is also applicable to neck pain. There was no opinion from a psychiatrist or a psychologist to elaborate upon the issue of the plaintiff's depression, its cause, and the related matters raised by Dr Maxwell.
Dr Maxwell also stated that in his view, the plaintiff has completely and totally recovered from any minor soft tissue contusion sustained in the incident, without any recurrent impairment in relation to the cervical and lumbar spine.
On 23 August 2012, at the request of Dr Gottis-Graham, a rheumatologist, the plaintiff underwent CT scanning of her cervical spine. This revealed a mild loss of curvature of the spine, possibly due to positioning or muscle spasm. Dr Gottis-Graham signalled the need for an MRI study to be undertaken. No historical or explanatory reports from Dr Gottis-Graham were tendered. In the context of the plaintiff's ongoing neck problems, this omission is difficult to understand.
On 26 September 2012, at the request of Dr Gottis-Graham, the plaintiff underwent a multi-planar multi-sequenced MRI scan of the cervical spine. This was reported as showing early multilevel degenerative change and dorsal disc bulging without cord or nerve root impingement.
On 15 October 2012, at the request of the solicitor for the plaintiff, Dr Wallace was asked to consider the report of Dr David Maxwell dated 16 August 2012, that had been served by the defendant. His own opinions remained unaltered notwithstanding the opinions of Dr Maxwell, which I infer to be those expressed in his report dated 16 August 2012.
On 14 December 2012, at the request of the solicitor for the defendant, Dr Maxwell commented upon matters raised with him in correspondence by the solicitor for the defendant. That initiating correspondence from the instructing solicitor was not tendered in evidence. Dr Maxwell commented on a number of radiological investigations. He concluded from his review of those investigations, that his earlier expressed opinions remained unaltered.
Disabilities
The plaintiff continues to have difficulties with her left shoulder, her neck and her interscapular region. These difficulties consist of pain, discomfort and a restricted range of movement of those parts. She also has difficulty sitting and standing for prolonged periods. She finds her pain is made worse by abduction of her left arm, carrying out overhead tasks with her left arm, or on certain movements. She is restricted in lifting heavier objects. She also has an unrelated heel spur on the plantar surface of her left foot and some bony abnormalities of her foot.
I find that the plaintiff's left shoulder problems are due to pre-existing causes, and not due to the fall in question. In arriving at that finding I have preferred and accepted Dr Maxwell's opinion to the effect that the plaintiff's left shoulder problems, including pre-operative recurrent subluxations, were due to pre-existing causes, and not due to the fall in question.
To the extent that in his report dated 31 May 2011, Dr Wallace states a contrary view, to the effect that a proportion of the plaintiff's left shoulder disability is due to a pre-existing instability resulting from a previous fall he identified as being in 2005, probably a reference to the fall on leaving the cool room, I consider that opinion was based on an incomplete or incorrect history, and I do not accept it. I have not accepted that the plaintiff suffered an actual injury to her left shoulder in the fall in question. Dr Wallace's opinion did not seek to apportion the attributability between the relevant events, and this was not further clarified by other evidence. I prefer Dr Maxwell's analysis that the recurrent shoulder problems were due to an underlying problem, and not the trauma of the fall in question.
I therefore find that the plaintiff's ongoing difficulties relating to the fall in question are limited to her neck pain and associated restrictions.
Work effects
The plaintiff considers that there is a range of her pre-injury work duties that she is no longer capable of performing due to her injuries. Those matters will be considered in the context of analysing the claim for economic loss.
Domestic effects
The plaintiff has stated that she has found that her ability to carry out her pre-injury household duties and domestic tasks has been impaired. Those matters will be considered in the context of analysing the claim for domestic assistance.
Mitigation
The plaintiff was referred for radiological investigations and she has appropriately sought medical advice and treatment. The defendant did not make the submission that the plaintiff had unreasonably failed to mitigate the effects of her injuries.
Issue 1 - Circumstances of the plaintiff's injury
The determination of the circumstances of the plaintiff's injury, from the perspective of ascertaining liability for the plaintiff's injuries, requires an evaluation of the evidence of the plaintiff, her mother, Mrs Fox, the duty Manager of the defendant's store, Ms Wilson, and the relevant documentary evidence.
The plaintiff's version
Before her accident, the plaintiff had been a regular visitor to the Woolworths supermarket at Moorebank, visiting sometimes daily, sometimes weekly. She said that on a previous occasion earlier in 2009 when she had been in the store, she had seen buckets on the floor with water dripping into them. They were located in the aisles, towards the back of the store, where the meat section was located. On that occasion, the plaintiff said the water in the buckets was coming from the ceiling slowly, but it was not on the floor around the buckets. She was unable to identify the time when she made this observation, other than that it was the beginning of 2009, and the buckets were towards the back of the store, near the cold section. The plaintiff saw no such buckets, there or anywhere else in the store, on the day of the subject accident.
On the day of her accident, the plaintiff said she had arrived at the supermarket at about 7.00pm, with her mother. She said that when she walked into the store it was not raining outside, but after she had entered, she could hear it had started to rain heavily, as the rain had sounded loud, and that it had also hailed "a tiny bit", and then stopped.
The plaintiff said that she had been in the supermarket for about 10 to 20 minutes before she fell. She said that she was in the aisle that contained hair products and shampoos. She said she had not noticed any buckets located on the floor in the aisle where she was located. She said that as she proceeded along the aisle and had reached a point near the end of the aisle, she noticed some water on the floor. She said this was located towards the back of the store. She said she then looked up and saw water coming out of a vent in the ceiling. She described the flow of the water onto the floor as being "like a turned on tap". She later described the water as spreading fast.
The plaintiff stated that she then turned to her left in order to turn around and walk back down the aisle in the opposite direction to where the water was located, in order to leave, she then slipped and fell onto her left shoulder, then tried to roll back onto her right side. In those events she said that she also hurt her neck in the area across the shoulder blades, as well as her lower back.
