Dowker v GB Distributors Pty Ltd - [2013] SASC 116

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
DOWKER v GB DISTRIBUTORS PTY LTD
[2013] SASC 116
Judgment of The Honourable Justice Anderson
18 July 2013
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS OF COURT - WHERE POINT NOT RAISED IN COURT BELOW
TORTS - NEGLIGENCE - PROOF OF NEGLIGENCE - WEIGHT AND CREDIBILITY OF EVIDENCE
The appellant appeals from a decision of a magistrate. The appellant sued the respondent for negligence, alleging that she suffered an injury when she slipped on a chip and fell in the respondent's premises.
The magistrate found the appellant had not established that the respondent was negligent. She was not satisfied the appellant slipped and sustained an injury to her back. The magistrate was not prepared to accept her evidence.
The issue on appeal is whether the appellant has established that the magistrate erred in respect to her findings and conclusions regarding the alleged incident.
Held: Appeal dismissed. It is not demonstrated the magistrate erred in her findings.

DOWKER v GB DISTRIBUTORS PTY LTD
[2013] SASC 116
Miscellaneous Appeal
ANDERSON J.
Introduction

This is an appeal from the decision of a magistrate. The appellant sued the respondent for negligence, alleging that she suffered an injury when she slipped on a chip and fell in the respondent’s premises on 27 March 2007. The respondent operated a store known as “Getta Bargain” at Mount Barker.
The magistrate found that the appellant had not established that the respondent was negligent. She was not satisfied that the appellant slipped and sustained an injury to her back as alleged.
The appellant represented herself at the trial and in the hearing of this appeal. The magistrate was not prepared to accept her evidence. Her appeal point is essentially that the magistrate erred in finding on the balance of probabilities that she had not proved her claim. She relied in her appeal in the main on CCTV footage which was taken at different points inside the respondent’s store. The footage did not demonstrate any slip by the appellant.
The extent of the CCTV coverage was explained by the person who installed the system in the respondent’s store. It was his evidence that the system would not be activated unless there was movement.
The magistrate made several adverse findings of credit against the appellant.
There is no dispute that the appellant made a complaint to the store on the day in question and two employees of the store made notes of what they recorded on that day.
The issue on this appeal is whether the appellant has established that the magistrate has erred in any respect in her findings and conclusions.
Background
On the 27 March 2007 the appellant was shopping at the respondent’s store. It is agreed between the parties the respondent had a duty of care to the appellant when she was in the shop that day.
During the trial the appellant gave evidence and was cross examined at length. Her evidence of what occurred that day was as follows. She was browsing along the shelves at the back wall display area of the shop, and felt her right foot slip forward. She said it happened in a microsecond. She said she tried to stop herself, and was hunched over. She stated she stood for a minute and felt pain in her right leg. The appellant stated she looked down and saw a slide mark on the floor, and also a squashed chip which was also stuck to the bottom of both of her shoes. She then went to the checkout to report what had happened, speaking to the assistant who then cleaned her left shoe. In cross examination she said the incident occurred about 1.00 pm or 1.25 pm. She claimed that the area where she was shown on the footage rubbing her left shoe on the floor was not where the slip occurred. An employee of the respondent confirmed that there was a chip on the floor.
Alleged injury
The appellant gave a large amount of evidence regarding the subsequent pain she suffered following the incident. Medical case notes relating to the damage present in her back following the alleged slip were produced at trial. These notes were made by various doctors and included x-ray reports and medical notes. Some of the reports set out a history of the appellant’s injuries, stating that she had suffered back pain lasting more than 12 years, which was exacerbated following the alleged slip at the respondent’s premises. The appellant submitted a report from a Dr Fazzalari, a chiropractor, which detailed the appellant’s symptoms as presented to him and his treatment of those symptoms over a number of visits. Dr Fazzalari stated in his report the symptoms were consistent with a fall of the nature the plaintiff described to him.
Respondent’s case at trial
The respondent denied in its claim that the appellant fell to the ground on 27 March 2007 within its premises, and submitted she did not sustain injury at the premises on that date. The respondent claims there was a sufficient inspection and cleaning process in place, and that it took reasonable care for the safety of its customers. It claimed any injuries complained of by the appellant arose from her pre-existing conditions and/or prior injuries. It was put to the appellant that she intentionally rubbed her left foot on the floor. It also put to her that she was making up her version of the events and that she traversed the area beforehand, then came back and rubbed her left foot into the chip. These allegations were all denied by the appellant.
