Buljat v Coles Supermarkets Australia Pty Ltd
[2022] ACTSC 47
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Buljat v Coles Supermarkets Australia Pty Ltd |
Citation: | [2022] ACTSC 47 |
Hearing Date(s): | 2–4 March 2022 |
DecisionDate: | 18 March 2022 |
Before: | Balla AJ |
Decision: | See [86] |
Catchwords: | CIVIL LAW – TORTS – Negligence – liability – where the plaintiff slipped on a grape in the defendant’s supermarket – where the plaintiff brings a claim of negligence against the defendant –whether the defendant breached its duty of care to the plaintiff – defendant did not breach its duty of care – judgment for the defendant – the plaintiff to pay the defendant’s costs |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) ss 42, 43, 45, 46, 168 |
Cases Cited: | Brozinic v ISS Facility Services Australia Ltd [2014] ACTSC 8 Fatma Abdel Razzak v Coles Supermarkets Australia Pty Ltd [2017] NSWDC 183 Woolworths Ltd v McQuillan [2017] NSWCA 202 |
Parties: | Z Buljat (Plaintiff) Coles Supermarkets Australia Pty Ltd (Defendant) |
Representation: | Counsel D Richards (Plaintiff) N Polin SC (Defendant) |
| Solicitors Maliganis Edwards Johnson (Plaintiff) McCulloch & Buggy (Defendant) | |
File Number(s): | SC 326 of 2020 |
BALLA AJ
The plaintiff, Ms Buljat, fell after slipping on a grape at a Coles store in Woden on 23 September 2017 and brings a claim in negligence against the defendant, Coles Supermarkets Australia Pty Ltd (Coles).
Coles does not admit it is liable for Ms Buljat’s fall. Although contributory negligence was pleaded, it was not pressed.
Ms Buljat injured her right shin in the fall and says this injury has caused ongoing disabilities. Coles concedes that Ms Buljat injured her right shin but says her ongoing disabilities have not been caused by the fall.
How did Ms Buljat fall?
Ms Buljat said she was walking through the meat section of the store, looking at the food on display, when her right leg slipped and she fell, landing on her right shin. She had not been looking at the floor before she fell, but after she had fallen, she saw a trail in front of her leading to a squished grape.
Ms Skinner was working at Coles on that day. She walked through the fresh produce section and as she came around a corner, she saw Ms Buljat down on one knee with her hand out. After organising other staff to obtain assistance for Ms Buljat, she looked around on the floor and saw a smashed grape. It was close to Ms Buljat, probably two strides away. She formed the view that Ms Buljat would have stood on the grape, taken a step and then fallen as she took her next step.
Counsel for Coles invited me to find that Ms Buljat had not established the mechanics of her fall as her evidence was unclear and her son, who had helped his mother to her feet after the fall, had not been called to give evidence.
I do not accept this submission. Ms Buljat’s evidence as to feeling her right leg slipping together with the evidence of Ms Skinner, which establishes the position of Ms Buljat immediately after Ms Buljat lost her footing, is consistent with Ms Buljat slipping and falling forward onto her right shin.
I also accept their evidence as to the proximity of the squashed grape to Ms Buljat and am satisfied that their evidence is consistent with Ms Buljat having stepped on it immediately before losing her footing.
I find that Ms Buljat slipped and fell forward onto her right shin after stepping onto that grape.
Determination – liability
These proceedings are governed by the Civil Law (Wrongs) Act 2002 (ACT). The relevant sections are the following:
42Standard of care
For deciding whether a person (the defendant) was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant’s position who was in possession of all the information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose.
43Precautions against risk–general principles
(1)A person is not negligent in failing to take precautions against a risk of harm unless—
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b)the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the person’s position would have taken those precautions.
(2)In deciding whether a reasonable person would have taken precautions against a risk of harm, the court must consider the following (among other relevant things):
(a)the probability that the harm would happen if precautions were not taken;
(b)the likely seriousness of the harm;
(c)the burden of taking precautions to avoid the risk of harm;
(d)the social utility of the activity creating the risk of harm.
45General principles
(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.
46Burden of proof
In deciding liability for negligence, the plaintiff always bears the burden of proving, on the balance of probabilities, any fact relevant to the issue of causation.
