Bond v Capital Meat Exporters Pty Ltd - [2014] WADC 82

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: BOND -v- CAPITAL MEAT EXPORTERS PTY LTD [2014] WADC 82

CORAM: WISBEY AUDCJ

HEARD: 22 MAY 2014

DELIVERED : 11 JUNE 2014

FILE NO/S: CIV 757 of 2013

BETWEEN: RUSSELL WILLIAM BOND
Plaintiff
AND
CAPITAL MEAT EXPORTERS PTY LTD
Defendant

Catchwords:

Torts - Negligence - Occupiers liability - Plaintiff allegedly struck by falling boxes in store - Turns on own facts

Legislation:

Nil

Result:

Claim dismissed

Representation:

Counsel:

Plaintiff: Mr K S Pratt
Defendant: Mr A P Hershowitz

Solicitors:

Plaintiff: Separovic Injury Lawyers
Defendant: SRB Legal

Case(s) referred to in judgment(s):

Nil

WISBEY AUDCJ: The plaintiff born on 28 September 1970 alleges in the statement of claim that on 11 December 2011 whilst walking down an aisle in the Mirrabooka Village Super IGA store four heavy boxes filled with bags of potato chips fell from a top shelf onto him causing injury. He asserts that the injury was caused by the negligence and/or breach of statutory duty on the part of the defendant.
The defendant denies that the plaintiff was struck whilst in its premises as alleged or at all.
The matter comes before the court for determination of liability. The central issue is whether the plaintiff was in fact struck by falling boxes because if he was the defendant would clearly be negligent.
Although it is alleged in the statement of claim that the incident occurred on 11 December 2011, the evidence discloses that if there was such an incident it occurred on Saturday 10 December 2011.
The plaintiff gave evidence that at the material time he was at the IGA store shopping with his friend Trevor Craig. Each was carrying a shopping basket. The plaintiff stated that he had selected 'some rolls or something' from the first aisle and then entered the next aisle, 'the chip and lolly aisle', and noticed a male person standing on a ladder. When he entered the aisle Mr Craig was 'probably a metre 2 metres I'm not sure' behind him. The ladder was on the right hand side of the aisle in the direction the plaintiff was walking, and about 2 m in from where he entered the aisle. The male on the ladder was positioned such that his waist was approximately level with the plaintiff's head. As the plaintiff was passing the ladder he heard a cry 'look out', turned his head to the right, and observed the falling boxes. As he had the shopping basket in his right hand he reached across his body with his left hand to a position just above his right shoulder to push the boxes away. They came down around him. Notwithstanding, a box made contact with the right side of his head and right shoulder. He felt that there may have been three boxes, but was definite that there were two. The plaintiff turned to Mr Craig and said words to the effect of 'what's going on there? Can you believe that just happened'. He continued walking but by the time he reached the top of the aisle began to feel pain in his left shoulder shooting down the left arm. The arm had been subject to previous injury, but whereas before the incident the level of pain was 3 on a scale of 10, by the time he got home after the incident it had increased to 10 out of 10. Pain was experienced in the neck and left shoulder. When the plaintiff reached the top of the aisle he told Mr Craig that he was going to go back and ask the male positioned on the ladder where he could locate the store manager. In the result he was directed to the manager.
The plaintiff stated that he did not have any discussion with the male on the ladder but spoke to an assistant who directed him to the manager. When he made contact with the manager the plaintiff told him 'one of your workers has just dropped some boxes on me' which is slightly different than the pleaded incident. The manager asked him where it had happened and the plaintiff directed him to the male on the ladder. When the manager returned he told the plaintiff that he would go and check the CCTV footage, and having done so returned and expressed the view that the footage was not clear. The manager then requested the plaintiff leave the shop advising him that if he wished to pursue the matter further he should see the defendant's insurer.
In cross-examination the plaintiff conceded that prior to the alleged incident he had a long history of problems with his left arm and left‑hand. He was carrying the shopping basket in his right hand because of weakness in the left hand. He was unable to indicate how the ladder was positioned at the time of the incident save to observe that it was up against the right hand side of the aisle and that it had been necessary for him to move to the left to pass it. He was adamant that the male on the ladder was not passing boxes down from the shelf to another male standing on the floor.
Notwithstanding the pleaded case, the plaintiff stated that he did not know whether the boxes had fallen from a shelf, or from the hands of the male on the ladder. Although at that time he claimed to be alongside the ladder, he was unable to indicate whether it was the male on the ladder or Mr Craig who called 'look out'. The plaintiff stated that the boxes bumped him on his head and down his back and shoulder. When shown a carton of potato chips weighing 1.2 kg (exhibit 1) the plaintiff stated that the falling boxes were larger. The plaintiff stated that the boxes were dropped on him by an approximately 19 years old dark haired male, and was emphatic that there was no other person present.
The plaintiff recalled in cross-examination that he remarked to the person on the ladder 'what do you think you are doing' although he was unable to recall exactly what he said. He denied having said 'that could have hit me'. He denied having taken a packet of chips from the shelf. He stated that he told the manager that an employee had dropped boxes on him, and denied that the manager invited him to look at CCTV footage, or that he in fact went to look at CCTV footage. Having left the store he did not return until the following Monday or Tuesday.
The plaintiff agreed that when he saw Professor Mastaglia sometime after the incident he told him that he was struck on the head and shoulders by several cardboard boxes of potato chips each around 1.05 m in size, which were accidentally dropped by one of the store attendants who was standing on a ladder and stacking the boxes on a high shelf. Also that it was his mate who called 'look out'. He agreed that he told his general practitioner Dr Cluett that he had been struck by a falling box of chips estimated to weigh 15 kg.
In re‑examination the plaintiff stated that the boxes that struck him were about 1 m by 0.5 m in size.

