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…