Critically, the plaintiff said that as she turned to walk away and before she had slipped, she had not noticed that water had "got under" her feet. She further stated that after she had fallen, and before she had left the premises, she had heard a very loud sound, which to her had sounded as if the roof was collapsing two aisles away from where she was located. The plaintiff described the area of water she noticed after her fall to be "probably" 2 metres, which from the context, I took to be a reference to 2 square metres.
The plaintiff later clarified the timing of these events by stating that the ceiling had collapsed some 20 to 30 seconds after she had fallen. The plaintiff said she then left the store 15 to 20 minutes later.
The plaintiff said that after her fall, a store employee walked over to help her to get up off the floor. The plaintiff said that after this person had helped her, she was asked to leave the store, and she complied. The plaintiff stated that she returned the next day to fill out an incident report form, but she was unable to do so on that occasion, so she left and returned on a later occasion, at which time she then filled out an incident report.
Mrs Fox's version
The plaintiff's mother, Mrs Mary Fox, gave the following account of her recollection of the events surrounding the accident.
Mrs Fox said that whilst she was inside the supermarket, she was aware from the noise that was apparent from within, that it was raining outside. She was unable to state how heavy the rain was at that time. She stated that inside the store she was aware of the presence of a couple of buckets located on the floor towards the back of the store, catching water dripping from the ceiling. This was in contrast to the evidence of the plaintiff, who saw no such buckets. Mrs Fox stated that she and the plaintiff were in the store for about 20 minutes to half an hour before the fall.
In answer to a leading question asked of Mrs Fox on day 2 of the hearing, she said that water was dripping from the ceiling for the whole of the time whilst buckets were on the floor: Day 2, T42.42. She said that during that time, there were no announcements within the store suggesting or requiring that customers should leave the store.
Mrs Fox stated that the roof (by which she meant ceiling) had collapsed before the plaintiff had fallen: Day 2, T53.13. This was in contrast to the evidence of the plaintiff, who said the collapse occurred some 10 - 20 seconds later. Mrs Fox stated that she was in the aisle where the plaintiff fell but she had not actually seen the plaintiff fall. She said she had walked ahead of the plaintiff (towards the direction of the end of the aisle) and she had her back to the plaintiff at the time. She stated that she heard a loud noise that sounded like a big crash, and when she had turned, the ceiling had caved in. She said that at the time she turned, she saw the plaintiff lying on the floor on her left shoulder. She said the incident occurred a few metres away from where the buckets were located. The buckets were not located in an aisle, but they were at the bottom of the aisle, towards the back of the store.
After the ceiling collapse, Mrs Fox saw a very large amount of water gushing in from the ceiling above. At the time she first saw the plaintiff on the ground, she said she observed the plaintiff on the ground with a large pool of water around her.
Mrs Fox stated after these events she saw a lady rush to the scene. That person told her the store was being evacuated. In those events Mrs Fox said she and the plaintiff were told they should come back the next day to report the incident.
Ms Wilson's version
The defendant called Ms Kylie Wilson to give evidence. She has been a duty manager at the defendant's Moorebank store for 10 years. She stated that the defendant's store was leased by the defendant as part of a larger building complex that comprised the shopping centre. She started her shift at the store at 4.00pm on the afternoon in question.
Ms Wilson stated that when she had started work at 4.00pm on the day in question, as a matter of routine, she would have walked around the store as part of the hand-over procedure and in the course of her duties supervising the stacking of shelves from pallets placed in the various aisles. She stated that during the afternoon she had also been periodically walking around the aisles back and forth from the loading dock to the store on an as needs basis as part of her duties. This was because 15 pallets of goods were taken into the store for unloading onto the shelves each night.
Ms Wilson described the outside weather conditions as consisting of pouring rain for the 2 hours before she started her shift. She said that until about 6.30pm on the day in question, she had not been aware of any problems in the store.
At about 6.30pm on the day in question, which was at the end of her lunch break, another staff member had informed her that there was a hole in the roof near the perishables, with rain coming in. I took this to be a reference to a hole in the ceiling of the store. She described seeing the hole as being a ragged shaped hole in the gyprock of the ceiling, with parts of the gyprock hanging down, and with the floor being very wet in that vicinity. The Woolworths employee who told Ms Wilson that the ceiling had collapsed was Saba Yako. Neither party called evidence from that person.
By the time Ms Wilson arrived at the scene, the water on the floor was described as being noticeable, and the depth of it was up to the soles of her shoes. She said she saw the water was coming out of the ceiling at a "frequent rate". She said she then took steps to close and evacuate the store, in accordance with the defendant's standard procedure, which included announcements over the public address system. The store was then emptied of customers. By the time she arrived on the scene, the plaintiff was no longer there or at least no longer on the floor where she had fallen. In those events, Ms Wilson was not aware that there had been a fall involving the plaintiff in the store but she has since been informed that the plaintiff's accident had occurred in aisle 7 of the store.
Ms Wilson said that she had been unaware of any leaks from the ceiling on any occasion before the plaintiff's accident. The context of that evidence was that she had worked in the store since 2003. She described the leakage on the day of the subject accident as a one-off event.
Ms Wilson was asked about the asserted practice of the use of buckets in the store to catch ceiling leaks. She said she would have used signs to indicate the floor was wet and slippery in conjunction with buckets: T95.14. She said that she had never observed buckets or any similar receptacles being used on the premises to catch leaks. According to Ms Wilson, the use of such buckets was not part of the safety protocol. She was clear that to her knowledge there were no previous problems with the roof (ceiling) of the premises.
Ms Wilson described the collapse of part of the ceiling as having occurred at night time, which I took to mean darkness. A maintenance call was made to a repairer contractor after the damage became known, and the store was later re-opened about 2 hours later, at the decision of the store manager, Mr Hughes. The store had been re-opened after the wet floor had been cleaned and the water had been sucked up by a vacuum or suction cleaning machine. At the time of the re-opening of the store, signage had been placed in the store, along with the placement of store personnel, advising people to be careful whilst in the premises. By then, there was no further leakage of water onto the floor.
Ms Wilson was adamant that on the day in question, according to her knowledge, there had been no buckets placed on the floor for collecting drips of water from the ceiling of the store.