Trevor Craig

Mr Craig has known the plaintiff for almost 40 years. He recalled taking the plaintiff shopping on a Saturday morning at the IGA store. Before they entered the 'potato crisp aisle' they were in the meat section. When they entered the 'potato chip aisle' the plaintiff was approximately 1/2 m to 1 m in front of him, and there was a ladder to their right with a young man handling boxes, some of which were on the floor. He heard that person call out 'look out' or 'watch out' whereupon the plaintiff leaned forwards and he leaned backwards and boxes came down between them. He observed the plaintiff put his left arm above his head and get hit by one or two boxes on the back of his head and both shoulders, more to the left. The only persons present at the time were the plaintiff, himself and the male on the ladder, the latter standing on the very top rung of the ladder such that his knees were at about Mr Craig's head height. As they were walking past the ladder he observed that the male on the ladder had boxes in his hands.
After the plaintiff was struck Mr Craig asked if he was alright but the plaintiff did not respond. They walked on and by the time they got to the front of the aisle the plaintiff appeared as if he might faint. The plaintiff told a man standing at the top of the aisle that someone had just dropped boxes on him, whereupon the manager came across and spoke to them for a couple of seconds before walking up to where the ladder was positioned. The manager subsequently walked to his office and came out saying that he had not seen anything of any value on the CCTV footage.
In cross‑examination Mr Craig insisted that the plaintiff was carrying a basket. When asked what the plaintiff was doing whilst Mr Craig was looking in the meat cabinet he responded 'probably getting the potato crisps or something, I don't know … weren't walking holding hands'.
Mr Craig agreed that he was not with the plaintiff when the plaintiff selected some bread rolls. He was adamant that the ladder was only about 2 m in from the back or rear of the aisle. As he was walking behind the plaintiff he heard the male on the ladder call out 'look out' or 'watch out'. He was alongside the ladder when that was said, and the plaintiff was 1/2 m in front of him. He stated that the boxes fell from the arms of the male on the ladder as that person turned to his right away from the shelves.
It emerged from Mr Craig's evidence that he thought the ladder was alongside the shelves facing the back of the aisle. The male was positioned on the ladder facing in that direction. The impression Mr Craig gave was that the falling boxes struck the plaintiff on the back of his head and his back and shoulders, but more to the left side. He denied that that there was another person in close proximity to the ladder assisting the male on the ladder.
He confirmed his earlier evidence that the plaintiff did not say anything after being struck. He denied that the manager invited them to go and look at the CCTV footage, claiming that he merely came back and said 'I can't see anything on there, it doesn't show a good picture'.
Mr Craig was unable to indicate when and how he got the chips that were in fact purchased.
In re‑examination Mr Craig referred to the boxes of chips that had fallen as being the same width as but double the height of exhibit 1.
Graham Lesley Raymond Butler is a floor manager at the IGA store having been employed by the defendant for approximately 8/9 years. He has been floor manager for 5 years. His job involves (inter alia) ensuring that the store is safe for customers and seeing to the filling of shelves and capping. The latter involves taking leftover stock stored on the top of the shelving and using it to replace merchandise removed from the shelves by customers – basically topping up the shelves. It was one of Mr Butler's daily functions to attend to capping, a task he carried out with the assistance of a floor‑boy. It was a procedure that he insisted was always done by two people for safety reasons. Generally Mr Butler would ascend the ladder and hand down the required stock to the floor‑boy. In the case of potato chips the procedure implemented by Mr Butler was that they would be stacked no more than four cartons high on the capping. Perspex sheeting inserted as a shelving divider prevented boxes placed on the capping in one aisle from being dislodged by force from the other side of the aisle. The standard procedure when carrying out capping was for the ladder to be positioned parallel with the shelving so that it would not impede customers, but if the merchandise required to be removed was particularly heavy the ladder would be placed facing the shelves.
