| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : FUDERER -v- MCDONALD'S AUSTRALIA LIMITED [2003] WADC 69 CORAM : BLAXELL DCJ HEARD : 2-4 DECEMBER 2002, 20 FEBRUARY 2003 DELIVERED : 20 MARCH 2003 FILE NO/S : CIV 1500 of 2000 BETWEEN : MAGDALENA FUDERER Plaintiff
AND
MCDONALD'S AUSTRALIA LIMITED
Defendant
Catchwords: Negligence - Personal injuries sustained by plaintiff while using toilet in defendant's restaurant - Toilet door suddenly opening and striking plaintiff on the head as a result of allegedly faulty lock - Turns on own facts
Legislation: Occupiers Liability Act 1985 s 5
Result: Claim dismissed
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Representation:
Counsel:
Plaintiff : Mr D M Bruns
Defendant : Mr M W Schwikkard
Solicitors:
Plaintiff : Separovic & Associates
Defendant : Jackson McDonald
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
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1 BLAXELL DCJ: The plaintiff in this action claims damages for personal injuries sustained on 6 June 1999 while she was in a toilet cubicle at the defendant's restaurant in Belmont. It is alleged that the toilet door had a faulty lock and that it was opened suddenly with considerable force by another customer who attempted to enter the cubicle. The plaintiff claims that the edge of the door hit her on the head and propelled her towards the opposite wall of the cubicle where her shoulder struck a toilet reel holder.
2 The statement of claim pleads that the defendant was negligent (inter alia) in failing to adequately maintain the door lock, and that as a result the plaintiff suffered the following: "8.1 Shock and trauma; 8.2 Pain and tenderness of the left side of the head; 8.3 Swelling and bruising to the left side of the head; 8.4 Pain and tenderness to the cervical spine; 8.5 Pain and tenderness to the right shoulder; 8.6 Pain and tenderness to the right arm; 8.7 Bruising to the right arm; 8.8 Swelling and numbness to the right hand; 8.9 Disturbed sleep; 8.10 Dizziness; 8.11 Severe and frequent headaches; 8.12 Stress and anxiety; 8.13 The Plaintiff is restricted or unable to perform the following activities which aggravate the Plaintiff's symptoms: sitting, standing or walking for an extended period; attempting to lift or carry heavy objects; attempting to carry out a repetitive or prolonged physical activity; attempting to carry out domestic tasks including: vacuuming, ironing, washing clothes, hanging out clothes, washing floors."
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The plaintiff's evidence
3 The plaintiff is now 67 years of age, is of Hungarian ethnic origin but was born in Yugoslavia. She emigrated to Australia in 1970 and subsequently was employed for approximately 20 years as a shop assistant in the major shopping centre at Belmont. 4 The plaintiff ceased that employment in 1991 because her husband had suffered a stroke and she needed to care for him. However, she continued to visit the shopping centre frequently, and while there, was a regular customer at the defendant's restaurant. Consequently the plaintiff had cause to use the toilet in the defendant's restaurant on many occasions prior to the incident the subject of her claim. 5 According to the plaintiff during the period of 20 years prior to her accident, the lock in the female toilet at the defendant's restaurant was "maybe changed 10 times" because (as I understand her evidence) it had been broken on each occasion. For a number of weeks prior to her accident the locking mechanism was once again faulty in that the tongue that protruded when the handle was turned had "bended" back towards the person operating the lock from inside. The plaintiff also observed that paint had been scraped off the door jamb, and I understand her to say that the tongue must have bent as a result of striking that part of the surrounding door frame. 6 It is also the plaintiff's evidence that prior to her accident she had complained about the state of the lock to some of the defendant's staff serving behind the counter at the restaurant, and that one of them had undertaken to "tell the boss". In the meantime, and on occasions when the plaintiff was using the toilet while the lock was broken she would keep the cubicle door closed either by holding it with her hand or by placing her foot up against it. (It should be noted that the cubicle door was not in front of the plaintiff as she sat on the pedestal but was to her left with the opening edge nearest to her.) 7 On Sunday 6 June 1999 the plaintiff had occasion to use the toilet at the defendant's restaurant once again, and she noted that the lock was "exactly the same" as before. After sitting on the pedestal and completing what needed to be done, the plaintiff went to stand up and at the same time heard footsteps outside. The cubicle door then suddenly swung open striking her on the left side of the head above the ear. This in turn caused the plaintiff to fall against the wall on the opposite side of the cubicle where her right shoulder struck a large toilet reel holder. The plaintiff then collapsed to the floor and became unconscious.