…
168Liability of occupiers
(1)An occupier of premises owes a duty to take all care that is reasonable in the circumstances to ensure that anyone on the premises does not suffer injury or damage because of—
(a)the state of the premises; or
(b)things done or omitted to be done about the state of the premises.
(2)Without limiting subsection (1), in deciding whether the duty of care has been discharged consideration must be given to the following:
(a)the gravity and likelihood of the probable injury;
(b)the circumstances of the entry onto the premises;
(c)the nature of the premises;
(d)the knowledge the occupier has or should have about the likelihood of people or property being on the premises;
(e)the age of the person entering the premises;
(f)the ability of the person entering the premises to appreciate the danger;
(g)the burden on the occupier of removing the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.
In Brozinic v ISS Facility Services Australia Ltd [2014] ACTSC 8 at [51]–[52], Master Mossop (as his Honour then was) considered the relationship between these sections:
51The obligations of an occupier are set out in s 168 of the Civil Law (Wrongs) Act 2002. As I indicated in Harris v Commissioner for Social Housing (2013) 8 ACTLR 98 at [144]-[146] it is not clear what useful consequence the legislature was attempting to achieve when enacting s 168. Although the section makes it clear that it replaces the common law rules about the standard of care that an occupier of premises must show to people entering on the premises: s 168(4), the test under s 168 is, in substance, the same as the common law although the factors in s 168(2) groups together a list of factors to be considered.
52Although the legislature's intention as to the relationship between the tests in s 42 and s 168(1) and in s 43(2) and s 168(2) is not clear (and worthy of some legislative consideration), I proceed on the basis that the provisions of chapter 4 of the Civil Law (Wrongs) Act need to be applied, in addition to s 168, in determining whether or not the second defendant breached its duty of care: s 41. Therefore ss 42, 43 and 44 are relevant to assessing whether or not there has been a breach of the second defendant's duty of care and the test of causation in s 45 must be applied.
Section 168(1) provides, and Coles concedes, that Coles owed a duty to take all care that is reasonable in the circumstances to ensure that Ms Buljat did not suffer injury because of the state of the store.
So far as the various elements of s 43 are concerned, I make the following findings.
Counsel for Coles conceded, and I find, that the risk was foreseeable. It was the evidence of Ms Skinner that while she was the manager at the store there were incidents from time to time with persons falling on grapes. Accordingly, Coles knew of the risk that customers could slip on grapes in the store.
Counsel for Coles conceded, and I find, that the risk was not insignificant. Customers look at the items for sale, not at the floor. Any customer slipping and falling could hit the floor with some force and accordingly the risk is not insignificant.
Breach
The final issue is whether a reasonable person in the position of Coles failed to take reasonable precautions against the risk of harm.
Ms Buljat says in the Amended Statement of Claim that Coles:
2.Particulars of Claim against the Defendant
a. The injury loss and damage suffered by the Plaintiff was caused by the Defendant failing to take reasonable precautions under Part 4.2 of the CLW Act against a risk of harm being caused by the Plaintiff as a result of the Defendant breaching its duty of care to the Plaintiff.
Particulars of the Precautions Required by the Defendant under Part 4.2 of the CLW Act and the Breach of its Duty of Care to the Plaintiff
i.Failing to implement and or operate a system of periodic cleaning, or a reasonable system of periodic cleaning at the premises;
ii.Failing to implement and or operate a system of periodic cleaning, or a reasonable system of periodic cleaning, in the meat section of the premises;
iii. Failing to clean and remove the grape from the floor of the premises within a reasonable period of time, when the Defendant knew that customers, including the Plaintiff, were walking in the location of the grape and were at the risk of slipping and falling;
iv. Allowing or permitting food items to be dropped onto the floor of the premises when Defendant knew that this posed a risk of persons, including the Plaintiff, of slipping and falling;
v. Allowing or permitting grapes to be displayed and sold to customers in open bags when the Defendant knew customers in its stores within Australia regularly slipped and fell on grapes on the floor of its premises;
vi.Allowing or permitting grapes to be displayed and sold to customers in open bags at the premises when the Defendant knew customers at the premises regularly slipped and fell on grapes on the floor of its premises;
vii.Failing to provide matts or adequate matts [sic] in the meat section of the premises when the Defendant knew that produce, including grapes, was regularly dropped onto the floor in the meat section creating a risk to persons, including the Plaintiff, of slipping and falling.
viii.Failing to have adequate cleaning management or measures in place to ensure any slippery hazards, including grapes, were removed.
ix.Failing to take reasonable steps, in all of the circumstances, to minimise the risk of injury to the Plaintiff.
b. The injury loss and damage suffered by the Plaintiff was caused by the Defendant failing to take all reasonable care as an Occupier under s 168 of the CLW Act to ensure that the Plaintiff who was at the premises did not suffer an injury or damage.
