Buljat v Coles Supermarkets Australia Pty Ltd
[2022] ACTCA 71
•16 December 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title:
Buljat v Coles Supermarkets Australia Pty Ltd
Citation:
[2022] ACTCA 71
Hearing Date:
14 November 2022
DecisionDate:
16 December 2022
Before:
Elkaim, Mossop and Kennett JJ
Decision:
See [111]
Catchwords:
APPEAL – PERSONAL INJURY – Liability – appellant slipped on grape in respondent’s supermarket – appeal against finding that the respondent did not breach its duty of care – where respondent called no evidence in relation to system of cleaning – finding that “clean as you go” system of inspection with no dedicated staff member assigned to look for hazards and no timed inspections was insufficient to amount to reasonable care – breach of duty of care established – appeal allowed
APPEAL – PERSONAL INJURY – Damages – where fall caused muscle tear and hematoma – not established that fall caused subsequent deep vein thrombosis – Civil Law (Wrongs) Act 2002 (ACT) s 45(1)(b) – whether liability should be extended where appellant suffering due to false belief that fall caused thrombosis – where hypochondria post-dated fall – liability not extended – damages limited to date of discovery of deep vein thrombosis
Legislation Cited:
Civil Law (Wrongs) Act 2002 (ACT), ss 42, 43, 44, 45, 168, Ch 4
Court Procedures Rules 2006 (ACT)
Cases Cited:
Alat v Franklins Pty Ltd [2012] NSWDC 104; 15 DCLR (NSW) 203
Baker v Mackenzie & Anor [2015] ACTSC 272; 72 MVR 421
Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241
Brozinic v ISS Facility Services Australia Limited [2014] ACTSC 8
Buljat v Coles Supermarkets Australia Pty Ltd [2022] ACTSC 47
Corrigan v Coles Supermarkets Australia Ltd (No 2) [2017] NSWDC 238
Franklins Ltd v Brown [2000] NSWCA 177
Kocis v SE Dickens Pty Ltd [1998] 3 VR 308
Prasad v Woolworths Ltd [2017] NSWDC 79; 24 DCLR (NSW) 356
Razzak v Coles Supermarkets Australia Pty Ltd [2017] NSWDC 183
Shoeys Pty Ltd v Allan (1991) Aust Torts Reports 81-104
Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182
Wallace v Kam [2013] HCA 19; 250 CLR 375
Watts v Rake (1960) 108 CLR 158Woolworths Ltd v McQuillan [2017] NSWCA 202
Parties:
Zlata Buljat (Appellant)
Coles Supermarkets Australia Pty Ltd (Respondent)
Representation:
Counsel
D Hooke SC with D Richards (Appellant)
N Polin SC (Respondent)
Solicitors
Maliganis Edwards Johnson (Appellant)
McCulloch & Buggy Lawyers (Respondent)
File Number:
ACTCA 15 of 2022
Decision under appeal:
Court/Tribunal: Supreme Court
Before: Balla AJ
Date of Decision: 18 March 2022
Case Title: Buljat v Coles Supermarkets Australia Pty Ltd
Citation: [2022] ACTSC 47
Court File Number: SC 326 of 2020
THE COURT:
Introduction
1.On 23 September 2017 the appellant was shopping in the Coles supermarket in Woden. When she was alongside a fresh meat display, she slipped and fell to the ground. She injured her right leg. She made a claim against the supermarket. It was not disputed that:
(a)the appellant had slipped on a green grape; and
(b)the respondent had owed a duty of care to the appellant as she had made her way through its store.
What was primarily in dispute was whether or not the respondent had been in breach of its duty to take reasonable care. If a failure to take reasonable care was established, then there was a contest as to the extent of causally related damage.
The proceedings were heard by the primary judge from 2 to 4 March 2022. The decision was given on 18 March 2022: Buljat v Coles Supermarkets Australia Pty Ltd [2022] ACTSC 47. The primary judge found in favour of the defendant. In case she was wrong, the primary judge assessed damages in the sum of $16,538.56 plus interest on certain components of that amount.
The appellant has appealed against both the liability finding and the damages assessment.
The decision below
The primary judge made a number of preliminary findings in favour of the appellant:
(a)the appellant had slipped and fallen onto her right shin (at [5], [7]);
(b)the appellant had stood on a grape “immediately before losing her footing” (at [8]); and
(c)the appellant fell forward after stepping onto the grape (at [9]).
Having made the above findings, her Honour went on to determine liability. Her Honour first found that:
(a)the risk of the fall was foreseeable (at [14]); and
(b)the risk was not insignificant (at [15]).
Her Honour went on to decide whether or not Coles had “failed to take reasonable precautions against the risk of harm” (at [16]). Her Honour then separately addressed the two claims made by the appellant.
The first claim was that precautions should have been taken to prevent grapes from falling on the floor, namely, using closed packaging so that they could not be dropped, or preventing customers from eating grapes as they walked through the store. Her Honour rejected this submission because there was no expert or other evidence to support it. There was no evidence as to what type of packaging would prevent customers from being able to open the packet, there may be health issues relating to keeping grapes in a closed bag and it was not clear how customers would be prevented from eating grapes while they were still in the store (at [19-[20]). The appellant does not challenge her Honour’s conclusion on this point.
The second claim, which concerned the adequacy of the inspection and cleaning system, is the focus of the appeal. The system operated by the respondent was one of essentially requiring all of its staff, in the course of their duties, to identify hazards if they came across them or if they were informed (for example, by a member of the public) of them. No employee had a specific obligation to look for hazards and no employee was directed to give precedence to looking for hazards at any specific time intervals.
Her Honour referred to the evidence of two particular witnesses, Melissa Rixon and Louise Skinner, about the operation of that system.
Ms Rixon was the store manager at the time. She identified that cleaners cleaned the store before and after hours. The store was not cleaned by external cleaners while it was open to customers.
She said that there had been incidents from time to time with customers falling on grapes. The staff were instructed at all times to keep a lookout for spillages and anything that may be a hazard and were also taught, in particular, to be on the lookout for grapes that may have fallen on the floor.