Counsel for the plaintiff attacked Ms Wilson in cross-examination and suggested to her that her evidence about not having been aware of the incident involving the plaintiff until being told about it 3 weeks before the trial, was untruthful: Day 3, T176.20. Counsel for the plaintiff also suggested to Ms Wilson that the Woolworths records conclusively prove that she had a lapse in her memory, and that she had given evidence that was wrong: Day 3, T176.25.
Ms Wilson responded to those attacks with dignified denials, and I accept her denials. The incident form by which counsel for the plaintiff sought to impugn her evidence was not her document, she had never adopted it, and it was open to her to disagree with aspects of its content. She explained that the incident report form had been completed by Woolworths personnel who had not been in the store at the time of the incident, and they had included her name and some details without knowledge of the relevant events: Day 3, T174.20. I consider Ms Wilson gave her evidence in a carefully considered and truthful manner, and I accept her evidence as to her observations on the day in question, and in relation to the compilation of the incident report form.
Counsel for the plaintiff was critical of the submitted failure of the defendant to call the repairers who fixed the damaged ceiling, arguing no reason had been shown for the collapse of the ceiling. In my view, that submission was misplaced, as it was the plaintiff who at all times carried the onus of proof, and the defendant was not obliged to call those witnesses. In the absence of admissions, any relevant issue of that nature could have been easily addressed through available interlocutory procedures, such as discovery and interrogatories.
Incident report
On 17 April 2009, 3 days after the incident, the plaintiff filled out the incident report in the presence of the store manager, whom she identified as Shane. She said that on this occasion she thought the manager had told her that on the day of the accident, there had been a build-up of ice in the ceiling from the air-conditioning. She had not herself noticed that this had been so at the time of the incident.
The documentary exhibits that touched upon the liability issues were the Woolworths OH & S investigation report which comprised a customer incident notification form and a repair invoice.
The customer incident notification form that was initially tendered by the plaintiff was an incomplete single page document in Exhibit "C". This appeared to be due to an error in photocopying documents produced on subpoena.
A further copy, comprising 3 pages, which was produced by the defendant, was later tendered by the plaintiff: Exhibit "H". The repair invoice from Programmed Facility Management Services for work involving repair of ceilings at the premises due to cave-in, dated 11 May 2009 in the amount of $4,188, was also tendered: Exhibit "2". The invoice referred to the problem as being:
"Ceilings have caved in and water all over the floor in meat, deli"
The incident report form located the incident as having occurred in the left hand side of aisle 7. The description of the incident was recorded in Exhibit "H" as follows:
"Slipped on floor in aisle 7 at the hair products section. Water from flooded roof and collapsed (sic) area on floor"
Exhibit "H" recorded the incident as having occurred at about 7.30pm on Tuesday 14 April 2009. It was noted that the plaintiff had slipped but had not hit any object during or after the fall. It was also noted that the plaintiff had been shopping alone at the time of the incident. The investigation section of the form, which was completed by the store trading manager, stated that:
"Back of shop leaked water from roof, video footage from aisle lost, due to water damage, shop evacuated."
Other parts of the form described the weather conditions as heavy rain and dark; the plaintiff had been assisted by a Woolworths employee, Daniella Temple; the lighting conditions were normal; after the incident the floor was seen to have been flooded with a lot of water from rain, and it stated that Kylie Bolton (now Ms Wilson) had inspected the floor before the incident, at 6.45, which from the context, I take to be a reference to 6.45pm.
The form was signed by, Wendy Brookes, the store's trading manager as well as Mr Cameron Hughes, the store manager.
Counsel for the plaintiff submitted that adverse inferences should be drawn from the defendant's failure to call evidence from Ms Temple, Ms Brookes, Mr Hughes, and the person named Shane: Day 2, T119.8. In my view that submission should be rejected as it fails to recognise that it is the plaintiff's side of the record that carries the onus of proof on the issue of the alleged negligence of the defendant. That issue is to be determined following an evaluation of the evidence as a whole, and a determination on whether that evidence was sufficient to discharge the onus of proof carried by the plaintiff in this case.
Factual conclusions concerning occurrence of the incident
It is clear that on the day in question, in the context of a period of heavy rain, the premises leased by Woolworths developed a ceiling leak due to rainwater penetration from outside the building. The evidence does not make it clear as to precisely when the water started to leak through the ceiling, into the store, and onto the floor.
It is plain that by the time the plaintiff approached the area where she was injured, water had started to flow from an overhead ceiling vent and onto the floor at a gushing or significant rate. It is also plain that the flow described by the plaintiff must have occurred just as she approached the scene, as she described the water spreading on the floor quickly, over an area of about 2 metres.
The plaintiff's next action was to turn to walk away from the water spreading on the floor, I accept her account in that regard.
I also accept the evidence of the plaintiff and Ms Wilson that there were no buckets located to catch water on the day of the subject accident. I consider that the evidence of the plaintiff's mother to the effect that someone had placed buckets to catch leaks on the day in question was due to confusion on her part as to what she had observed on the day in question. If I be wrong on that matter, I nevertheless consider that there is no evidence, or any reliable basis, upon which to find or infer who placed those buckets in the position Mrs Fox claimed she saw, or when this was done, or for how long those buckets were in situ before they were seen by Mrs Fox, as she stated in her evidence. The buckets could have been placed in those locations by an employee of the defendant, or equally, they could have been merchandise taken from a shelf by a customer, and placed under the leaks in question. The evidence does not permit a reasoned finding on those matters of speculation.
There is another possible explanation for the differing accounts between the plaintiff and her mother on whether there were buckets in situ in the aisle. The plaintiff's mother had walked ahead and this could be a possible explanation for the plaintiff not having seen buckets. That said, I discount that possibility on my acceptance of the evidence of Ms Wilson. I consider the plaintiff's mother to have been mistaken as to her claimed recollection of having seen a bucket or buckets in the area of the water leakage.
In reaching the above findings I considered Ms Wilson to have given truthful evidence concerning the presence of buckets.
Once the ceiling collapsed, Ms Wilson took prompt and appropriate action, and took steps to ensure the store was evacuated.