Particulars of the Failure to Take All Reasonable Care by the Defendant as an Occupier under s 168 of the CLW Act
x.Failing to take all reasonable care to ensure that the Plaintiff who was at the premises did not suffer injury or damage from the state of the premises,
xi.Failing to take all reasonable care to inspect and clean the premises regularly to ensure that the Plaintiff who was in the premises did not slip on food items, including grapes, that were on the floor of the premises causing the Plaintiff to suffer injury or damage;
xii. Failing to take all reasonable care to ensure that the Plaintiff who was in the premises did not suffer an injury or damage from slipping on food items, including grapes, left on the floor of the premises;
xiii.The Plaintiff repeats paragraphs 2 a.(i) to 2 a.(ix) above.
Counsel for Ms Buljat submitted that if there is a finding that customers had been slipping on grapes because Coles allowed them to be dropped on to the floor, then there is no need to examine whether there was an adequate system of cleaning. I understand this to be a reference to Ms Buljat’s claims that Coles should either have sold grapes in closed packaging so that they could not be dropped or should have prevented customers from eating grapes as they walked through the store.
These submissions were not supported by any expert or other evidence. Coles has admitted that it sold grapes in open bags. As counsel for Coles pointed out, there may be health issues arising from keeping grapes in a closed bag. In addition, there was no evidence as to what type of packaging would prevent customers from being able to open the packet if they wanted to eat the grapes while they were in the store. Further, Ms Buljat did not clarify how Coles would be able to prevent customers from eating grapes while they were still in the store, other than suggesting that signs should have been erected.
The onus is on Ms Buljat to establish that these are available precautions which a reasonable person in the position of Coles would have taken. In the absence of evidence as to these matters, I am not persuaded that Ms Buljat has done so.
The claim that there should have been a mat in the area where the plaintiff fell was not pressed.
Next, counsel for Ms Buljat submitted that either Coles did not have an inspection and cleaning system in place or the system it did have in place was inadequate. In both written and oral submissions, counsel for Ms Buljat primarily relied on the decision of the High Court in Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182 (Strong) which held that Woolworths had been negligent in failing to implement a system for the periodic inspection and cleaning of the area where the plaintiff in that case had fallen. Counsel for Ms Buljat submitted that the effect of the decision was that, in this case, Coles was obliged to implement a system of periodic inspections of the floor which was documented.
Ms Buljat called two employees of Coles to give evidence. Ms Rixon, who was then the store manager, said that cleaners cleaned the store before and after hours. The store was not cleaned while it was open to customers.
Ms Rixon said 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 onto the floor.
Ms Skinner, who was the employee of Coles who saw Ms Buljat immediately after her fall, had worked at that store for 12 years. She said that the most common item that customers would slip on was grapes. 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 fresh produce section and drop them while eating them as they walked around the store or drop them when feeding them to their children.
Ms Skinner worked in the self-serve area from 2013 to 2019. She said that in that time they were always told by Coles to be aware of the floor and make sure things were not spilled onto the floor. Staff were shown a video including five to eight minutes on dealing with a spill. They were instructed to keep a lookout and to clean as you go.
This has been referred to as a “Clean as you Go” system in these proceedings.
As I have said, counsel for Ms Buljat submitted that the effect of the decision in Strong (supra) was that a reasonable cleaning system requires documented periodic inspections. The supermarket had been open for six hours and thirty-two minutes at the time of Ms Buljat’s fall during which there had been no system of inspection in place, only a request to employees to look out for spills and items on the floor. This was not, he said, a system of inspection.
I accept the submission made by counsel for the defendant that the effect of the submission by counsel for Ms Buljat was that Strong (supra) is essentially a directive from the High Court as to how cleaning should be undertaken in commercial premises in Australia. That clearly is incorrect. Many authorities have considered alternative systems, including Clean as you Go systems, without finding them insufficient on the sole ground of a failure to have a periodic and documented system of inspection.