Ms Skinner, who was the employee of Coles that saw the appellant immediately after her fall, said that the most common item that customers would slip on was grapes. She said that the manager in the fresh produce section caught a lot of people eating grapes and kids would run up and grab them. Customers would take grapes from the produce section and drop them while eating them as they walked around the store or feed them to their children. She recorded that she had worked in the “self-serve area” between 2013 and 2019 and was told by Coles to be aware of the floor and make sure things were not spilled on the floor. She said that staff were shown a video including five to eight minutes on dealing with a spill and that they were instructed to keep a lookout and to clean as they went.
The primary judge then referred to the submissions made in relation to comparable cases involving a “clean as you go” policy: Prasad v Woolworths Ltd [2017] NSWDC 79; 24 DCLR (NSW) 356; Razzak v Coles Supermarkets Australia Pty Ltd [2017] NSWDC 183 and Woolworths Ltd v McQuillan [2017] NSWCA 202. She noted that these authorities have not found that “clean as you go” systems are insufficient solely because they do not have a periodic and documented system of inspection. Her Honour found (at [32]) that there was no evidence that the system at the Woden Coles had not been complied with and that, noting that “a proper lookout does not mean a perfect lookout”, there was no evidence that “staff have not kept a proper lookout” even if a grape had been missed (at [35]). Her Honour concluded “I decline to find that Ms Buljat has shown that Coles breached its duty of care to Ms Buljat.”
Her Honour then went on to make contingent findings in relation to damages. She traced the medical attendances of the appellant following the fall. She identified that an ultrasound on 28 September 2017 disclosed “a tiny subcutaneous haematoma and a tiny tear of the tibialis anterior muscle” (at [40]). She recorded that a further ultrasound of the calf muscles reported on 15 November 2017 showed that the tear had healed without any visible scarring. She found that the appellant attended the emergency department at the Canberra Hospital on 9 February 2018 complaining of pain and swelling in her right calf for two days (at [50]). Investigations of this condition identified a deep vein thrombosis (DVT) in the tibioperoneal vessels. She was placed on medication and further ultrasounds in 2018 showed no persistent DVT.
She found that the appellant had suffered an earlier spontaneous DVT and pulmonary embolus in 2015 which resolved after she took anticoagulation medication for six months (at [52]). However, after the 2018 DVT the appellant was again prescribed blood thinners and has been told that she will need to take them for the rest of her life. She referred to the appellant’s extreme concern about having to take this medication, due to the possibility of a brain bleed and falling into a coma.
The primary judge identified (at [53]) the medical issues as being:
(a)whether the DVT in February 2018 was related to the injury sustained in the fall; and
(b)whether the appellant’s ongoing symptoms were related to the fall by reason of a “post thrombotic syndrome” or a chronic pain disorder.
So far as the first issue was concerned, her Honour identified that there had been a conflict of opinion between the two vascular surgeons (Associate Professor Paul Myers and Professor Rodney Lane) retained to give an opinion about the causal link between the DVT and the appellant’s ongoing symptoms. However, the difference of opinion arose from inaccurate instructions given to the expert retained by the appellant as to the location of the DVT (at [56]). By the time the joint report was subsequently produced by the experts (only received on the second day of the hearing) Dr Myers considered it was possible but unlikely that the DVT identified in February 2018 was related to the fall and Dr Lane said it was possible but highly unlikely that the DVT was so related (at [57]). Her Honour made reference to the reasons for that conclusion and to the opinion of Dr Lane that the 2015 DVT was the probable predisposing factor as it would have caused venous wall damage (at [58).
Her Honour referred to the concession in submissions by counsel for the appellant that the February 2018 DVT was not related to the fall. She found that the appellant had failed to show, on the balance of probabilities, that the DVT was related to her fall (at [59]-[60]).
Her Honour then addressed whether the post thrombotic syndrome referred to in some of the expert medical evidence was caused by the fall at Coles. She identified that she had not been provided with an explanation from a doctor as to the features of that syndrome (at [61]). However, her Honour did understand that it related to ongoing pain and swelling in the right leg as a consequence of a DVT.
Her Honour’s comment about the lack of explanation of post thrombotic syndrome was made in the following circumstances. During the course of the proceedings, her Honour had asked the parties for an explanation as to what post thrombotic syndrome involved. Ultimately, counsel for the respondent sought to tender a document describing the condition. That was objected to by counsel for the appellant and was not provided.
Her Honour then referred to the evidence of Dr Garth Eaton, an occupational physician, whose report was tendered by the appellant. She recorded that his conclusion that the injuries sustained in the accident likely significantly contributed to the development of post‑thrombotic syndrome was based upon the assumption that the fall was likely to have significantly contributed to the development of the DVT. She noted (at [66]-[67]) that counsel for the appellant had not invited her to conclude that the post thrombotic syndrome arose out of the injury sustained in the fall at Coles and declined to make such a finding.
She next turned to consider whether chronic pain syndrome was caused by the fall. She referred to the terms of the report of Dr Eaton and the submissions made by counsel for the appellant. The submission made by counsel for the appellant was, in effect, that continuity of pain in the lower leg since the fall with no break in the pain during that period supported a finding that the pain is related to the fall. The primary judge said (at [70]) that the submission overlooked the “paucity of medical evidence supporting the proposition that [the appellant] has a chronic pain syndrome causally related to the accident and the medical evidence attributing her symptoms to other causes”.
Her Honour found that Dr Eaton did not say that the brief episode of pain caused by the fall in 2017 was the cause of a chronic pain disorder from 2018 to today. She identified that his opinion was based upon the assumption that pain and swelling in her right leg and associated psychological and emotional difficulties were as a result of the fall, rather than on the basis that the 2018 DVT and any post thrombotic syndrome was unrelated to the fall (at [71]).
Similarly, the psychiatrist retained by the appellant, Dr William Knox, had expressed an opinion based on the effect of the 2018 DVT. The psychiatrist retained by the respondent, Dr Doron Samuel, on the other hand could not explain how her mental health difficulties were connected with the fall and the primary judge thought that the same applied in relation to any chronic pain disorder.
