Edmiston v Coles Myer Ltd

[2008] NSWDC 155

CITATION:	Edmiston v Coles Myer Ltd [2008] NSWDC 155
HEARING DATE(S):	21 July 2008
EX TEMPORE JUDGMENT DATE:	24 July 2008
JURISDICTION:	Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1 Verdict and judgment for the plaintiff in the sum of $86,728. 2 The defendant is to pay the plaintiff’s costs of the proceedings. 3 The exhibits may be returned.
CATCHWORDS:	TORT - boxes fell from supermarket shelf - assessment of damages - pre-existing degenerative conditions.
LEGISLATION CITED:	Civil Liability Act 2002
CASES CITED:	Reece v Reece (1994) 19 MVR 103
PARTIES:	Jan Edmiston (Plaintiff) Coles Myer Ltd (Defendant)
FILE NUMBER(S):	Newcastle 261/07
COUNSEL:	T R Edwards (Plaintiff) J A Jobson (Defendant)
SOLICITORS:	Bale Boshev Lawyers (Plaintiff) McCulloch & Buggy Solicitors (Defendant)

JUDGMENT

1 Jan Edmiston was doing her Christmas shopping in the Target store in Charlestown on 19 December 1995 when a number of boxes fell on her. The plaintiff described the boxes as being of considerable bulk and weight. After the incident a shop assistant drew her attention to the bent condition of the brackets on which the shelf rested and told her that the boxes contained room dividers. The plaintiff was not challenged on this evidence.

2 The plaintiff claimed that the defendant was responsible for the care and control of the premises upon which the Target store operated and that it was negligent in the way in which it allowed the staff at the store to stack the shelf from which the boxes fell. The defendant did not concede the issue of negligence, but called no evidence and put forward no submissions. It made no admissions on the pleadings.

3 It was more than apparent that care must be taken when the shelves of a major department store are stacked and that a foreseeable risk to patrons could reasonably be anticipated if the required level of care was not taken. In this case the only evidence available indicated that the shelf in question was overloaded to the point where its supporting brackets buckled under the weight of the goods contained in the boxes that fell on the plaintiff. There was therefore clear evidence of breach by the defendant of its duty of care to the plaintiff. I therefore make the following formal findings on liability.

1 The defendant had care and control of the premises on which the Target store operated.

2 The defendant failed to exercise an appropriate level of care in the stacking of the shelf from which the boxes fell onto the plaintiff.

3 This failure represented a breach of the defendant’s duty of care to the plaintiff.

4 The issue of the plaintiff’s damages was more complex.

5 The plaintiff stated that the boxes fell and struck the right side of her head and her right shoulder and knocked her glasses from her face causing her to fall to the ground. She said she saw stars. She was assisted by other patrons and store staff who removed the boxes and provided her with a chair. At the time she was feeling pain in her shoulder, neck and temple. She declined an offer to call an ambulance and commenced to drive home. She vomited twice in the course of driving home and decided instead to go immediately to her general practitioner, Dr Kesby. Treatment provided by Dr Kesby involved x-ray investigation and physiotherapy which was of limited relief. She was also provided with pain-killing medication.

6 The plaintiff complained of ongoing constant pain and a deteriorating condition that considerably limited her social, domestic and economic activities. At the time of the accident she was 64 years old. She is now 67. In October 2005 she retired from her position as a sales supervisor with David Jones. She was at that stage single following a divorce. She had three adult children. One daughter lived one street away in Woodberry, a Newcastle suburb.

7 The issues to be addressed in assessing damages were:

1 The extent to which this injury caused or contributed to the plaintiff’s current physical condition having regard to;

(a) the history of previous injury to her cervical spine,
(b) the history of injury to her right knee, and
(c) the plaintiff’s use of Panadeine Forte before and after the incident.

2 The effect of these factors on the assessment of her damages for non-economic loss, future income earning capacity, requirements for domestic care and medical expenses past and future.

ISSUE 1 – EXTENT OF INJURY

The cervical spine

8 Radiological investigation indicated that the plaintiff suffered from degenerative disease in her neck that pre-existed the incident of 19 December 2005. Degenerative changes were described in the MRI scan as moderate to severe. The defendant contended that these changes were the result of injuries suffered by the plaintiff in motor vehicle accidents in which she was involved in January 1992, March 1997 and in 2002 and that after the incident of December 2005 the plaintiff suffered short term aggravation of the condition resulting from these injuries.