Mr Butler pointed out that the relevant confectionary aisle (aisle 3) ran between the meat cabinet at the back and the checkout at the front.
Mr Butler recalled the alleged incident and stated that at the material time he was capping the chips in aisle 3 with the assistance of a floor‑boy. The floor‑boy was on the ladder passing boxes of chips down to Mr Butler who was standing in front of the ladder and receiving them at about head height. Having received a box he would turn and drop it onto the ground basically from shoulder height. He stated that the ladder was positioned near the pole shown in exhibit 3 and facing away from the meat cabinet (i.e. towards the top or front of the aisle). Mr Butler recalled that as he dropped a box of chips onto the ground the plaintiff, who was obviously near him, commented 'oh that could have hit me' to which he responded that 'it didn't'. The plaintiff became agitated and Mr Butler directed him to go and see the manager. He could not recall the manager, Mr Hall, coming to speak with him, and was unable to recall whether the boxes being handled were similar to exhibit 1 or whether they were about 10 cm higher and longer. Exhibit 1 weighed 1.21 kg and the larger boxes approximately 2 kg to 2.2 kg.
In cross‑examination Mr Butler stated that when he directed the plaintiff to see 'Calvin' (Mr Hall) the manager was in view standing at the front of the store. Mr Butler indicated that he was not asked to recall the matter until about 12 months ago when interviewed by an assessor. He recalled the plaintiff coming into the store several weeks prior to the hearing and saying to him 'you should really be careful with chips and don't stack them that high'. He was adamant that he did not depart the capping area leaving it to the floor‑boy to complete the task. Also that capping was only carried out when two employees were present.
Mr Butler could not recall having any discussion with Mr Hall following the incident.
Calvin Anthony Thomas Hall is the general manager of the IGA store and has been in that position since 2002. His dealings with the plaintiff were restricted to the day of the incident. He stated that he generally performed his functions from the front of the shop so that he would have good visibility down the aisles. He worked from the floor rather than an office. He recalled the plaintiff and Mr Craig arriving in late morning because they were not regular customers and he thought looked suspicious. Only Mr Craig was carrying a basket. Mr Hall stated that he was standing at the top of the confectionary aisle and observed the plaintiff and Mr Craig go down the main aisle or thoroughfare. Confectionary aisles and health and beauty aisles are in the supermarket industry the areas where the greatest amount of pilferage occurs, and consequently he was always watchful of those aisles. The plaintiff and Mr Craig walked down aisle 1 and having reached the back of the aisle turned right and began to come up the confectionary aisle. Mr Hall observed Mr Butler and a casual floor‑boy in that aisle using a ladder and filling the chips. He was able to observe the floor‑boy passing chips down to Mr Butler. There was nobody else in the aisle.
The plaintiff and Mr Craig were just standing in the aisle and then moved forward to take a packet of chips. Mr Hall was unable to say whether it was the plaintiff or Mr Craig who took the chips, but chips having been selected and placed in a basket they went back in the direction of the meat cabinet and turned right towards aisle 4. He then observed them coming around the side of the store walking towards him from between the freezer and milk section. Mr Hall stated that Mr Craig approached him and said that some chips had fallen on his friend. As a result Mr Hall invited them to view the CCTV footage. He opened the door into the office to replay the footage. The plaintiff and Mr Craig stood outside. Having played the relevant footage Mr Hall said to the plaintiff 'nothing hit you' indicating that the footage was clear, although Mr Craig thought otherwise. They then left the shop. The plaintiff returned after about an hour, approached Mr Hall, and produced a doctor's certificate stating that he had injured his arm. The plaintiff asked for an incident report form and when Mr Hall declined to give one to him said he would take it up with his lawyer. Mr Hall denied ever saying to the plaintiff that he should take it up with the insurer, and did not take the medical certificate from the plaintiff.