The primary judge concluded that no doctor had expressly related the appellant’s ongoing disabilities to the injury that she sustained in the fall (at [76]). No doctor had suggested that the minor muscle tear was causing or contributing to her ongoing complaints. Further, the appellant had not shown that the 2018 DVT was causally related to the fall (at [77]). Rather the ongoing symptoms were consistent with either a post thrombotic syndrome arising from the 2018 DVT or a psychological/psychiatric condition arising from the post thrombotic syndrome symptoms and/or the appellant’s concern as to the possible side effects of the medication which she takes in order to prevent another DVT (at [77]).
Her Honour then indicated the damages that would have been awarded if she had found Coles had breached its duty of care.
The contingent assessment of damages was expressed briefly. Her Honour concluded:
(a)General damages for pain and suffering would have been $15,000 plus interest, awarded from the date of the fall up until 15 November 2017 when the ultrasound report showed that the tear had healed without any visible scarring.
(b)Domestic assistance in the past would have been awarded at three hours per week for the seven weeks up until 15 November 2017 (three hours x seven weeks x $48.20/hour = $1012.20 plus interest) with nothing in relation to the future.
(c)Out-of-pocket expenses were $526.36, based upon a calculation provided by Coles which was not disputed by counsel for the appellant.
(d)No amount would have been awarded for past economic loss (for which no amount had been claimed) or for future economic loss.
The primary judge ordered that there be judgment for the respondent and that the appellant pay the respondent’s costs.
Grounds of appeal
The grounds of appeal that were pressed were as follows:
4.1. The Primary Judge erred in finding that the Respondent did not breach its duty of care to the Appellant.
…
4.6. The Primary Judge implicitly found that there was an absence of any system of periodic inspection of the floor at the premises with a view to identifying and removing hazards that may be present.
The primary judge erred in failing to find that the absence of a system of periodic inspection in the circumstances amounted to a breach of duty of care.
4.7. The Primary Judge erred in finding that there was in operation at the premises at the relevant time an adequate clean as you go system, in circumstances where the Respondent had failed in its Defence to plead a version of facts in support of the existence of such a system.
4.8. The Primary Judge erred in failing to find that, in the absence of any positive evidence to demonstrate that the premises had been inspected for dangers between 7.00 am and 1:28 pm on the date of the Appellant’s injury;-
4.8.1. the Respondent was negligent; and
4.8.2 the Respondent’s negligence was a necessary condition of the injury suffered by the Appellant.
4.9. The Primary Judge erred in finding that the Appellant’s injuries from the fall on 23 September 2017 had ceased on 15 November 2017, when such a finding was not open on the evidence, given the acceptance that the Appellant suffered pain and swelling from 23 September 2017 which continued after 15 November 2017.
4.10. The Primary Judge erred in not accepting the opinion of Dr Garth Eaton, Occupational Physician, when his was the only admissible expert evidence available to her in respect of the finding, and where Dr Eaton diagnosed the Appellant as suffering from an accident related chronic pain disorder.
4.11. The Primary Judge failed to find that the Appellant’s depression was caused by her chronic pain disorder, notwithstanding the opinion of Dr Samuel, psychiatrist, who found that the Appellant’s physical injuries were the cause of her depression.
4.12. The Primary Judge’s assessment of general damages was manifestly inadequate.
4.13. In the circumstances the Primary Judge erred in her assessment of damages.
Grounds of appeal asserting that s 168 of the Civil Law (Wrongs) Act 2002 (ACT) (CLW Act) provided an alternative cause of action, in relation to which substantively different principles to those arising under Ch 4 of the CLW Act were to be applied, were not pressed. For the purposes of the appeal, the appellant accepted the conclusion in Brozinic v ISS Facility Services Australia Limited [2014] ACTSC 8 at [51]-[52] that the provisions of Ch 4 of the CLW Act (including ss 42-44) were to be applied to a claim involving a breach of occupiers’ duty.
Breach of duty of care (grounds 4.1, 4.6, 4.7)
Breach of duty was to be assessed in accordance with the general principles in ss 42-44 of the CLW Act. The key issue arising under s 43 was whether a reasonable person in the position of the respondent would have taken additional precautions to those actually taken.
The “clean as you go” cleaning system operated through the opening hours of the store. The store was cleaned by dedicated cleaners before and after opening hours, but not during those hours. The appellant’s fall occurred six hours and 32 minutes after opening. Accordingly, there had been no specific cleaning during this period. Safety for this period relied entirely upon staff, going about their normal duties, identifying hazards.
In Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241, a case involving a slip and fall upon some jelly on the floor of a shopping mall, Priestley JA explained the foundation for the obligation as follows (at 249):
The duty arises from the following factors: the public nature of the premises; the defendant’s interest in encouraging the greatest possible number of people to come there; the likelihood of spillage accidents in the common public part of the premises unless very carefully guarded against and the general expectation which in my judgment exists in the community that the persons in control of areas such as that where the plaintiff slipped will guard very carefully against such dangers. The duty upon the persons in charge to which the foregoing factors give rise is to have such a system of watching for the happening of (inter alia) spillages as will enable them to be removed promptly after their occurrence.
McHugh JA examined the circumstances of the mall, describing (at 255) the risk of injury to users of the mall from rubbish and slippery substances as “both constant and real”. He concluded that on the facts in that case, reasonable care required “a system of continuous inspection and cleaning to eliminate accidents as far as was reasonably possible”. That required the employment of a cleaner throughout the shopping day (at 255) that would have removed a spilt substance “within a few minutes” (at 256).
In Shoeys Pty Ltd v Allan (1991) Aust Torts Reports 81-104 the New South Wales Court of Appeal was addressing a slip and fall in fruit and vegetable sections of a shop. In the course of allowing an appeal, Handley JA (with whom Priestley JA agreed) referred to the fact that “the law imposes a high duty of care on the occupiers of shops such as supermarkets to protect the public from the risks associated with the presence of material which has been spilled or dropped in areas used by the public”: at 68,942. He went on to say that the duty remains one of reasonable care and that an occupier “cannot reasonably be expected to prevent material being dropped in areas being used by the public” or “remove material the instant it is dropped”. He continued:
What can be expected is that a system will exist for routine inspection and cleaning of busy high-risk areas during the times they are in use by the public. It can also be expected that dropped material coming to the notice of staff will be reported immediately and that one or more staff members will be available to take prompt action to remove the material.