9 Medical reports of Dr A V B Isaacs dated between 1992 and 1994 following the first accident referred to ongoing complaints of neck and back pain. Those reports indicated that the plaintiff consulted Dr Isaacs twice in 1992 and once in 1994 for medico-legal purposes and not consistently over that period for treatment as suggested by the defendant. It was apparent, however, from the reports that in 1994 the plaintiff continued to suffer from symptoms in her neck and low back. Dr Isaacs expressed the opinion that the plaintiff suffered soft tissue injuries, in the case of the cervical spine, without nerve root irritation. No other medical reports in relation to this injury were tendered by the defendant and I was therefore unaware of any opposing medical view to that of Dr Isaacs.

10 The only evidence in respect of the 1997 motor vehicle accident was one clinical note of her general practitioner at the time, Dr Balaz, of a complaint of a sore neck and headache. The only evidence in respect of the 2002 motor vehicle accident was one clinical note of her general practitioner at the time, Dr Balaz, recording whiplash to the neck.

11 It was in my view unsurprising that at the age of 64 the plaintiff’s cervical spine showed signs of degeneration. Further, based on her age and medical history, it can readily be accepted that the incident in December 2005 aggravated the already damaged condition of her cervical spine. The history indicated, however, that the plaintiff suffered only from very intermittent symptoms in her neck in contrast to the ongoing serious pain and discomfort of which she complained following the incident.

12 The defendant’s contention was based upon a report of Dr Burke who examined the plaintiff in October 2007. He related the plaintiff’s current symptoms to the pre-existing condition. His opinion was that the aggravation resulting from the incident affected the plaintiff for, at most, a few months after the accident. His opinion appeared to be based upon two factors. The first was his diagnosis of apparent multi-level degenerative cervical spondylitis. This diagnosis was based on a report of Dr Kesby, the plaintiff’s current general practitioner, dated 12 February 2007 in which she reported that an x-ray of December 2005

showed multiple areas of degenerative changes - there was mild kyphosis, segmental degenerative disc disease, degenerative changes in the intervertebral processes, some narrowing of the intervertebral foramina with degenerative facet joint disease.

13 This description was inconsistent with an opinion expressed by Dr Bookallil, a specialist in neurosurgery, in June 2007 based upon a CT scan indicating that there was minor degenerative disease in the plaintiff’s neck. The subsequent MRI scan suggested a greater degree of degeneration, but according to Dr Bookallil there was still no evidence of nerve pressure. Dr Burke made no reference to the CT or the MRI scans. I do not know, therefore, if he was supplied with copies of them.

14 The plaintiff stated that she was examined by Dr Bodel on behalf of the defendant on the same day as she was examined by Dr Burke. No report was tendered by the defendant from Dr Bodel. I infer that his opinion would not have assisted the defendant in deciding between the differing opinions of Dr Burke and Dr Bookallil.

15 The second aspect of Dr Burke’s opinion related to what he reported as inconsistencies that he observed in the course of his examination of the plaintiff. He said that some of the plaintiff’s symptoms could not be explained in rational anatomic terms, there were no corroborating physical signs, her movements varied between formal and informal examination and she made jerky movements that would have been avoided if symptoms were present.

16 Notwithstanding these comments and his diagnosis, Dr Burke stated that any symptoms of strain or aggravation caused by the accident would have resolved shortly after the accident and her current symptoms are due to underlying age related degenerative spondylitis and arthritis. Dr Burke therefore did not reject entirely the plaintiff’s complaints of symptoms.

17 Dr Bookallil accepted that the symptoms from which the plaintiff continued to complain were the result of the exacerbation of the pre-existing condition of her neck by the injury suffered in this incident.

The plaintiff’s knees

18 The plaintiff injured her right knee in a work related incident that occurred in March 2004. She was treated by Dr Laird with arthroscopy that confirmed that she suffered a tear in the medial meniscus and disclosed other age related changes. Her recovery from this procedure was complicated by the development of a deep vein thrombosis. Medical evidence indicated that the plaintiff continued to suffer symptoms in the right knee and that she later developed symptoms in her left knee for the treatment of which Dr Laird recommended a further arthroscopy.

19 The plaintiff denied that these symptoms significantly affected her activities. Specifically, she denied that the condition of her knees was the reason for her retirement in October 2005. She said that by this stage her right knee gave her occasional twinges, more if she was active. She said she was living fully independently, she had returned to ballroom dancing and to gardening with the assistance of her son who raised her garden beds so that she was no longer required to kneel.