The questions that arise for determination are whether the incident involved the materialisation of an obvious risk, whether there was negligence on the part of the defendant, and contributory negligence on the part of the plaintiff in those events. Those issues are considered in the paragraphs that follow.
Issue 2 - Whether the circumstances involved obvious risk
The defendant relied upon the defence that the plaintiff's injury was as a result of the materialisation of an obvious risk, in this case, being the water flowing onto the floor of the premises.
Section 5F of the CL Act provides:
5F Meaning of "obvious risk"
(1) For the purposes of this Division, an "obvious risk" to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.
(2) Obvious risks include risks that are patent or a matter of common knowledge.
(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.
(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.
Section 5G of the CL Act provides:
5G Injured persons presumed to be aware of obvious risks
(1) In proceedings relating to liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk.
(2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk.
In my view, the defence of obvious risk has not been sustained in this case. This is because at the time the plaintiff was confronted with the realisation that the floor was wet and that the water was spreading onto a wider area of the floor, she had insufficient time to consider the nature of the risk and take steps to avoid it, and she had appropriately turned to walk away from the water. Accordingly, I find that the defendant has failed to establish the defence of obvious risk.
Issue 3 - Negligence
The plaintiff claimed that the defendant was negligent in the following respects:
(a) Failing to take reasonable steps to ensure that the premises were safe for use by customers;
(b) Failing to take reasonable steps to ensure that the roof of the premises was structurally sound so as to prevent rain water from entering the premises;
(c) Failing to supply non-slip matting and/or erect warning signs in the vicinity of the water in circumstances where the roof of the premises had been breached and the defendant knew, or ought to have known, that it had been raining heavily and that rain water was pooling on the floor of the premises;
(d) Failing to eradicate the water;
(e) Permitting customers, including the plaintiff, to continue shopping at the premises in circumstances where the defendant knew, or ought to have known, that the premises had become unsafe by reason of the breached roof and the ensuing entrance of rain water;
(f) Failing to effectively convey the occurrence of the breached roof, including the entrance of rain water, in circumstances where a loud speaker system was available and where its use imposed upon the defendant no difficulty, involved no disadvantage, and required no expense;
(g) Failing to routinely inspect the floor of the premises so as to identify foreseeable risks of injury to shoppers, including the plaintiff;
(h) Failing to implement, or properly execute, a competent system of cleaning capable of detecting and minimising foreseeable risks of injury to shoppers, including the plaintiff;
(i) Failing to take reasonable steps to barricade, or otherwise prevent the plaintiff from accessing, the part of the premises where the water had pooled on the floor;
(j) Failing to warn the plaintiff of the pooled water.
The defendant owed the plaintiff a duty to take reasonable care for her safety whilst the plaintiff, and for that matter, other customers, were lawfully in the premises. The question of whether the defendant was in breach of that duty of care and therefore negligent, must be considered in the light of the requirements of s 5B of the CL Act.
There is no doubt that as occupier of the premises the defendant owed the plaintiff a duty to take reasonable care for the safety of supermarket customers in respect of known and reasonably foreseeable sources of potential harm. The content or scope of that duty must clearly be taken to extend to harm of the kind that could ensue when customers walked on floor surfaces that had become wet, including as a result of leaking rainwater.
Similarly, there is no doubt that the injuries I have found to have been suffered by the plaintiff following the incident, were due to the occurrence of the incident. Whilst factual causation of those found injuries is established as being due to the fall in question, legal causation requires a consideration of whether or not there was a relevant breach of the duty of care owed, and negligence: s 5D of the CL Act; Strong v Woolworths [2012] HCA 5, (2012) 246 CLR 182, per the majority at [32].
The accumulation of water coming down from the ceiling vent was about 4 metres from where the plaintiff fell: Day 1, T41.34. The water came from the vent as if someone had turned on a tap and it was spreading fast: Day 1, T40.12 to T40.34. This indicates that the flow of water started rather suddenly. Within 10 - 20 - 30 seconds of this occurring, and after the plaintiff fell, a part of the ceiling collapsed: Day 1, T41.20. Again, this bespeaks a rapidly evolving scenario.
There was no evidence to suggest that on this occasion, the water penetration and the partial collapse of the ceiling, was due to poor maintenance or repair of the premises, or that the defendant had any reasonable basis upon which to anticipate that water was likely to penetrate the ceiling and spill onto the floor. I consider that the description of water dripping through the ceiling on an occasion earlier in the year, as described by the plaintiff and her mother, was remote in time to the subject accident: Day 1, T36.35 to T39.22. The events were not linked. There were no interrogatories or records tendered that suggested a possible connection between those described events.
No evidence, expert or otherwise, was tendered by the plaintiff to suggest that on the day of the subject accident, the water penetration, or the collapse of the ceiling, were as a result of poor maintenance, or were reasonably foreseeable events.
These circumstances have to be considered according to the assessment template provided by s 5B of the CL Act.
In the circumstances of this case, I do not consider that the risk of water pouring from the ceiling so as to present a fall hazard was one that the defendant ought to have reasonably foreseen: s 5B(1)(a) of the CL Act.
This was not an instance where, on the day in question, before the plaintiff's fall, it was necessary that specific precautions had to be taken: s 5B(1)(c) of the CL Act. Until the water started to pour onto the floor rapidly, there was no need to isolate the area, or to warn shoppers, or to close the store because, on a prospective analysis, the risk that later materialised was at the time, an insignificant one: s 5B(1)(b) of the CL Act.
I do not consider that prior to the event, a reasonable supermarket proprietor in the position of the defendant would have taken the precautions contended by the plaintiff. I consider this to be so because in the absence of notice of such an occurrence being likely, the probability of the risk materialising was very low: s 5B(2)(a) of the CL Act.
Social utility is not a relevant consideration in this case: s 5B(2)(d) of the CL Act. The burden of taking the contended precautions would have been negligible if the need for such precautions had been truly indicated: s 5B(2)(c) of the CL Act. However, it must be observed that even if there was a need for the contended precautions or inspections, the rapidity with which the events unfolded, namely, the gushing of water into the premises, indicates that a regime of inspection would have made no causative difference.