In Franklins Ltd v Brown [2000] NSWCA 177 the New South Wales Court of Appeal was dealing with a slip as a result of a loose lettuce leaf in a supermarket. There was a regular system of cleaning the floors in the fruit and vegetable produce area. However, that system did not cover a period of half an hour in the early afternoon. The defendant’s evidence sought to suggest that during that period, shop assistants working in that part of the store were required to keep their eyes open for materials which had fallen on the floor, and if such material was seen to be on the floor, either to remove it themselves or to have it removed by others. Of this system, Powell JA (with whom Heydon JA and Brownie AJA agreed) said (at [10]):
This system, in my view, was clearly inadequate and his Honour was perfectly entitled to say that that system was not good enough.
In Alat v Franklins Pty Ltd [2012] NSWDC 104; 15 DCLR (NSW) 203 a judge of the New South Wales District Court was addressing a slip on some thickened cream on the floor of a supermarket. The issue was the frequency of any cleaning and inspection system. The finding of the court was that, as at 2008, a reasonable person would have instituted a system of cleaning and inspection of an aisle such as that in question (which contained numerous liquid items) with a minimum frequency of every 15 minutes: at [50].
Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182 involved a disabled person who was using crutches slipping and falling on what had been a hot chip or grease deposited by such a chip in a “sidewalk sales area” outside a department store in a shopping centre. So far as the sidewalk sales area was concerned, it was part of the duties of a “people greeter” to keep an eye out for spillages in that area. There was no system in place on the day of the incident for the periodic inspection and necessary cleaning of the sidewalk sales area. The evidence established that the common area adjacent to the sidewalk sales area was cleaned every 20 minutes. The principal issue so far as the High Court was concerned was how long the chip had been on the ground before the slip occurred. In addressing that issue, the court said (at [38]) that reasonable care required inspection and removal of slipping hazards at intervals not greater than 20 minutes in the sidewalk sales area. That statement must be seen to have been made in the context of the evidence that this was the inspection and cleaning regime in place in adjoining areas. It was, therefore, clearly anchored in the evidence available in the case before it.
Prasad involved a slip on a liquid substance in the aisle of a Woolworths store. Woolworths had no dedicated cleaners during trading hours and relied on a “clean as you go” approach. The approach did not involve any obligation on staff to look for hazards, only to act when they were observed. The District Court judge found that in the absence of some evidence of the effectiveness of the clean as you go approach, it was not a reasonable system and hence there was a breach of duty of care (at [13]-[17]).
Corrigan v Coles Supermarkets Australia Ltd (No 2) [2017] NSWDC 238 was a case involving a slip and fall on some wet flooring. Among the precautions taken was the “clean as you go” system. That system was said to not require ordinary Coles staff to look for foreign matter on the floor. It was found not to be a reasonable system for detecting and removing the hazard created by clear substances on the floor: at [47]. However, in that case, one of the additional measures taken was that another employee had the role of wiping up any water or spills in the area in question. That evidence persuaded the court that a reasonable person in Coles’ position would not have done more than employ such a person in relation to recognising and removing slipping hazards in the front area of the store.
Razzak involved a slip in the produce area of a Coles supermarket. Nonslip mats were put in high-risk areas. There was evidence of a “clean as you go” policy. The factual conclusion was that “the Coles system of cleaning, reinforced by training and supervision, resulted in the floor of the fresh produce area being checked, and if necessary cleaned, at least every 10 minutes”: at [113]. That was sufficient to amount to reasonable care.
McQuillan involved the plaintiff slipping on a grape. Woolworths had been found liable at first instance. It was conceded by the appellant that there was no evidence that the cleaning system could be improved. It had a number of components:
(a)overnight cleaning finished at 7am;
(b)instructions were given to all employees to be constantly on alert for any material, in particular grapes, if on the floor and to clean, pick up or deal with such material immediately;
(c)signs on the floor warning staff and customers to look out for grapes and to pick them up and dispose of them; and
(d)hourly floor inspections by staff prompted by an announcement and bell over the public announcement system commencing just before 10am when each staff member was to inspect the designated area and assess and deal with any slip risk.
In those circumstances, the Court of Appeal allowed an appeal and set aside the decision below.
Each of these cases reflect a factual conclusion as to whether or not the conduct of the occupier was reasonable within the legal framework in place from time to time. They reflect judgments of trial judges and appellate courts made by reference to the particular evidence about the use of the premises and the extent of the precautions taken in relation to the risk of slips and falls. Because they incorporate a standard of reasonableness they must inevitably reflect, to an extent, social values and community expectations: see Girvan at 244-245, 249.
The evidence in the present case was that grapes were commonly dropped to the floor. In fact, they were more commonly dropped than any other item. The grapes would be dropped in different parts of the store because the customers, or their children, would drop them as they ate them while meandering through the supermarket.
The day in question was a busy one at the store. Yet the limited evidence about the area where the incident occurred was to the effect that it was not an area that would be regularly passed by staff.
To the extent that there was evidence of a system, it was one which involved staff doing other jobs keeping a lookout for spills or dropped items. So far as the area in question was concerned, no particular staff member was given the task of looking out for spills: cf Corrigan. Nor was it a case where the level of staff activity in the relevant area was such that an instruction to keep a lookout for items or spillages on the floor would provide an appropriate level of inspection such as was the case in the fresh produce section in Razzak. Further, there was no time at which the system required an inspection to be undertaken by staff in any particular area: cf McQuillan. There was evidence that a member of the meat department was in the area at the time when the fall occurred but no evidence as to the activities of that person in relation to detecting slipping hazards.
Of significance in the present case was that there was no evidence led by Coles in its case on this issue. It did not, for example, lead any evidence about the effectiveness of a system which involved all staff being required to keep a general lookout in the course of doing their jobs, but had no staff dedicated to that job or any particular time at which an inspection ought to be made. While the onus remained on the appellant to establish that there was a breach of duty, that conclusion is more easily reached when the evidence discloses apparent inadequacies in the system of a large national business such as Coles and a deliberate choice is made to lead no evidence from the organisation which would support the reasonableness of its approach having regard to issues of cost and effectiveness.