In cross‑examination Mr Hall stated that he did not retain the relevant CCTV footage because he was satisfied that there had not been an incident and the plaintiff did not appear interested in the footage. The CCTV is a constant recording and is obliterated after three days. Mr Hall was emphatic that only Mr Craig had a shopping basket. When pressed as to what the CCTV depicted, Mr Hall stated that it clearly showed the plaintiff lean forward to take a packet of chips and put it into the basket, although earlier in his evidence he stated that he was not sure who selected the chips. When pressed he indicated that he would probably say it was the plaintiff who selected the chips, although agreeing he could be mistaken.
The plaintiff was unconvincing in his cause. His descriptions of the alleged incident during the trial differ from the pleaded case in respect of the number of boxes that fell, and the position from which they fell. Although he said initially that 'I've seen something falling out of the corner of my eye' (which could be consistent with them falling from the capping) he informed the manager that 'one of your workers has just dropped some boxes on me'. In cross‑examination he could not say whether the boxes fell from the capping or were dropped by the male on the ladder. He was not too sure if there were three but was confident there were two boxes. When it was put to him that there were two people working at the ladder he responded 'the guy who dropped boxes on me is around 19 years of age and a young bloke and he had black hair'. He claimed to have said to that person 'what do you think you're doing?'
The plaintiff did not suggest that either Mr Craig or himself had selected a packet of potato chips. Clearly at least one of them did. Mr Craig's evidence would suggest that they both did because he stated 'I'd paid for my little basket of chips' and when asked where the plaintiff was when he was at the meat‑counter he answered 'probably getting the potato crisps or something, I don't know'.
The plaintiff could not identify who called 'look out' and having regard to the position where he claimed to be when that remark was made one would expect him to be able to identify the person making the remark. Mr Craig claimed that it was the male on the ladder. For his part Mr Craig claimed that the boxes fell from the arms of the male on the ladder.
Both the plaintiff and Mr Craig deny that Mr Butler was assisting at the ladder, but for the reasons which follow I have no hesitation in accepting that he was present.
I do not accept that Mr Craig was always close to the plaintiff, and generally consider his evidence and the manner in which he gave it unreliable.
Mr Hall gave the appearance of a very dogmatic individual who I felt would be dismissive of any situation that he did not accept, and because of that I have reservations about the accuracy of certain aspects of his evidence. I accept that he observed Mr Butler and a floor‑boy carrying out capping in the confectionary aisle. Also that he observed the plaintiff and Mr Craig standing in the aisle and one of them moving forward to select a packet of chips. Also that Mr Craig approached him and said that some chips had fallen on his friend. I also accept his evidence that the plaintiff returned to the store within an hour of leaving it and produced a doctor's certificate stating that he had injured his arm. Consistent with his nature Mr Hall was dismissive of the plaintiff's approach.
I accept the evidence of Mr Butler. It was given spontaneously and consistently. He was clearly dedicated to and took pride in his work and I accept that he had established procedures from which he would be unlikely to deviate. It was not suggested that he was at fault, and there does not appear to be any motivation for him to misrepresent what occurred. I accept that when he dropped a box of chips onto the ground the plaintiff commented that he could have been hit and was informed that he had not been.

The plaintiff carries the burden of establishing on the balance of probabilities that he was struck by a falling box or boxes of chips. Not only did he fail to so satisfy me, the acceptance of Mr Butler's evidence establishes affirmatively that it did not occur.
The plaintiff's claim is dismissed.