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8 When the plaintiff regained consciousness she put her hand to the top left side of her head which felt warm and was bleeding. After washing the wound at a nearby basin she attended the front counter where she spoke to the manager (Mr Michael Chan) and told him of her accident. She also spoke to a female who asked her to fill out a form. According to the plaintiff, Mr Chan was "arrogant" towards her and did not offer any first aid so she "walked out".
9 It is also relevant to note the plaintiff's evidence that prior to her conversation with Mr Chan, blood had run from her wound down her face and on to the front left of her blouse. Although she had cleaned up her face there was still blood on her blouse while speaking to Mr Chan. She was also holding a handkerchief to her wound which was bleeding. 10 It is the plaintiff's evidence that two or three days after the accident she returned to the Belmont restaurant to provide Mr Chan with a medical report. While there Mr Chan asked her to accompany him to the toilet. He then showed her the lock which at that time was working properly because "he had banged it back". (I understand the plaintiff to mean by this that she assumed that Mr Chan had previously fixed the lock by straightening out the tongue.)
The evidence of other lay witnesses 11 The plaintiff's evidence that the toilet door lock was faulty at material times was corroborated by her friend, Anna Locsei. During 1999 Mrs Locsei operated a stall at a Sunday Market which was regularly conducted in the shopping centre carpark near the defendant's restaurant. Consequently she frequently used the female toilet and she confirmed that prior to the plaintiff's accident the cubicle lock was broken in that it was "bended and can't lock it proper". For this reason Mrs Locsei would hold the door closed with her leg and (as I understand her evidence) she recalls an incident when another patron opened the door while she was inside. 12 According to Mrs Locsei she spoke to a cleaner two or three weeks prior to the plaintiff's accident and asked him to fix the toilet lock. She was able to remember and describe the physical appearance of the cleaner including the fact that he was of Italian ethnic origin. 13 It is Mrs Locsei's evidence that at the time of the plaintiff's accident the lock had not been working for "very very long". However, on either the first or the second Sunday following the accident Mrs Locsei noted
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that the lock had been fixed in that "they had put a completely new lock in". 14 The first witness for the defendant was one of its former employees, Ms Felicia Williams, who worked at the Belmont restaurant between May 1998 and November 1999. On Sunday 6 June 1999 Ms Williams was the duty manager at the restaurant when the plaintiff approached the counter and complained about the accident. Because the plaintiff spoke in broken English, Ms Williams is unable to remember exactly what was said. However, according to Ms Williams: "… I remember her saying something about the lock in the toilet, that someone had walked in on her saying – pointing to the back of the head saying something about blood. Did you examine her head?---She did show it to me and I did look and I couldn't see anything. Was she wearing long hair or short hair?---No, it was just short hair. Could you see any signs of a wound?---No, not at that time; no, I couldn't." (T 5) 15 Ms Williams also did not see blood on any part of the plaintiff's body or "anywhere on her", but does not remember whether she looked at her blouse. 16 While the plaintiff remained at the counter, Ms Williams went to the female toilet to check the state of the lock. She did this by turning the handle to lock the door, and then turning the same back again to unlock and open it. Ms Williams could not find anything wrong with the lock and it "worked correctly" when she tried it. (During cross-examination Ms Williams did not accept that the tongue of the lock may have been bent.) 17 Ms Williams then returned to the counter and spoke again to the plaintiff. However, when Ms Williams went to fetch an accident report form so that details of the incident could be recorded, the plaintiff disappeared. According to Ms Williams the store manager Mr Chan was not present at any time during the discussions with the plaintiff, and the staff roster (Exhibit 8) confirms that he was off duty that day. It was also Ms Williams' evidence that she cannot recall any other occasion when a customer complained about a faulty lock in the female toilet.
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18 Mr Michael Chan has been employed by the defendant for 14 years, and is presently an operations consultant responsible for five restaurants including the Belmont restaurant. In 1999 he was the manager at Belmont. He recalls that he was not on duty on Sunday 6 June 1999, and the records that he kept (Exhibits 8A & B) confirm that fact. He remembers the plaintiff because she was a frequent customer at the Belmont restaurant, mostly on Sunday mornings.