20 Medical evidence suggested that the plaintiff was not entirely frank with the court on this aspect of her claim. Dr Sage reported in September 2005 a prognosis for increasing degenerative changes in the right knee and he considered an arthroscopy of the left knee would be appropriate. He noted specifically that the plaintiff wanted to continue working. He said it was reasonable that she continue as she then was on reduced hours, being five hours a day for three days a week. He noted that the plaintiff told him that she had given up dancing.

21 Dr Ghabrial in November 2005, shortly prior to the incident at the Target store, reported that the plaintiff had to give up work a week before because of pain and weakness in her right leg and the development of symptoms in her left knee. After examining the plaintiff he reported pain, weakness and some limitation of movement as well as developing osteoarthritis in the right knee. He also recommended further investigation of the condition of the left knee. In June 2006, seven months after the incident, Dr Ghabrial’s findings in respect of the right knee were unchanged and he reported a marked deterioration in the condition of the plaintiff’s left knee.

22 In July 2006 Dr Hollo reported that she had been informed by the plaintiff that the left knee was progressively worse since October 2005 and that the progressive nature of the left knee symptoms was a reason why she retired from work.

23 Dr Pillemer examined the plaintiff in August 2006 on behalf of the Workers Compensation Commission in respect of her right knee injury. It appeared that he was not informed of the plaintiff’s problems with her neck and shoulders. Rather, he recorded that the plaintiff told him that her general health, aside from the condition of her knees, was good. He reported that the plaintiff told him that there was no improvement in the right knee from the time of her original injury, that she had daily swelling and pain in the knee, that it caused her problems sleeping, that symptoms were aggravated by excessive standing or walking, she had difficulty ascending or descending stairs, which she avoided, she was unable to crouch or kneel and she had not been able to dance since the time of the injury. Dr Pillemer reported that the plaintiff did her housework with many rests and that she went shopping with her daughter and completed her shopping only with many rests.

24 Ms Bell, the occupational therapist, on the other hand, in February 2008 was informed that the plaintiff’s right knee recovered well and that it did not limit the plaintiff functionally. The plaintiff told Ms Bell that she had occasional aching in the right knee and slight aching in the left knee on rare occasions.

Medication

25 The plaintiff said that prior to the incident at the Target store she used analgesia to manage the pain in her knees, nominating Panadol, Panamax and some Celebrex. Since the incident she said she had resorted to Panadeine Forte, a much stronger pain killer, of which she took four to eight tablets a day. Dr Burke expressed concern at the extent to which she was relying on Panadeine Forte for pain relief. He suggested that she was addicted to this medication and that her condition would improve if she were weaned off the medication.

26 The plaintiff emphatically denied any addiction. The evidence, however, indicated that the plaintiff was not honest in stating that her regular use of Panadeine Forte commenced only after the Target incident. The clinical notes of Dr Balaz, the former general practitioner, record prescriptions issued on 12 September 2005 and 5 December 2005, a matter of weeks prior to the incident. The plaintiff appeared to consult both Dr Balaz and Dr Kesby as general practitioners in 2006 and for a period she obtained prescriptions for Panadeine Forte from both of these doctors. Dr Kesby continued to provide prescriptions on a regular basis. Her clinical notes indicated a dose of two at night to assist the plaintiff to sleep and the quantities prescribed were consistent with this regime.

27 It appeared, therefore, that the plaintiff was dishonest with the court in regard to medication in two respects, namely, on the question of whether she required pain killing medication of this strength prior to the incident and also the extent to which she was consuming Panadeine Forte since the incident.

28 My findings on the first issue are as follows:

1 The plaintiff was not completely frank with the court in certain aspects of her evidence.

2 This absence of frankness meant that I could not accept her evidence at face value.

3 While Dr Burke identified areas of inconsistency, he did not reject entirely the plaintiff’s complaints of symptoms related to the condition of her cervical spine.

4 Dr Bookallil accepted that those symptoms were the result of the injury suffered in this incident.

5 The defendant’s contention that the plaintiff’s condition was the inevitable result of degeneration in her cervical spine was not supported by the medical evidence. Clinical notes of Dr Balaz after 1994 made insignificant reference to neck or shoulder pain notwithstanding the incidents of 1997 and 2002. Dr Kesby, who treated the plaintiff after the incident, recorded in her report of February 2007 and in her subsequent clinical notes complaints of persistent, chronic neck pain with headaches.