Counsel for Ms Buljat relied on the decision in Prasad v Woolworths Limited [2017] NSWDC 79; 24 DCLR(NSW) 356 in which the Court found a Clean as you Go System was not a sufficient system of inspection and found for the plaintiff. However, in that case the Clean as you Go policy did not involve any obligation to look for hazards, only to act when they were observed. That of course is not the evidence in these proceedings.
In Fatma Abdel Razzak v Coles Supermarkets Australia Pty Ltd [2017] NSWDC 183, the Court found that Coles did have in place a cleaning procedure as all Coles employees had been trained in the Clean as you Go procedure. When employees were out on the store floor they not only attended to their main duties, but also observed the floor by visual spot checking and were conscientious so that, if they had seen something on the floor, they would have cleaned it up in accordance with their training and the Coles policy.
Counsel for Ms Buljat invited me to find that, in these proceedings, there was no evidence that staff had carried out their spot checks and cleaning duties conscientiously. However, the onus is on Ms Buljat. Two employees of Coles gave evidence. It was not suggested to either of them that staff had failed to comply with their training. Their evidence did not suggest any departure from the system by staff that called for an explanation by Coles as considered by the New South Wales Court of Appeal in Woolworths Ltd v McQuillan [2017] NSWCA 202 (McQuillan):
79Second, insofar as his Honour seems to have reversed the onus of proof and required Woolworths to prove what the Woolworths’ staff in the produce area “did in fact do on the day in respect of the cleaning system”, that was an error. The evidence of Mr Skantzos established the system that was in place, and that the system was in operation at the relevant time. The cross-examination of Mr Skantzos did not establish that departure from the system by the staff in the produce area that called for explanation by Woolworths.
In that case the Court also considered whether Woolworths was negligent because of a casual act of negligence by staff. The plaintiff in that case said that if staff had scanned the floor as they walked (as they should have), they would have had the area in their vision and would have seen and removed the grape. The Court held at [80]:
80Third, the proposition put to Mr Skantzos in cross-examination that it was possible that a grape up close to the base of one of the timber displays could be missed by the Woolworths staff, was consistent with Woolworths’ staff keeping a proper lookout. Further, it was not put to Mr Skantzos that a proper lookout by Woolworths’ staff should have identified the subject grape on the floor in the area behind the banana stand. As his Honour remarked, a grape just close to the display table could be missed in the busy activity in the store before opening. That is not a finding of a casual act of negligence.
Of course, that does not arise in these proceedings because there was no evidence as to what employees would or would not have been able to see or even precisely where the grape would have been. There are no photographs in evidence of the area where Ms Buljat fell. None of the witnesses were asked to draw a diagram of the area. The only evidence is to the effect that Ms Buljat fell near the meat department, between aisles one and two and in area through which bakery staff passed through in the mornings to stock shelves and some staff went to the break room. Ms Skinner did mention that a staff member had been stocking the meat fridge but there is no evidence as to where that person was standing in relation to the grape.
In any event, the Court held in McQuillan (supra) that it was not persuaded that there was a casual act of negligence by the staff in failing to observe a single grape on the floor in the area behind the banana stand when passing by that area to attend to other duties because keeping a proper lookout does not mean a perfect lookout. A visual scan may be impeded by a number of matters, such as physical objects, or the nature of the other duties being performed. That does not mean that staff have not kept a proper lookout. Relevantly to this issue was the evidence from Ms Skinner who said “I mean, you can't see a grape. A black grape, yes, but you can't see the green one and that was a green grape there that day.”
I decline to find that Ms Buljat has shown that Coles breached its duty of care to Ms Buljat.
Quantum
If I am wrong, and the defendant is liable in negligence to Ms Buljat, I would have made the following findings in relation to quantum.
Ms Buljat did injure her right shin in the fall. She went to a general practitioner on the same day. He recorded that she had landed on her right knee. He sent her for an X-ray of the right knee which was normal. He prescribed Panadeine Forte and told her to rest.
Ms Buljat returned to the practice two days later for a “check up” of her right knee and shin. The doctor noted some tenderness on the mid shaft of her tibia. He recommended a short course of Nurofen and rest.
On the following day, 26 September 2017, Ms Buljat attended at a different practice presenting with shin pain. On examination the doctor noted swelling and tenderness. He sent her for an ultrasound and X-ray of the right shin. The ultrasound disclosed a tiny subcutaneous haematoma and a tiny tear of the tibialis anterior muscle.