In this case, I am compelled to the view that what happened to the plaintiff when she fell in the defendant's supermarket was an unfortunate accident, for which there is no legal liability in the defendant.
In considering these matters I have concluded that the plaintiff has not established that the defendant was in breach of the owed duty of care, or that the defendant was negligent.
Issue 4 - Contributory negligence
The allegations of contributory negligence relied upon by the defendant were as follows:
(a) Failing to keep any or any proper lookout.
(b) Failing to take any or any adequate care and precautions for her own personal safety.
(c) Failing to act in a manner consistent with the reasonable pedestrian exercising care and prudence of similar age, knowledge and experience.
(d) Failing to take into account the characteristics of the area.
(e) Failing to perceive and avoid the obvious risk constituted by the physical characteristics of water on the floor (which is not admitted).
(f) Failing to keep a proper look out and watch where she was walking.
(g) Attempting to traverse the ground surface in circumstances where the plaintiff knew or ought to have known that it was unsafe to do so.
In essence, the above allegations of contributory negligence can be distilled in the proposition that the plaintiff failed to take sufficient care for her own safety by walking in the vicinity of the water once she had become aware of the presence of water on the floor, thereby exposing herself to the risk of slipping on the wet floor. In the paragraphs that follow, those allegations of contributory negligence are considered.
In my view, the defence of contributory negligence fails for the same reasons I have identified in connection with the rejection of the defence of obvious risk, at paragraph [120] above.
Issue 5 - Assessment of damages
At the commencement of the hearing, the plaintiff provided a damages schedule in the amount of $282,829: MFI "1". During final submissions, counsel for the plaintiff abandoned that schedule and superseded it with another damages schedule in the amount of $687,102: MFI "5". In my view, the figures submitted in the substituted schedule comprising MFI "5" represented an exaggerated view of the claim, and had little foundation in the evidence. In the paragraphs that follow, after identifying the plaintiff's probable statistical life span, and in accordance with convention, I set out my assessment of the plaintiff's entitlement to damages to allow for the possibility that in the event of an appeal, my liability findings may be found to involve error.
Life span
In assessing the plaintiff's entitlement to damages, there is nothing that reasonably arises from the evidence to suggest that the usual statistical median life span would not apply to the plaintiff's circumstances. At age 29 years, the plaintiff has a probable median statistical life span of 59 remaining years. Uninjured, the plaintiff would have had an otherwise normal working life span.
Non-economic loss
On behalf of the plaintiff it was initially submitted that the plaintiff's injury and sequelae called for an award of damages pursuant to s 16 of the CL Act, to the extent of 29 per cent of a most extreme case, which is the monetary equivalent of $96,500. In a revised submission on behalf of the plaintiff, that submission was revised to 33 per cent, or $171,500.
On behalf of the defendant, it was submitted that such submissions were grossly excessive and that no damages should be awarded to the plaintiff for non-economic loss as non-economic loss should be assessed at 15 per cent, or thereabouts, which would result in little or no monetary assessment because of the operation of the threshold under s 16 of the CL Act.
I consider the submission made on behalf of the plaintiff in respect of the claim for non-economic loss damages to be manifestly excessive for the evidence in this case.
Having regard to the findings on injury I have set out at paragraphs [25] - [30], including the finding that the plaintiff had not injured her left shoulder in the subject accident as claimed, and the findings on disability at paragraphs [67] to [70] of these reasons, as well as considering the contribution of the pre-existing condition of the plaintiff's left shoulder to her ongoing complaints in respect of that shoulder as this impacts on her loss of amenity of life, I consider that a much lesser award of s 16 damages is called for, but that award should nevertheless be in an amount higher than the threshold as was submitted on behalf of the defendant.
Having regard to those matters, I consider that the appropriate percentage for such matters should be assessed at 19 per cent of a most extreme case. If the plaintiff had been entitled to an award of damages for non-economic loss those damages would have been assessed in the amount of $16,000.
Economic loss
On behalf of the plaintiff, it was submitted that a cushion or buffer amount of $150,000 should be awarded on account of both past and future economic loss. On behalf of the defendant, it was submitted that no such damages should be awarded.
In this case, in approaching the issue of economic loss, I consider it appropriate to survey the medical evidence on that issue.
As far back as June 2005, before the subject accident, Dr Sun considered the plaintiff's lower back injury rendered her fit for only light duties with limitations on lifting over 10kg, with no forceful pushing or pulling, no sustained above shoulder level work, and no work involving repetitive bending or twisting. He suggested she should have work which allowed her to change her posture every 30mins, and his assessment was that the plaintiff was fit for suitable duties in the above categories for 30 - 40 hours per week. There is no evidence that the validity of this opinion ceased to remain operative.
In August 2005, again, before the subject accident, Dr Ellis was of the view that the plaintiff's injury at work in December 2003 disadvantaged her for work particularly involving prolonged sitting, which would aggravate her back pain and the referred pain in her right leg. He considered that she would be unlikely to be able to apply for physically demanding work requiring bending and lifting in the future, and she would be disadvantaged in office work, and receptionist work. He indicated that she would need to be able to change positions so as not to have to sustain prolonged sitting or repeated lifting and bending. There is no evidence that the validity of this opinion ceased to remain operative.
It is therefore apparent from these reports, which were not challenged by the plaintiff, that the plaintiff had significant limitations on her earning capacity that pre-dated the injuries she sustained in the subject accident. In my view, it is no answer to the opinions cited above, that the plaintiff claims to have recovered from her earlier injuries. The plaintiff's own assessment on those matters is not a medical commentary on those identified underlying vulnerabilities, and her evidence on those matters must carry limited weight. The plaintiff's purported answers do not derogate from those medical opinions as to the prognostic forecasts that remain as a legacy of those earlier injuries, notwithstanding that the acute effects of those injuries may have receded before the subject accident. In the light of those opinions, I have not accepted that from a medical perspective, the plaintiff had entirely recovered from the effects of her earlier injuries. If there was evidence to that effect from Dr Sun and Dr Ellis, a different conclusion may have been reached. This is an issue on which the plaintiff carried the burden of proof. The evidence does not support the plaintiff's contention.