In the absence of such evidence, we conclude that a reasonable person in the position of Coles would have taken additional steps to ensure that particular attention would be paid to the issue of potential slipping hazards on the floor in the area in question. That would not necessarily require that there be separate staff whose job it was to make such an inspection, but that at least there be some system which required staff to specifically direct their attention to that issue not less frequently than once every hour. In the present case, it is not necessary to be more precise than that because of the conclusion, set out below, that causation would be established even if the required period of inspection was much greater than the one-hour period identified. Particular attention could have been paid to the area in question in a variety of ways. However, a reasonable person would have done more than give the task of watching out for spills as an additional task to all staff members to do in addition to their other jobs. That system carried with it the likelihood that spills and items on the floor would be missed because there was no dedicated attention paid to that issue at any particular time. It inevitably subordinated the detection of spills and hazardous items to the performance of the staff members’ other duties.
For these reasons, contrary to the conclusion reached by the primary judge, breach of duty was, on the evidence, established.
Causation (ground 4.8)
In order to succeed on liability, the appellant was required to establish that the precautions which a reasonable person in the respondent’s position would have taken would have resulted in the grape being detected and hence the slip not occurring.
The primary judge found that the fall occurred six hours and 32 minutes after the shop opened. The appellant contended that the primary judge erred in failing to find that, in the absence of positive evidence to demonstrate that the premises had been inspected for dangers between 7am and 1:32pm on the date of the appellant’s injury, the respondent’s negligence was a necessary condition of the injury to the appellant.
The appellant relied upon the approach to causation adopted in Strong which picked up the approach adopted by Hayne JA in Kocis v SE Dickens Pty Ltd [1998] 3 VR 408. In that case (at 430) Hayne JA said:
In my view it is of the first importance to bear steadily in mind that a plaintiff must prove his or her case on the balance of probabilities and that it is no answer to the question whether something has been demonstrated as being more probable than not to say that there is another possibility open. Thus, the jury may reasonably conclude that the probabilities are that a particular spillage would have been cleaned up by the proper application of a reasonable cleaning regime on the part of the defendant occupier while at the same time acknowledging the possibility (but not probability) that the substance was spilled only a moment before the plaintiff slipped on it. The question of causation is to be resolved by consideration of the probabilities.
His Honour posited a case in which reasonable care required the occupier to carry out inspections at hourly intervals. If no inspection had been carried out and a plaintiff slipped on a spill eight hours after the premises opened, it may be that there was no basis for concluding that the spill is likely to have occurred at some particular time rather than any other time. In such a situation, the probabilities are that the spill occurred in the first seven hours of trading and not in the hour preceding the plaintiff slipping and falling. That is simply because seven hours is a longer period than one hour (at 432).
In the present case, the store had been open for six hours and 32 minutes. There was no evidence as to how effective the system of collateral inspection was. Further, there was no evidence that would make it more likely that the grape was dropped at any particular time. A system of dedicated inspection would have detected a grape or other spill or slip hazard in the area. That is an inference available to be drawn because of the dedicated nature of the inspection. The probabilities are that the grape was dropped in the earlier five hours and 32 minutes rather than the one hour immediately preceding the fall. Thus, if a reasonable system would have included hourly (or more frequent) inspection, the probability is that such a system would have prevented the harm that occurred.
Following from the findings above in relation to breach of duty, causation was established in relation to injuries arising from the fall. Therefore, it will be appropriate to enter judgment for the appellant.
Damages (grounds 4.9-4.13)
Her Honour assessed damages at $16,538.56. This was made up of general damages of $15,000, past domestic care of $1,012.20 and out-of-pocket expenses of $526.36. Her Honour would also have awarded interest on the two former heads of damages, but these figures were not calculated.
At the core of the assessment of damages was the finding that the injury had fully resolved by 15 November 2017. Therefore, the damages related a period of about seven weeks.
Although the primary judge did not say so expressly, the reason 15 November 2017 was treated as a cut-off date was because the appellant underwent an ultrasound on 14 November 2017 and it was the report of that ultrasound dated 15 November 2017, which revealed that a muscle tear associated with the fall had resolved leaving no apparent scarring.
The appellant attacked this closed period for two reasons:
(a)the finding ignored continuing complaints of pain at the injury site which had been made by the appellant after 15 November 2017; and
(b)the appellant suffered from a psychiatric injury or chronic pain disorder which had, at least as one of its causes, the fall at the respondent’s premises.
The complications, so far as the appellant was concerned, in relation to quantum arose from the DVT suffered by the appellant in February 2018. The appellant was convinced that this condition was a consequence of the fall at Coles. Not only did the DVT cause her considerable pain in its own right, but it gave rise to a psychiatric reaction ultimately leading to a diagnosis of major depression.
The appellant’s case at trial was that the DVT, and all its consequences, was a product of the respondent’s negligence. This position had to be abandoned when it became evident during the trial, through the joint opinion of Dr Myers and Dr Lane, that the DVT was, on the balance of probabilities, not connected to the fall. This in turn meant that a diagnosed condition of “post thrombotic syndrome” (the nature and significance of which was not described in the evidence) was also not connected to the fall.
Grounds 4.10 and 4.11 – chronic pain disorder and depression
These grounds assert a failure to find a causally related chronic pain disorder or causally related depression. The different sources of evidence in relation to causation of these conditions were:
(a)the evidence of the appellant and her husband;
(b)the evidence of Dr Eaton, an occupational physician; and
(c)the evidence of Dr Knox and Dr Samuel, both psychiatrists.
The primary judge summarised the evidence given by the appellant and her husband as follows (at [51]):
Ms Buljat in her evidence, which was supported by her husband, complains of constant pain and swelling in the right shin since her fall in 2017 with her pain increasing over time.
The significance of the diagnosis of the blood clot in her leg was made clear by her husband’s evidence:
Did you notice any difference in how you observed how much pain she was in before and after they - her coming home with a blood clot?
---I say before it happened gradually with time but after she was told that they discovered the blood clot in her right leg, her psychological state was completely changed. She became completely different person, from that particular day when she was told they discovered a blood clot in her right leg.