On 3 October 2017, Ms Buljat returned to the doctor complaining of ongoing pain and swelling of the lower limb and discussed the ultrasound.
On 16 October 2017, Ms Buljat attended a general practitioner complaining of ongoing pain in the right shin not settling with Panadeine Forte. She was prescribed Endone.
On 6 November 2017, Ms Buljat returned to the general practitioner complaining of persistent pain radiating to the knee and thigh and insomnia.
Ms Buljat went to the Canberra Hospital on 11 November 2017 with chest pain. As she had a prior history of a pulmonary embolism they did an angiogram which was negative.
Ms Buljat was referred for a further ultrasound of the right calf muscles on 15 November 2017. The tear had healed with without any visible scarring.
Ms Buljat returned to her general practitioner on 20 November 2017 complaining of pain localised to a varicose vein.
On 14 December 2017, Ms Buljat again complained to her general practitioner of ongoing pain.
On 3 January 2018, a CT scan of her right ankle was normal.
On 7 February 2018, she had a Doppler study of right leg which was normal.
On 9 February 2018, Ms Buljat went to the emergency department at the Canberra Hospital complaining of pain and swelling in her right calf for two days. Investigations disclosed a deep venous thrombosis (DVT) in the tibioperoneal vessels. A vascular surgeon, Dr Hardman, described the right leg as larger than the left leg. She was placed on medication and ultrasounds in 2018 showed no persistent DVT.
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.
Ms Buljat had experienced a spontaneous DVT and pulmonary embolus in 2015 which had resolved after she took anticoagulation medication for six months. After the 2018 DVT, she was again prescribed blood thinners and she has been told she will need to take them for the rest of her life. Ms Buljat is extremely concerned about having to take blood thinners, which she described as a “danger drug”, for life. She is “scared to death”, she said, about the possibility of a brain bleed, falling into a coma and being left in a vegetative state. She said she started to have anxiety and became depressed because she was not able to move freely without the pain and has not been able to sleep. On occasions, she has been paralysed by pain and has frequent panic attacks.
The medical issues in these proceedings are:
(a)whether the DVT in February 2018 is related to the injury sustained in the fall;
(b)whether her ongoing symptoms are related to the fall either by reason of a post thrombotic syndrome or a chronic pain disorder.
DVT in February 2018
Each party retained a vascular surgeon, Professor Myers for Ms Buljat and Dr Lane for Coles.
Dr Lane was of the view that the minor injury sustained in the fall at Coles had nothing to do with the subsequent clinical presentation with DVT in February 2018.
Initially, Professor Myers considered that, on the balance of probabilities, the DVT in February 2018 was most likely related to the fall at Coles. However, Professor Myers had been told that the February 2018 ultrasound showed that the DVT was in the right anterior tibial vein.
Professor Myers was subsequently told that the DVT had in fact occurred in the tibioperoneal trunk. He then participated in a joint report with Dr Lane in which:
(a)Professor Myers said it is possible but unlikely that the DVT identified in February 2018 is related to the fall.
(b)Dr Lane said it is possible but highly unlikely that the DVT identified in February 2018 is related to the fall.
In his earlier reports, Dr Lane explained his reasons for his opinion. There is an incidence of DVT seven to 10 days after extensive trauma as a response of the body to minimise bleeding. The ultrasounds on 26 September 2017 and 15 November 2017 did not show a thrombus. This means that, in terms of timing, the 2018 DVT bore no relationship to the fall. In addition, the minor muscle tear occurred in an anterior position while the DVT occurred in a posterior position, i.e., not at the site of the injury from the fall. The site of trauma is more likely to be associated with a DVT. The 2015 DVT was the probable predisposing factor as it would have caused venous wall damage.
In submissions, counsel for Ms Buljat accepted that the 10 February 2018 DVT was not related to the fall although he later added that he did not have instructions to make a formal admission.
I accept the opinion of the vascular surgeons and find that Ms Buljat has failed to show on the balance of probabilities that the 10 February 2018 DVT was related to her fall.
Post thrombotic syndrome
I have not been provided with an explanation from a doctor as to the features of this syndrome.
I understand from the medical evidence that it relates, in this case, to ongoing pain and swelling in the right leg as a consequence of a DVT.
Dr Eaton is an occupational physician retained by the solicitor for Ms Buljat. In his report dated 5 March 2021 he says:
In my opinion the 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.