In respect of the work disabilities that flow from the subject accident, there is a range of disparate opinions. In his report dated 16 August 2012, Dr Maxwell stated that there was no evidence that the plaintiff had been incapacitated for work as a result of the subject accident. That view was based on the view expressed earlier in his report to the effect that there was no evidence that the plaintiff had injured her left shoulder in the subject accident.
In contrast to Dr Maxwell's opinion, in his report dated 31 May 2011, Dr Wallace noted a temporary aggravation of a pre-existing instability of the left shoulder, he noted that a proportion of the plaintiff's left shoulder disability was due to her earlier and unrelated fall in 2005, and expressed the opinion the plaintiff was only fit for part-time work of up to 20 hours per week, with significant restrictions suggested for activities requiring repetitive bending or twisting movements of the neck, or left shoulder movements, or overhead use of the left arm, and repeated lifting of over 5kg.
Dr Wallace re-examined the plaintiff on 2 April 2012, and he essentially reiterated his earlier opinions on the plaintiff's work fitness, noting that she had surgical treatment to her left shoulder in the interim.
There was no report from Dr Nouh, the treating surgeon as to his views on the plaintiff's future work restrictions, if any, and as to the cause of any such restrictions.
Dr Maxwell and Dr Wallace commented on each other's reports and each re-iterated their earlier opinions. On the one hand, a reconciliation of such disparate opinions should not involve speculation. On the other hand, neither of these doctors was called to clarify or further explain the basis for their views. Without the assistance of explanatory oral evidence from these experts, I must attempt, as best I can, permitted by the state of the evidence, to unravel the disputed opinions in order to reach a concluded view on the economic loss issue.
In undertaking that exercise, based upon the evidence of Dr Sun and Dr Ellis, which I accept, I consider that there were significant underlying restrictions on the plaintiff's earning capacity before the subject accident, and these restrictions continued to have effect on the plaintiff at the time of the subject accident.
In comparing and weighing the respective views of Dr Maxwell and Dr Wallace, I have concluded that I should in this case prefer and accept the views of Dr Maxwell because, as is apparent from the hospital notes, the plaintiff is reported as showing no sign or indication of an injury to her left shoulder immediately after the accident and therefore, as Dr Maxwell has indicated, the plaintiff's left shoulder problems should be seen as being related to the pre-existing condition of that shoulder. On that view, the differences in the views of Dr Maxwell and Dr Wallace recede significantly.
I now turn to my assessment of economic loss damages.
Dealing first with past economic loss, I am not satisfied that the plaintiff should be awarded any damages on that account. This is because the plaintiff was not working at the time of her accident, and because of her onerous and intensive childcare responsibilities, including the special intensive needs of her young son. Notwithstanding the plaintiff's stated intentions to seek part-time employment by 2011, and full-time work by 2015, I consider that the plaintiff's childcare responsibilities would have made the prospect of the plaintiff securing and maintaining such employment unrealistic and improbable. In those circumstances, although a degree of impairment in her earning capacity has been shown on the evidence, in the period covered by the past, in my view, this has not resulted in the plaintiff suffering a financial loss: Graham v Baker [1961] HCA 48; (1961) 106 CLR 340.
With respect to the plaintiff's claim for future loss of earning capacity, given that there is an unexplained degree of contribution between both the pre-accident and post-accident circumstances of the plaintiff's left shoulder, and given the restrictions described by Dr Sun and Dr Ellis that have an impact on the plaintiff's impairment of her earning capacity, and also given that the state of the medical evidence does not greatly assist with teasing out the practical consequences of those respective effects, I do not consider this to be an appropriate case for the projection of an identified weekly loss. Instead I accept that a buffer is called for, but for a much lesser amount than that which was submitted on behalf of the plaintiff.
I accept that the plaintiff's accident related disabilities, which consist of neck related pains and restrictions, may, for a time, have some impact on the plaintiff's future capacity to earn income. However, this component of the plaintiff's claim has to be assessed in light of a number of discounting factors, particularly the ongoing effects and vulnerabilities resulting from her earlier injuries, her significant and unrelated left shoulder problems, and a number of her other unrelated illnesses and conditions of health that are described in the evidence.
In those circumstances, if the plaintiff was entitled to an award of damages for future loss of earning capacity, I would have assessed such damages in the buffer sum of $50,000.
Superannuation
Consistent with the award of a buffer of $50,000, applying a rounded actuarially revised conventional calculation of about 14 per cent to that sum to calculate the estimated loss, this reveals an assessment of past loss of superannuation in the amount of $7000.
Past domestic assistance
On behalf of the plaintiff, it was initially submitted that damages for past domestic assistance should be assessed in the sum of $8857, which was based on a calculation of the value of 6 hours per week of such assistance at $26.36 per hour over a period of 18 months to the time of the hearing. In contrast, on behalf of the defendant it was submitted that no such damages should be awarded.
The plaintiff later relied upon a revised past domestic assistance submission totalling $69,656.30, comprising two components, the first being $48,990.05 for 177 weeks for 10.5 hours per week at $26.36 per hour (excluding the period of post-surgical recovery), and the second being in the amount of $20,665.25 comprising 28 hours per week at $26.36 for 7 months during the period of post-operative convalescence.
The defendant's submission on this issue was that no such damages should be awarded.
Those submissions require evaluation against the medical and the lay evidence. A survey of the medical evidence on the issue provides a useful background guide to the assessment of this aspect of the claim.
There is no evidence from within the pre-accident reports of Dr Sun and Dr Ellis that suggests the plaintiff needed domestic assistance before the subject accident. However, there is evidence that she was and would be subject to the identified restrictions with regard to her physical activities with regard to physically demanding work, including forceful pulling, pushing, sustained above shoulder work, repeated bending or twisting movements. Those matters would obviously have some bearing on determining whether or not the plaintiff would have been able to carry out a full range of domestic duties before her accident, although the evidence did not refer to specific tasks.