The expert medical evidence was initially prepared on the basis that there was a causal link between the fall and the onset of the DVT. As a consequence, it was not essential to separate out the physical and psychological consequences of the fall from the physical and psychological consequences that followed from the DVT. That position changed on day two of the trial when the experts agreed that it was unlikely or very unlikely that the DVT was caused by the fall. The appellant’s case was then required to be run on a basis for which it had not been prepared, namely, that the initial consequences of the fall either continued beyond the DVT, or alternatively that they made at least a material contribution to the psychiatric condition of the appellant after the DVT. The primary judge’s conclusion was at [76]-[77]:
76. Not one doctor has expressly related Ms Buljat’s ongoing disabilities to the injury she sustained in the fall. In particular, no one has suggested that the minor muscle tear is causing or contributing to her ongoing complaints.
77. Ms Buljat has not shown that the 2018 DVT is causally related to the fall. The weight of the medical evidence is to the effect that her ongoing symptoms are consistent with either:
(a)a post thrombotic syndrome arising out of the 2018 DVT; or
(b)a psychological/psychiatric condition reactive to the post thrombotic syndrome symptoms and/or her concerns as to the possible side effects of the medication she takes to prevent another DVT.
That conclusion was accurate.
The evidence of Dr Eaton was based on a single consultation with the appellant in February 2021. This was three years and five months after the accident and just over three years after the DVT. Dr Eaton reviewed a large body of documentary material provided to him. He prepared a report dated 5 March 2021. Some portions of that report were not read. As a result of those portions not being read, he was not cross-examined. The critical passages of his report, showing those portions which were not read are as follows:
6. Diagnosis
Initial soft tissue injuries including bruising and haematoma to right lower leg/shin sustained in a slip and fall incident on 23 September 2017.
Probable initial musculoligamentous strain neck, right shoulder and right upper limb.
Subsequent deep venous thrombosis right lower limb. Post thrombotic syndrome.Chronic right lower limb pain. Possible developing regional pain disorder.
Associated symptoms of stress,
anxiety, worry anddepression.7. Treatment to Date
Treatment to date has largely included the management and prevention of deep venous thrombosis and post thrombotic syndrome, pain management and psychological counselling.
8. Further Treatment/Management
Further treatment should include the ongoing use of pressure stockings, right leg elevation as needed and continuation of the blood thinning medication Xarelto. In addition Ms Buljat should continue taking her antidepressant medication and analgesics as prescribed.She may benefit fromfurther psychological counselling andpain management education.9 Prognosis
Prognosis remains guarded, as more than three years post-accident, Ms Buljat appears to be suffering with a chronic pain disorder
as well as post thrombotic syndrome and associated psychological and emotional difficultieswhich reportedly continued to be disabling.…
5) Your opinion as to whether our client’s restrictions in the workplace are attributable to the injuries our client sustained in the accident of 23 September 2017;In my opinion injuries sustained in the accident of 23 September 2017 have likely significantly contributed to the development of a subsequent deep venous thrombosis and the development of post thrombotic syndrome in the right lower limb. I defer to the treating vascular surgeon Dr Hardman for his opinion in this regard. He appears to have linked the development of the right lower limb deep venous thrombosis to the injuries sustained to the right lower leg/shin in the fall of 23 September 2017.
Initially counsel for the appellant did not seek to have the underlined words admitted into evidence on the basis that a claim that the appellant was suffering from a chronic pain disorder had not been particularised. However, subsequently both counsel accepted that it had been particularised. As a consequence, “disorder” in the expression “chronic pain disorder” in section 9 of the report was admitted into evidence. Although not expressly dealt with in the transcript, it appears that the parties and the primary judge also treated the words “Possible developing regional pain disorder” as having been admitted even though it was not initially put into evidence.
As will be apparent, the report was prepared on the basis of a causal connection between the accident and the DVT. That is made clear by the deleted answer to question 5. Having regard to that foundation and those aspects of the report of Dr Eaton which were not read, the report does not provide an adequate basis for the contention of a causal link between the accident and the “chronic pain disorder” or “possible developing regional pain disorder” at the time of the report. It would not be appropriate to read the remaining portions of the report as including an expert opinion of a direct causal link between then current complaints of pain and the original accident. That conclusion would be unexplained and would give the report a substantially different operation to that which appears to have been intended by the author when drafting the original document.
Each of Dr Knox and Dr Samuel produced two reports.
Dr Knox’s first report dated 1 October 2019 was based on the assumption that the accident on 23 September 2017 triggered the DVT. He described the transition between accident and the DVT as follows:
The condition remained painful for the next several months and then suddenly she experienced more severe pain and quite marked swelling as a result of a deep vein thrombosis that had occurred. Subsequent damage to the tissues in the area have led to the chronic pain, swelling and oedema mentioned earlier.
His diagnosis was of chronic, moderate severity Generalised Anxiety Disorder, Panic Disorder and a mild Adjustment Disorder with Depressed Mood.
In a report dated 15 May 2021 Dr Samuel, based on his consultation with the appellant, said that she did not have psychological difficulty between the time of the fall and her DVT. She said that she had her first panic attack after the DVT. He referred to her as being a vague historian. His conclusion in relation to causation of psychiatric harm was:
If the subject accident is accepted as a cause of her deep vein thrombosis, then, in my view, it made a non-trivial contribution to the development of her Panic Disorder and Persistent Depressive Disorder, in addition to the contributions made by having had a pulmonary embolism previously and pancreatic artery aneurism. …
Dr Knox produced another report dated 24 January 2022, which was more tentative about the connection between the injury on 23 September 2017 and the deep vein thrombosis. He said:
I have limited expertise in giving other than a general medical opinion on the relationship between your client’s index injury and the subsequent deep vein thrombosis, although given that the thrombosis occurred in the area of significant injury it is difficult to not see the index accident as having some role in contributing to the subsequent deep vein thrombosis and the physical and mental health problems which have followed. It is however understood that Ms Buljat, given her prior history, was likely predisposed to a clotting event.
He continued:
Ms Buljat for her part clearly connects her ongoing poor physical and mental health to the index accident and it being a major factor in her very significant ongoing health problems and broader life disability.
He summarised the appellant’s position as follows:
As reported to you on 1 October 2019 Ms Buljat has been exceedingly hypochondriacal since the deep vein thrombosis and subsequent pain and swelling in the right leg that followed the 23 September 2017 fall. She persistently ruminates about future negative health outcomes.