The respondent submitted CCTV footage covering the time the appellant was in the store. It called evidence from Daniel Orr, who installed the system at the respondent’s store. Mr Orr stated there is no recording if there is no movement, and stated he did not leave out any parts of the footage which included the appellant. He did not see any footage of the appellant slipping or falling. He stated the footage cannot be tampered with as it is time stamped and the extracts were burnt to a disk.
There are 16 cameras in the store. Mr Orr specifically examined the footage in its entirety to see if there was any motion in the back aisles which would activate the recording. There was none. On the appellant’s version of events there must have been motion when she fell to the ground and got up again but nothing is recorded.
The defendant called the two shop assistants working that day to give evidence. One stated that she offered the appellant a chair and assistance but the appellant replied she did not need that. They both wrote down what happened and one stated she cleaned the lady’s shoe. She recalled the appellant saying she had irritated an old injury and had a broken bone in her foot. The other gave evidence there were no foreign substances on the floor when she had gone to lunch, and when she got back the appellant had reported the slip. The assistant went and looked and saw something on the floor which was trodden on and looked like a chip. Both looked at the CCTV footage and could not see a slip.
The defendant tendered a number of communications sent by the appellant to the respondent and its solicitors. These included statements by the appellant. They also tendered evidence of past injuries sustained by the appellant, including an insurance claim for injuries sustained in a car accident. The version she now gives is quite different.
The appellant admitted before the magistrate that she lied in a letter to the respondent’s solicitors. She stated in that letter (exhibit D8) that she fell down and lay on the floor for five minutes. She used the word “fall” again in another letter she wrote to the solicitors (exhibit D9).
Magistrate’s reasons
The magistrate noted that in the appellant’s statement of claim it is pleaded the appellant “fell to the ground sustaining injury (“the fall”)”. She considered the appellant had not amended her claim, but had given evidence she slipped and was able to right herself before landing on the ground. The magistrate found that based on the pleadings, the claim would fail, however she noted the plaintiff did not appreciate the significance of the pleadings and thus proceeded to consider the evidence as to whether there was an event leading to injury regardless of the pleadings.
The magistrate was satisfied that the appellant was in the store on the day of the alleged incident and that she spoke to the employees of the store. The magistrate viewed the CCTV footage and found there was no evidence of a fall or slip or any other event which could have lead to an injury to the appellant in the footage, including the times that the appellant was walking in the area where the chip debris was later located. She found there were no independent witnesses that corroborated the appellant’s claim, although she was satisfied what was written by one of the employees as a record of what happened on the day was what was reported to that employee by the appellant.
The magistrate found Mr Orr to be a reliable witness and was satisfied there was no break in recording activity in the aisles of the respondent’s premises on the day in question, or that there were any black spots in the CCTV footage where the alleged incident occurred. The magistrate found from the CCTV evidence that the area the appellant is seen wiping her shoe was the area the chip debris was later found by the shop assistant. The appellant now says the accident did not happen in that area but in an area not covered by the cameras.
Issues of credit
The magistrate found the appellant’s credit was significantly undermined by her correspondence to the respondent’s solicitors. She noted within one of these letters (exhibit D8) the appellant had written that she fell to the ground and lay there for up to five minutes, which she later admitted was not the case. She then stated she had slipped. The magistrate found, while the appellant apologised to the court for this statement and explained she was frustrated by the process, this explanation was not credible. She found this statement misrepresented the event the appellant claimed had caused her injury.
The magistrate found the appellant had a complex medical history and that she had sustained numerous injuries from a series of events, based upon the medical material before the court. She noted the appellant did not disclose other claims and injuries when completing a client history to those treating her, and found there was evidence the appellant had a pattern of not disclosing all relevant details when giving information, such as that of her injuries and accidents.
Based upon her findings above, the magistrate rejected the appellant’s evidence that there was a slip with her right foot moving forward in the respondent’s premises on the day in question. She was not satisfied on the balance of probabilities that the appellant slipped on the floor, nor that she sustained an injury as a consequence of an event at the premises on that day.