Then there is the matter of the plaintiff's unrelated pre-accident shoulder problems, and the fact that those problems still have some material contribution to her ongoing complaints. Dr Maxwell was of the view that the plaintiff did not require domestic assistance. Curiously, Dr Maxwell was provided with a report from a Natasha Langford, which appears from the context of his comments on this topic, to have made some recommendations or observations on the plaintiff's need for domestic assistance.
In any event, Dr Maxwell expressed his complete disagreement with Ms Langford's recommendations, and neither party tendered her report in evidence in these proceedings. Dr Maxwell considered that far from providing the plaintiff with domestic assistance, she should be encouraged to carry out such physical activities for the greater benefit of her general health, and to avoid complications from what he referred to as her morbid obesity.
In contrast, the opinions of Dr Wallace included a recommendation that the plaintiff be provided with domestic assistance of four hours per week due to her ongoing cervical spinal and left shoulder disabilities sustained as a result of the fall.
That opinion from Dr Wallace, which is not necessarily prescriptive, has to be weighed against the plaintiff's own evidence as to her abilities and inabilities to carry out her pre-injury domestic tasks insofar as her evidence provides a basis for the identification of an injury-based need for such assistance, which has arisen solely as a result of the injury which is the subject of this claim, and would not have been needed but for the subject injury: s 15(2)(b) and (c) of the CL Act. Any such claim must also satisfy the threshold of 6 months and 6 hours per week as required by s 15(3) of the CL Act.
In her evidence in chief, the plaintiff stated that since she "hurt herself" she had difficulty with normal housework, and nominated the tasks of vacuuming, sweeping, mopping, washing and hanging out clothes on the line. The question did not make it entirely clear from her answer as to which of the plaintiff's injuries was under discussion: Day 1, T32.23. From the broad context I will proceed upon the basis that the answer related to the subject accident.
The plaintiff later went on to explain that before the subject accident, she was the person in the household who was responsible for the household chores for herself and her two children. In that regard, she did the cooking, vacuuming, sweeping, mopping, "and that sort of thing". She also described how, after she had her shoulder surgery, her estranged husband had to move back into the house "to become basically the primary care giver for the children": Day 1, T33.31. He has remained in the house since that time, and from the evidence cited, I infer that his presence was for the stated purpose of helping the plaintiff with domestic tasks.
In her evidence in chief, the plaintiff described how since the subject accident, she has done very little cooking, including the complicated meals that are part of her Greek cultural background. Instead, her mother cooks those meals: Day 1, T34.12. The plaintiff also explained that she does very little in the way of vacuuming, sweeping, mopping and the like because her shoulder starts to hurt, as does her neck: Day 1, T34.25. She also stated that she cannot hang heavy items on the clothesline and she cannot change bed linen on her own, and she needs the assistance of either her mother or her estranged husband for those tasks: Day 1, T34.48. She also explained that she cannot manage "a big shopping expedition" on her own and she requires help with this from either her mother or her estranged husband: Day 1, T35.13 to T35.18.
Significantly, in her evidence in chief, the plaintiff was not asked any questions that were aimed at eliciting the amount of time involved in the particular tasks described above, and therefore, her evidence in chief provided no guidance as to whether the mandatory requirements of s 15(3) of the CL Act had been met as a pre-requisite for an award of damages of this kind.
In answer to questions put in cross-examination to the plaintiff on the subject of domestic assistance, the plaintiff acknowledged that she cooked wholesome and nutritious meals each day: Day 2, T24.43; she acknowledged she could cook spaghetti bolognese, souvlaki and other simple meals: Day 2, T26.5.
The plaintiff stated that before the subject accident, when she had health problems or other difficulties, her mother would help her with domestic duties. The pre-accident pattern or extent of such assistance was not elaborated upon: Day 2, T26.46.
The plaintiff confirmed that since the accident, she was able to vacuum, but not with two hands, and said that one-handed vacuuming was not effective: Day 2, T27.25. When she does vacuum, she does so one room at a time, and said it can take twice as long to complete, and whether or not she vacuums depends on whether or not she is in pain: Day 2, T28.47.
The plaintiff stated that when she is in pain she has difficulty cooking because she cannot move: Day 2, T29.10. She didn't actually say she could not clean the bath: Day 2, T29.23. She said she can wash a few dishes, being normal plates and cutlery, "but not a whole heap with massive pots and pans": Day 2, T29.34. the plaintiff still goes shopping, and she drives her car to the local shops: Day 2, T31.34. She said she has difficulty pushing a fully laden shopping trolley, but if she has no choice, she does so: Day 2, T32.18.
By leave, following cross-examination, the plaintiff was asked to estimate the additional hours per day of domestic tasks that have been taken over by her mother and her estranged husband. She estimated this as being an hour and-a-half per day, or 10.5 hours per week: Day 2, T36.40.
That evidence was then explored through further cross-examination of the plaintiff: Day 2, T36.45 to T40.
In that further evidence the plaintiff acknowledged that those hours of assistance would vary insofar as the washing was concerned. The changing of the bed linen and related tasks was estimated at about 70 minutes per week or 10 minutes per day. She said she did some light tidying up, but did not move heavy furniture for vacuuming. She estimated about 40 minutes per day for up to 4 days per week was required for vacuuming: Day 2, T39.48. When her evidence on the estimate of 1.5 hours per day of assistance was challenged, she indicated that these tasks varied as different people carried out these tasks at different speeds.
My impression of the evidence of the plaintiff on those matters was that the times that were stated to have been taken for the described tasks were based on inaccurate estimates, and were significantly overstated as to the actual times taken for such assistance. On the plaintiff's evidence alone, I am not satisfied that the threshold of 6 hours per week had been met as required by s 15(2)(a) of the CL Act.
Furthermore, when consideration is given to the plaintiff's evidence in chief at Day 1, T33.34, where she said her estranged husband returned back into the household to become the primary care giver to the children, and given that evidence was not further clarified, on the plaintiff's own evidence, I am left unpersuaded that the assistance provided related solely to the effects of the accident, as is required by s 15(2)(b) of the CL Act. Claims for hours taken up with childcare are not within the ambit of this claim: s 15B of the CL Act.