His diagnosis was Generalised Anxiety Disorder along with Panic Disorder. He added a diagnosis of Major Depressive Disorder.
Dr Samuel produced a second report dated 23 February 2022. This was prepared with the benefit of not only Dr Knox’s second report but also a wide range of clinical notes and reports. He characterised Dr Knox’s report as having shifted the focus of causal responsibility from the fall itself to Ms Buljat’s perception. Having reviewed the mass of documentation, the conclusion that he reached was:
If it is the case that neither the need for lifelong anticoagulation, nor the post-thrombotic syndrome or other physical conditions are related to the fall at Coles, it remains puzzling as to how the diagnosed mental health difficulties are connected to the fall, beyond the Plaintiff’s beliefs. As has been documented in the medical records, the Plaintiff has had documented strongly-held views, most recently concerning vaccination, that cause her distress. Given her psychological worldview, it would be reasonable to accept that the Plaintiff’s strongly-held views about the fall are consistent with other strongly-held, yet false, views that have been a source of distress to her. From a psychiatric perspective, we are seeing different manifestations of the same phenomena that pre-dated and post-dated the subject incident. Dr Knox referred to this phenomena as hypochondrias.
In my opinion, there is no clear causal nexus between the subject incident and the reported mental health difficulties.
Dr Samuel was the only doctor to be cross-examined. In cross-examination he said that although documented insomnia occurred prior to the DVT, it was only associated with depression after the DVT. He considered that the insomnia that predated the DVT was related to a physical injury such as pain. He said that the totality of the general practice records since about 2019 had very limited emphasis on the psychological component of the appellant’s symptoms. He was also asked whether the appellant was suffering from the DSM-IV diagnosis of chronic pain disorder. Dr Samuel indicated that he did not form the opinion that the appellant had a chronic pain disorder. Nor did Dr Knox or her treating doctors. He had not read Dr Eaton’s report.
Having regard to the expert evidence, the conclusion reached by the primary judge at [76] was correct. There was no basis in the expert evidence for a conclusion that, notwithstanding that the DVT was not caused by the accident, ongoing complaints of pain were caused or materially contributed to by that accident as distinct from the DVT or the unexplained post thrombotic syndrome. Similarly, there was no basis for the conclusion that the major depression diagnosed by Dr Knox was caused by or materially contributed to by the accident as opposed to the DVT or other conditions from which the appellant suffered. Further, it was not a case in which the existence of a continuum of complaint of pain in the right leg before the DVT and after the DVT would, in the absence of appropriate expert evidence as to causation, provide an adequate foundation for a conclusion that the cause of that pain was the initial accident.
Grounds 4.10 and 4.11: Alternative argument
As an alternative to establishing causally related harm based upon a medically proven connection, the appellant submitted that her belief, accepted to be honestly held, that the DVT was a consequence of the fall, was enough to make the defendant liable for the psychological consequences of that belief.
The respondent submitted that the evidence, both lay and expert, was overwhelming to the effect that the appellant’s mental health condition had not been caused by the fall. Both temporally and medically, it had been caused by the DVT.
Section 45(1) of the CLW Act provides:
(1)A decision that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the happening of the harm (‘factual causation’);
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (the scope of liability).
…
(3) In deciding the scope of liability, the court must consider (among other relevant things) whether or not, and why, responsibility for the harm should be imposed on the negligent party.
The section was considered by Mossop AsJ in Baker v Mackenzie & Anor [2015] ACTSC 272; 72 MVR 421. That was a case involving injuries arising when a pedestrian was struck by a car. Some consideration was given to the operation of s 45(1) (at [40]):
40. … If factual causation is established, the plaintiff must also establish that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused: CLW Act s 45. … The qualification in s 45(1)(b) arises out of recommendation 29 of the Ipp Report (Review of the Law of Negligence Final Report, September 2002). That recommendation was designed to address (at [7.47]):
... a perception amongst various groups that courts are too willing to impose liability for consequences that are only ‘remotely’ connected with the defendant’s conduct. In other words, there is a feeling that the net of responsibility for the consequences of negligence is being cast too widely.
It provides a legislative indication to courts that there is a normative issue to be considered when determining whether factually causative negligence should lead to liability for particular harm. In my view there can be no doubt that in a case such as the present it is appropriate for the scope of the first defendant’s liability to extend to the harm caused to the plaintiff. There was a direct and immediate connection between the driving of the first defendant’s vehicle and the injury suffered by the plaintiff. This appears to me not to be a case where any significant normative issue arises as to whether liability should extend to the harm suffered by the plaintiff.
In Wallace v Kam [2013] HCA 19; 250 CLR 375 at [22]-[23] the High Court was considering a New South Wales statutory provision the equivalent of s 45(1) and (3) of the CLW Act. The court indicated that in a case within an established class, the normative question posed by the equivalent of s 45(1)(b) could be answered by reference to precedent. However, in a novel case, the equivalent of s 45(3) made it incumbent on the court to explicitly consider and explain, in terms of legal policy, whether or not, and if so why, responsibility for the harm should be imposed on the negligent party.
In the present case, factual causation is established because the negligence that led to the fall was a necessary condition for the establishment of the false belief of a causal connection with the DVT. If there had been no negligence and no accident, then there would have been no fact upon which the appellant might have fixed as a cause of her DVT. As a consequence, s 45(1)(a) is satisfied because the accident was a necessary condition for the false belief.
It is then necessary to consider s 45(1)(b). In one sense it could be said that the predisposition to have false beliefs as to causation is simply a manifestation of the principle that a defendant takes a plaintiff as it finds her: Watts v Rake (1960) 108 CLR 158 at 160, 164. However, s 45(1)(b) requires consideration of the appropriateness of extension of liability in that way. At least in a case where it is not established that the plaintiff has, at the time of the incident giving rise to liability, a psychiatric condition which predisposes her to false beliefs, it is not appropriate to extend liability for harm caused by such false beliefs. If the medical evidence did establish a pre‑existing psychiatric condition, then there would be a sounder basis for the extension of liability because the law tends to treat such psychiatric conditions as beyond the control of the injured person. Where such a psychiatric condition is absent then the responsibility for the false belief lies with the person who holds it and hence ought not be made a basis for liability of the negligent party. Dr Knox identified the appellant as demonstrating hypochondria. It is not appropriate for liability to extend to harm caused by the false beliefs of a hypochondriac as to causation.