6 In the light of this material I find that the plaintiff, as a result of the incident of 19 December 2005, suffered exacerbation of the degenerative condition of her cervical spine resulting in persistent, chronic symptoms that had not been present prior to the incident.

7 I also find that there was an element of exaggeration in the plaintiff’s presentation and in her claimed need for pain-killing medication.

ISSUE 2 - ASSESSMENT

Non-economic Loss

29 The plaintiff claimed that prior to the accident she was independent and active and that she was looking forward to pursuing a number of activities in her retirement that included travel, gardening, furniture restoration and dancing. She claimed that she could no longer undertake any of these tasks. She claimed that her capacity to drive was limited to short journeys only because of the limitation of the range of movement in her neck. The evidence concerning her gardening was consistent, namely, that prior to the incident she managed to continue to pursue this hobby with raised garden beds.

30 There were significant inconsistencies between the plaintiff’s evidence and the medical reports concerning the extent to which the condition of her knees affected her day to day activities. On the basis of the medical evidence I do not accept that she resumed dancing prior to the incident and I find that her other activities were almost certainly already curtailed by the condition of her knees. Taking this factor into account and taking into account the plaintiff’s age as required by the decision of Reece v Reece (1994) 19 MVR 103 I have assessed her non-economic loss at 25 per cent of a worst case and have awarded her the sum of $28,500.

Income Loss

31 I have already noted that at the time of her retirement the plaintiff was working 25 hours a week being 5 hours over 5 days. The plaintiff said she intended, because of financial necessity, to supplement her pension through casual work which she knew would be available at David Jones. The evidence was that she could earn up to $60 a week without affecting her pension rights. Although I do not accept the plaintiff’s statement that the condition of her knees did not influence her decision to retire, it was apparent from the medical evidence that casual work of this limited nature was within her capacity for a short period after retirement. I find that this limited income earning capacity could no longer be exercised because of the combined consequences of the condition of her knees and her cervical spine. I therefore allow the amount claimed by the plaintiff for income loss in the sum of $15,000.

Domestic Care

32 Section 15(2) of the Civil Liability Act 2002 provides that damages may be awarded for gratuitous attendant care services only if the need arose solely because of the injury to which the damages relate. Notwithstanding the plaintiff’s denials, the evidence established that she was limited in her capacity to undertake the heavier aspects of her housework, interior and exterior, and in her garden by her age and by the progressively deteriorating condition of her knees. I accept that the injury in this incident caused symptoms that imposed further limitations. Notwithstanding the evidence of the plaintiff’s daughter, I do not accept that those limitations extended to the need for gratuitous care for six hours a week for six months after December 2005. I have therefore made no allowance for past gratuitous care.

33 The defendant argued that I should make no allowance for future paid care in the absence of medical evidence to support the findings contained in the report of Ms Bell, the occupational therapist.

34 I see no reason not to accept the opinions of a qualified expert in occupational therapy. It is clear that the plaintiff will not be in a position to rely permanently upon her daughter to continue to provide services on a gratuitous basis. It is therefore reasonable that she be compensated for the commercial cost of providing for the needs arising from the injury suffered in this incident. I have allowed one half of the amount claimed. The reduction by one half has been made to take account of the needs generated by the progressive condition of the plaintiff’s knees and of the needs that will inevitably be required as the plaintiff advances in age. I have allowed on this head the sum of $37,092.

Out-of-pocket Expenses

35 Past out-of-pocket expenses have been agreed in the sum of $2,136. A claim is made for future medication and physiotherapy. The defendant argued that physiotherapy should not be allowed because it had not previously assisted the plaintiff. The proposition disregarded the evidence in Dr Kesby’s report that the plaintiff’s condition deteriorated when physiotherapy ceased because it was no longer funded. I have, however, reduced the amount claimed because I do not accept that the plaintiff’s requirement for Panadeine Forte was as great as stated. I have allowed the sum of $4,000 for future medical expenses.

36 In summary, the amounts allowed are as follows:

Non-economic loss $28,500.
Future income $15,000 loss.
Past care nil.
Future care $37,092.
Past out-of-pocket expenses $2136.
Future out-of-pocket expenses $4000.

37 The total of these sums is $86,728.

38 The orders which I make are as follows.

1 Verdict and judgment for the plaintiff in the sum of $86,728.

2 The defendant is to pay the plaintiff’s costs of the proceedings.

3 The exhibits may be returned.

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