19 According to Mr Chan, he first had contact with the plaintiff concerning the alleged accident on Thursday 10 June 1999. On that day the plaintiff attended the restaurant with a medical report and x-rays to complain about the accident the previous Sunday. The plaintiff pointed to the lefthand side of her head to indicate the site of the injury. When Mr Chan examined the plaintiff's scalp he saw a "red bump". 20 Mr Chan then completed an incident report (Exhibit 12) setting out the details of the accident as told to him by the plaintiff. He also went with the plaintiff to the female toilet and examined the lock. While there, Mr Chan locked the door from the inside and asked the plaintiff to push against it from the outside. When this was done the door did not open. Although Mr Chan could not recall whether the tongue in the lock was bent it is his evidence that the door "held firmly". 21 It is also Mr Chan's evidence that at all material times he was responsible for organising maintenance and repairs at the Belmont restaurant. He did not at any time arrange for the lock in the female toilet to be changed or repaired. He is also unaware of any previous or subsequent complaints about the lock in the female toilet, but there was one occasion when he arranged for the lock in the male toilet to be replaced. 22 Sonia Malynn has been employed by the defendant since 1994, and between 1997 and 2002 worked at the Belmont restaurant. She was present on Sunday 6 June 1999 when the plaintiff made her complaint, but had no discussions or dealings with her. It is Ms Malynn's evidence that within a week to a month after the plaintiff's accident the incident was discussed amongst some staff members including herself. Two or three of the staff then went into the female toilet to check the lock and Ms Malynn personally turned the latch and shook the door very hard to satisfy herself that it was indeed working. 23 Mr Albin Vulcen has worked as the cleaner/maintenance person at the defendant's Belmont restaurant for five or six years and it is part of his
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job to clean the toilets. It is his evidence that he never observed the lock in the female toilet to be broken and he has never requested that it be replaced. However, he did on one occasion tell the manager that the male toilet lock was broken and requested that it be replaced. 24 It is also Mr Vulcen's evidence that no one has ever complained to him about the lock in the female toilet being broken. However, Mr Vulcen works at the restaurant between Mondays and Fridays, and another cleaner has worked there on weekends. (That other cleaner, Mr Luca Giancola, is of Italian origin and was not called as a witness. The defendant has tendered an affidavit (Exhibit 16) seeking to explain it's failure to call Mr Giancola.) 25 Mr Patrick Taaffe is a self-employed sheet metal worker, who at all material times has held a contract with the defendant to carry out maintenance work at all of its metropolitan stores. Such maintenance work includes the replacement of broken locks if and when required. Mr Taaffe has kept a record of all work carried out for the defendant (Exhibit 15). This shows that he fitted a new latch to the men's toilet door at Belmont on 20 July 1999, but has not at any material time fitted a new lock to the female toilet door. However, according to Mr Taaffe, another firm (Associated Shopfitters) sometimes carries out maintenance for the defendant in lieu of himself. 26 Mr Douglas Bicknell is a senior chartered loss adjuster who was engaged by the defendant to investigate the plaintiff's claim. He carried out certain measurements within the cubicle of the female toilet at the Belmont restaurant, and these have been set out in a diagram (Exhibit 9). Mr Bicknell is approximately 140mm taller than the plaintiff. It is his evidence that when he sat in the normal position on the pedestal he found it was very difficult to keep his foot against the door. Furthermore when seated in this position, the edge of the toilet door swung through approximately 170mm from his knees. He could only bring the edge of the door into contact with his head by sitting on the very front edge of the pedestal and leaning forward in an almost horizontal position. 27 Mr Bicknell has also provided measurements of the toilet reel dispenser, which is made of moulded plastic and contains a large continuous roll of paper.
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The evidence as to the plaintiff's injuries and treatment
28 I have already referred to the plaintiff's evidence that immediately following her accident she found that she had a laceration to her scalp above her left ear. According to her the wound was of sufficient severity to cause blood to flow down the left side of her face and on to her blouse (as well as onto the basin while she was cleaning her face). It is also her evidence that after leaving the defendant's restaurant on 6 June 1999 she met Mrs Locsei outside and then went home "very slowly". Once home she took a "relaxing tablet" because of a severe headache and was unable to sleep that night. 29 The plaintiff's regular general practitioner for many years had been Dr Van Doort. However, Dr Van Doort was not available on Sunday 6 June 1999 or on the following day which was a public holiday. For this reason the plaintiff on 7 June 1999 consulted Dr Hans at the Southside Medical Service in Cannington. The relevant report (Exhibit 13A) states that the plaintiff told Dr Hans: 30 On 10 June 1999 the plaintiff returned to the Southside Medical Service and was seen by Dr M S Aviles. The plaintiff complained of having had a headache since the accident, but Dr Aviles' examination was unremarkable except for slight tenderness in the left parietal area. Dr Aviles advised the plaintiff to take Panadol when necessary and to return for review after a week. 31 Later on the same day the plaintiff attended at the defendant's restaurant where she spoke to Mr Chan. Although Mr Chan observed only a "red bump" on the plaintiff's scalp he completed the incident report (Exhibit 17) in accordance with the plaintiff's claim that she had sustained a "bruised shoulder and a cut to head".