Accordingly, the respondent should not be held liable for the appellant’s psychiatric condition insofar as it is caused or contributed to by her false belief as to causation.
Ground 4.9: End date for damages
The other area of contention was the cut-off date of 15 November 2017 for damages adopted by the primary judge. As referred to above, this was the date of an ultrasound report which demonstrated that a muscle tear suffered by the appellant had resolved.
The difficulties with using this date are, first, that it assumes that pain would have ceased when the muscle tear resolved and, secondly, it ignores the appellant’s continuing complaints of pain.
The medical records showed that the reason for the conducting of the ultrasound on 14 November 2017 was that the appellant attended her doctor on 6 November 2017. The doctor recorded that she complained of “persistent pain radiating to knee and thigh”. She was recorded as being “unable to clean or garden” and having “ongoing insomnia”.
On 11 November 2017 she attended the Canberra Hospital reporting a one‑week history of “stabbing” upper chest pain on a background of her 2015 unprovoked pulmonary embolism. A CT pulmonary angiogram was performed and it was negative for a pulmonary embolism.
The ultrasound of the right calf muscles was conducted on 14 November 2017. The clinical history was “previous tibialis anterior tear. Ongoing pain.” It was that ultrasound which disclosed that the tear was no longer visible.
On 20 November 2017 the doctor recorded “pain persists”. The record indicated that it was “localised to varicose vein” but it is not clear what exactly this record meant.
The consultation on 14 December 2017 recorded that the appellant presented for review by her doctor and “reports ongoing pain”. A CT of her right shin was ordered.
A CT scan of her right ankle reported on 3 January 2018 recorded the same history as the ultrasound reported on 15 November 2017.
On 15 January 2018 the “reason for contact” with her doctor was recorded as “Pain-lower limb”.
The appellant’s evidence about what happened between 23 September 2017 and 10 February 2018 was as follows:
So, September, October, November, it was a lot of swelling like black where the shin was, you know, the shin part. And then somewhere in the same time it started to shift, like there was shifting like a swelling site, where it was in the calf, and bulging. The calf was bulging and start the calf to hurt as well. And then they discovered that I have a blood clot there with a - same spot, same leg.
When asked to describe the pain between 23 September 2017 and 10 February 2018 she said “it went worse because it spreads somehow.”
The appellant’s evidence must be seen in light of the subsequent DVT, the medical conclusion that it was unlikely or very unlikely related to the earlier injury and her false belief that it was. Further, it is clear from her attendance at the Canberra Hospital on 11 November 2017 that she had a degree of anxiety about the possible recurrence of a pulmonary embolism that provided an overlay to any pain that she was suffering as a result of the fall.
The evidence of the appellant’s husband was that he was in Croatia at the time of the fall. The appellant told him that she had had a fall. He came back at about the end of September 2017. He observed that she was limping and that her leg was swollen. She told him that she was in pain. His evidence about his observations was not very specific as to time but he appeared to say that her condition gradually started getting worse with time. However, as pointed out above, his evidence was very clear that the discovery of the blood clot in a right leg completely changed her psychological state.
So far as the primary judge’s finding that the condition had resolved by 15 November 2017 is concerned, that obviously reflects the ultrasound evidence. It is consistent with the primary judge not accepting the appellant’s complaints of ongoing pain made to her doctor after that date, in particular on 20 November 2017 and 14 December 2017, or alternatively concluding that any such pain was not causally related to the earlier accident. It is not clear which of these two approaches was adopted.
In our view it is likely that, notwithstanding the ultrasound evidence that the tear had resolved itself, the appellant continued to experience some pain as a result of the accident even though there may have been a psychological component to the causation of that pain. It was sufficient to warrant attendances at her general practitioner and referrals for further investigations. It is not possible, on the evidence, to make a more specific finding than that.
So far as the appellant’s psychological condition is concerned, there can be no doubt that the discovery of the DVT overwhelmed any ongoing physical or psychological cause of pain arising from the fall. The significance of that diagnosis was made clear by the evidence of the appellant’s husband referred to at [66] above. Having regard to the intervention of the DVT, the psychological consequences of it and the existence of the unexplained “post thrombotic syndrome”, it is not possible to conclude on the balance of probabilities that the physical effects of the fall extended beyond the discovery of the DVT. As a consequence, the date of diagnosis of the DVT provides a clear end date, more consistent with the medical records, for the award of damages that can be attributed to the fall.
The difference is a period of two months. Accepting the primary judge’s assessment of damages up to 15 November 2017 at $15,000, given the limited evidence related to the period from 15 November 2017 until 12 February 2018 it is appropriate to increase the award of general damages to $20,000. Having regard to the fact that the damage occurred in the period 23 September 2017 to 10 February 2018, interest on this will be $4000 ($20,000 x 4% x 5 years).
Applying the same formula as the primary judge to past domestic assistance, but for 14 weeks, instead of seven weeks, the result is $2,024. Interest on this calculated at Court Procedures Rules2006 (ACT) rates will be $485.
Out-of-pocket expenses should also be increased to take into account the additional period up until the DVT. Exhibit E before the primary judge indicates that an amount of $800 inclusive of interest is appropriate.
Grounds 4.12 and 4.13
Ground 4.12 asserts that the assessment of general damages was manifestly inadequate. That ground is dependent upon the other grounds of appeal succeeding. Ground 4.13 asserts that the primary judge erred on her assessment of damages. That ground adds nothing to the other grounds. It is therefore not necessary to address these grounds separately.
Orders
The orders of the Court are:
1.The appeal is allowed.
2.The orders made by the Supreme Court on 18 March 2022 are set aside.
3.Judgment is entered for the appellant in the sum of $27,309.
4.Unless any party files and serves written submissions limited to not more than three pages in relation to costs within 14 days, the respondent is to pay the appellant’s costs of the appeal and of the hearing below.
I certify that the preceding one hundred and eleven [111] numbered paragraphs are a true copy of the Reasons for Judgment of the Court.
Associate:
Date: 16 December 2022
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