Having regard to the preceding assessment difficulties that I have identified, I now turn to the evidence of Mrs Fox and Mr Andreou to ascertain whether any greater clarity on the issue comes from the evidence they gave.
Mrs Fox described the pre-accident domestic arrangements to be that the plaintiff and her husband would do "everything around the house" because she worked: Day 2, T46.42. She described the situation post-accident as being one where Mr Andreou helps with the vacuuming, with the beds and hanging out the clothes: Day 2, T48. She does the cleaning, the washing and the larger shopping expeditions. She estimated her time taken up in such chores involved "at least one and-a-half to two hours a day": Day 2, T49.7.
In cross-examination, Mrs Fox clarified her evidence to state that the plaintiff cooked simple meals for all members of the household, the plaintiff does the light housework, and she and Mr Andreou "pitch in and do things": Day 2, T65.16.
The evidence of Mr Andreou was to the effect that notwithstanding the marital separation shortly before the birth of the second child, he had moved back into the house because he was needed to assist with the children in the events leading up to and following the plaintiff's operation: Day 2, T70.1; T70.30; T71.1; T71.40; T72.11. He estimated that in the period following his return to the house (he was unable to say precisely when that was) and before the plaintiff's surgery, he was doing what needed to be done for about an hour or an hour and-a-half per day, and this increased to about 4 to 6 hours per day after the surgery, depending upon what needed to be done: Day 2, T72.33 to T72.44. After about 6 months, following the surgery, he said that the amount of time he spent in carrying out chores had dropped to about roughly an hour and-a-half to maybe 2 hours per day: Day 2, T72.49.
The chores referred to by Mr Andreou and that occupied the one and-a-half hours per day, involved taking the eldest child to school, washing, hanging the washing, sweeping, vacuuming, and general day to day things around the house, including shopping, tidying up and bed making. During the time the plaintiff was recuperating from surgery, his provision of domestic assistance was more wide ranging.
As stated in my earlier findings on injury and disability, I am not satisfied that the plaintiff's claim for domestic assistance has been made out because it seems to me that the vast majority of the tasks for which such assistance is claimed, relates to the left shoulder. I find that problem to be unrelated to the subject accident, and therefore not solely due the effects of the injuries sustained in the accident.
On the above analysis, I am not satisfied that if I had been required to assess the plaintiff's damages for past domestic assistance, any such damages could have been assessed and awarded.
Future domestic assistance
On behalf of the plaintiff, at the commencement of the trial, a claim was made for future domestic assistance for 3 hours per week at $40 per hour for 3 years projected at 5 per cent (x 145.6) to yield $17,472.
In final submissions made on behalf of the plaintiff, a claim was made for future domestic assistance according to two alternative scenarios. The first comprised an amount of $423,906 representing a claim for 10.5 hours per week of paid care at $40 per hour projected over the plaintiff's median life expectancy (x 1009.3). The second alternative comprised a claim for 10.5 hours per week at the rate of $26.36 per hour, projected over the plaintiff's median life expectancy to yield $279,354.
In contrast, on behalf of the defendant, it was submitted that no such allowance should be awarded for this head of damage.
In my view the claims made on behalf of the plaintiff for future domestic assistance have been exaggerated, and are not justified according to a demonstrated injury caused need. In that regard, I accept Dr Maxwell's evidence that there is no ongoing need for such assistance, and that the plaintiff should be encouraged to become active and to undertake the household activities herself.
In any event, consistent with my findings to the effect that the plaintiff's left shoulder problems are unrelated to the subject accident, I consider that the plaintiff is not entitled to any damages for future domestic assistance. I therefore make no award for damages for future domestic assistance.
Future treatment
On behalf of the plaintiff, a claim was made for a buffer of $10,000 on account of the plaintiff's needs for future treatment expenses. On behalf of the defendant, it was submitted that no allowance should be made for this head of damage.
A summary of the medical evidence reveals that no specific medical recommendations have been made in support of a claim for future treatment, other than Dr Wallace noting, in April 2013, that the plaintiff continues to take analgesic medication. In light of the state of the medical evidence, I see no justification in the evidence for the claim for a buffer of $10,000, and I consider that claim made on behalf of the plaintiff to have been unreasonably inflated.
Given my earlier stated finding that the left shoulder injury is unrelated to the subject accident, I consider that a modest buffer amount of the order of $500 would be an appropriate amount to award the plaintiff if she had been entitled to a verdict in her favour. This would seem to be sufficient for occasional medical or allied consultations, and painkilling medications.
Had I been required to award the plaintiff damages for future treatment expenses I would have awarded such damages in the amount of $500.
Past out-of-pocket expenses
On behalf of the plaintiff, a claim was made for past out-of-pocket expenses in the amount of $6592.61. The defendant initially conceded the amount of $1500, but later it was agreed that the plaintiff had incurred the amount that had been claimed for treatment, but it was agreed that half of that amount was related to the effects of the accident, and half was attributed to the left shoulder injury. Accordingly, had I been required to award the plaintiff damages for future past-out-pocket expenses for the plaintiff I would have awarded such damages in the amount of $3296.30
Summary of damages assessment
My assessment of the Plaintiff's damages is summarised as follows:
(a) Non economic loss
$16,000
(b) Economic loss
$50,000
(c) Superannuation
$7,000
(d) Past domestic assistance
$Nil
(e) Future domestic assistance
$Nil
(f) Future treatment
$500
(g) Past out-of-pocket expenses
$3,296.30
Total
$76,796.30
Disposition
As the plaintiff has failed to make out her case, the defendant should have a verdict entered in its favour.
Costs
Since the plaintiff has been unsuccessful in the proceedings, it follows that she must pay the defendant's costs of the proceedings on the ordinary basis, unless otherwise ordered.
Orders
I make the following orders:
(1) Verdict and judgment for the defendant;
(2) The plaintiff is to pay the defendant's costs on the ordinary basis unless otherwise ordered;
(3) The exhibits may be returned;
(4) Liberty to apply on 7 days notice if further orders are required.
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Decision last updated: 07 June 2013
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