Appellant’s argument
When she made submissions in this appeal the appellant did not take issue with the magistrate’s summary of the evidence which she gave at the trial. She submits that, based on the CCTV footage, the magistrate should have inferred the appellant had a slip and that was why she was holding her back in the footage taken by one camera (camera 9). She submits when she is seen on camera 5 rubbing her foot on something, that this is not where she slipped. The appellant alleged that there was something on the floor there and she must have got something on her shoe there as well. The appellant submits the footage on camera 9 demonstrates there is either a blind spot or the camera angles don’t meet up between camera 5 and camera 9, as she goes out of the camera range before coming back into view. She also submitted the magistrate’s summary of her actions in the CCTV footage of camera 9 was incorrect, in that “she is looking at stock in the aisles”. The appellant submits she was actually bending over in pain, and did not continue shopping following the alleged incident.
In regard to the magistrate’s finding on the credit of the appellant, she submits the letter (exhibit D8) was written in haste, and that it was a misunderstanding in regards to the choice of the word “fell” rather than “slip”. The appellant submitted she retracted what she had written and regretted the correspondence. The appellant reiterated she can clearly recall slipping, feeling her right foot sliding and the strain going to her lower back. She submitted the respondent failed in their duty of care to their customers by only having one employee in the store during lunch. Finally the appellant submitted she was not dishonest in claiming her back condition had improved prior to the alleged incident.
Respondent’s argument
Mr Bell for the respondent first submitted the magistrate was correct in dismissing the appellant’s claim. The respondent reiterated its argument at trial, that there is no evidence of a fall or slip in the CCTV footage, and that the cameras overlapped to ensure there were no black spots in the footage. The respondent submits there is ample evidence to support the magistrate’s adverse finding as to the appellant’s credit, and submits this finding was correct.
The respondent submitted that the appellant’s argument on appeal was not the one submitted during the trial. It submitted that it had always been put to the court that the actual slip occurred just before the appellant was seen in the footage wiping her left foot on the floor. Mr Bell took the court to the trial transcript and read out the appellant’s evidence where she had described where and when the slip had occurred. He submitted she did not raise the argument in the trial that the actual slip had occurred two minutes later (than the footage shown on camera 5) on camera 9 in the spot she is now alleging it occurred. It submits this is a new argument raised for the first time on appeal and is further proof of her lack of candour.
The respondent further submitted it had never been put in the trial that there were two areas in the store where chip debris was present, as now suggested by the appellant. The respondent submits the appellant had claimed she had fallen until she became aware there was CCTV footage available of her time in the store, and subsequently changed her claim to that of a slip not recorded in the footage.
Consideration
I have seen the CCTV footage. There is no evidence from the footage recorded by cameras 1, 5 or 9 of the appellant slipping or falling. While the appellant alleges she slipped in a blind spot between cameras 5 and 9, on the evidence of Mr Orr, the cameras overlap so the entire store is covered. The magistrate accepted that evidence and I have no reason to interfere with that finding.
Further, the footage relied on by the appellant as showing her holding her back is equivocal and quite consistent with the magistrate’s impression of the appellant looking at stock on the shelves.
There are strong findings of credit adverse to the appellant. I would be reluctant to interfere with the magistrate’s finding on the issue of the appellant’s credit. Her Honour had the advantage of seeing and hearing the appellant and she was able to form an impression of the appellant. There were ample reasons for such a finding.
In my view the appellant has not demonstrated that the magistrate’s adverse finding on her credit should be interfered with. As the respondent submits, this is the first time that the argument the appellant has submitted in the appeal has been raised, either in correspondence or in her testimony. It is an entirely different argument from that put forward in the trial, as evidenced by the transcript citations referred to by Mr Bell.
Conclusion
It has not been demonstrated that the magistrate has erred. Her Honour has made detailed findings based on credit, all adverse to the appellant. Each finding has a sound factual basis.
The magistrate described what was seen by her on the CCTV footage. I agree with her description and with her analysis of the way in which the footage is recorded.
In particular there is no evidence of any slip or fall in the area where the appellant scraped her foot on the floor and where the chip was later found by an employee. The area where the chip was found is clearly shown in the footage at all times when the appellant was in that vicinity. It is clearly the area where the appellant was initially alleging that she fell.
I agree that the appellant’s description of her slip or fall in the correspondence to the respondent’s solicitors is a strong factor influencing an adverse finding of credit.
The appellant’s change of a version of events, even as late as the appeal, is another significant factor affecting her credit.
I agree that the appellant’s claim should be dismissed. I therefore dismiss the appeal.