I have already found that Ms Buljat has failed to show that the 10 February 2018 DVT was related to her fall. Dr Eaton’s conclusion is based on the assumption that the fall was likely to have significantly contributed to the development of the DVT.
Ms Buljat’s treating orthopaedic surgeon, Professor Smith, in December 2020 said that her complaints of swelling and pain in the right leg with some loss of sensation were consistent with a post-thrombotic type picture.
Counsel for Ms Buljat did not invite me to find that Ms Buljat has had or does have a post thrombotic syndrome arising out of injury sustained in the fall at Coles.
I decline to find that Ms Buljat shown that she has or had a post thrombotic syndrome caused by the fall at Coles.
Chronic pain syndrome
In his report, Dr Eaton also diagnosed a chronic pain syndrome. He said:
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 difficulties which reportedly continued to be disabling…
Ms Buljat has been unable to return to work and has not worked in her usual employment as a pathology collector since December 2019. She continues to report disabling right lower limb symptoms including chronic pain and swelling, post thrombotic syndrome and associated psychological and emotional difficulties. She has ongoing fear of further deep venous thrombosis and pulmonary embolus occurring. This has prevented her from resuming her usual employment.
During the hearing, counsel for Ms Buljat submitted that:
We say she is suffering a chronic pain disorder that is causally related to the fall, which we have been through, and we say she may be suffering vascular symptoms which are not related to the fall. We accept that. However, Ms Buljat not having any symptoms in the right lower leg in the years before the fall and then suffering pain consistently since with no break in the pain for that period supports a finding that the fall is related to the pain, or the pain is related to the fall.
This submission overlooks the paucity of medical evidence supporting the proposition that Ms Buljat has a chronic pain syndrome causally related to the accident and the medical evidence attributing her symptoms to other causes.
I am satisfied that, reading the whole of Dr Eaton’s report, he does not say that a brief episode of pain caused by the fall in 2017 is the cause of a chronic pain disorder from 2018 to today. His diagnosis assumes that Ms Buljat has, as a result of the fall, continued to suffer pain and swelling in the right leg and associated psychological and emotional difficulties. He has not expressed an opinion based on an assumption that the 2018 DVT, and thus any post thrombotic syndrome, is unrelated to the fall.
The psychiatrist retained by the solicitor for Ms Buljat, Dr Knox, has diagnosed various psychological and psychiatric disorders which he attributed to the 2018 DVT when he said in his supplementary report dated 24 January 2022:
I continue to hold the view that this woman’s poor mental health is the consequence of the DVT that followed the fall in the Coles store.
The psychiatrist retained by the solicitor for Coles, Dr Samuel, has explained in his report dated 23 February 2022 why any condition is not related to the fall:
If it is the case that neither the need for lifelong coagulation, 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 [Ms Buljat’s] beliefs.
I am satisfied that this analysis also applies to any chronic pain disorder from which Ms Buljat may be suffering.
I decline to find that Ms Buljat has or has had a chronic pain syndrome caused by or arising out of the fall at Coles.
Finding
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.
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:
(c)a post thrombotic syndrome arising out of the 2018 DVT; or
(d)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.
If I had found that Coles had breached its duty of care to Ms Buljat, I would have assessed damages as follows:
General damages
Being damages for pain and suffering from the fall on 23 September 2017 up to the date on which the tear in the muscle had healed, being 15 November 2017, I allow $15,000 plus interest.
Past domestic assistance
I accept that Ms Buljat would have had mobility issues until 15 November 2017. She was assisted by her husband who returned to Australia at the end of September 2017. I accept the level of care claimed is reasonable being three hours per week at $48.20 per hour. Allowing this for seven weeks is $1,012.20 plus interest.
Future domestic assistance
Nil.
Out of pocket expenses
I accept the calculation by Coles of the out of pocket expenses referable to the period 23 September to 15 November 2017 (which was not disputed by counsel for Ms Buljat) being $526.36.
Future out of pocket expenses
Nil.
Past economic loss
Ms Buljat does not make any claim for past economic loss to 15 November 2017: Nil.
Future economic loss
Nil.
Orders:
I make the following orders:
(i)Judgment for the defendant;
(ii)The plaintiff to pay the defendant’s costs;
(iii)Liberty to apply if any other costs orders are sought by either party.
| I certify that the preceding eighty-six [86] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Balla. Associate: Date: |
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