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32 On 16 June 1999 the plaintiff returned to Dr Aviles who reported as follows:
"This time she said that she has sore right arm and right shoulder. She said that during the accident when the door hit her in the left side of her head she 'banged' the right side of her body against the wall and could have hurt her right arm. She said that her right arm is hurting, right hand swells and get numb. She can not sleep because of the headache and keeps on thinking about it. She also said that two days prior to seeing me, she was holding a glass and dropped it and broke because her right arm became numb. On examination she had bruising in the mid-half of right arm. There was no swelling noted although she said that it feels swollen. There was no sensory or motor deficit. She was very anxious that there might be something wrong with her arm and shoulder. I sent her for an X-ray. She returned on the 18th of June. The x-ray of the arm and shoulder did not show any fracture. There was however an early degenerative changes at the acromi-clavicular joint. I reassured her and advised to take analgesics." 33 There were six subsequent consultations by the plaintiff on either Dr Aviles or Dr Hans and the last of these was on 26 November 1999. The doctors did not vary the plaintiff's treatment during this period other than to refer her to an optometrist (in August 1999) to exclude the possibility of visual problems being the cause of the headaches. 34 I understand the evidence to be that from approximately December 1999 the plaintiff resumed attendances upon her regular general practitioner, Dr Van Doort. (During the course of the trial I was advised by the plaintiff's counsel that Dr Van Doort "might" be called, but he was not in fact called as a witness.) 35 In May 2000 Dr Van Doort referred the plaintiff to the consultant neurologist, Professor Mastaglia. Professor Mastaglia subsequently reported as follows: "Following the accident she experienced severe headache and neck pain, as well as pain in the right arm and shoulder which persisted for the next three to four months. She has since been
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left with severe recurrent bifrontal, temporal or generalised headaches, difficulty sleeping and episodes of dizziness and agitation. … On examination I found her to be a cooperative woman of stated age who was quite anxious and distressed by her problems. There was no obvious impairment of higher cognitive functions and cranial nerve functions were normal as was the remainder of the formal neurological examination. Her neck movements were mildly restricted and there was quite marked tenderness to pressure over the paracervical muscles on both sides of the neck and over both greater occipital nerves. I have reassured Mrs Fuderer that there is no indication that she suffered any serious intracranial or nerve injury as a result of the accident. Her headaches are probably muscle contraction headaches and it is possible that they are at least in part of cervical origin." 36 In January 2001 the plaintiff was examined by the rheumatologist, Dr J Edelman, at the request of her solicitors. The plaintiff reported similar symptoms to those she had outlined to Professor Mastaglia with the addition of right shoulder and arm pain. Dr Edelman noted that: "She seemed to be displaying depression and indeed anxiety depression. She even will not go out to the toilet at her own house because she is worried that someone is going to attack her or push the door open." 37 Upon examination Dr Edelman found that there was a non-anatomical decrease in pin prick sensation over the entire right upper limb. Although the plaintiff complained bitterly of pain on movement of the right shoulder, Dr Edelman was able to gain a reasonable range of movements. He diagnosed a "soft tissue problem with a severe anxiety neurosis" and recommended that the plaintiff be referred to a clinical psychologist. During cross-examination Dr Edelman acknowledged that possible causes of the plaintiff's anxiety state were her husband's stroke and a mastectomy that she had undergone. 38 In July 2001 the plaintiff was examined by an occupational physician, Dr Michael Bowles, at the request of the defendant's solicitors. Following his examination Dr Bowles reported as follows:
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"In my opinion Ms Fuderer's current complaints bear no relationship to her accident which she related was on either 5th or 6th May 1999. I would accept that Ms Fuderer lacerated her scalp and would have some associated bruising in this region along with bruising in the arm. I cannot reconcile two years of unremitting headaches and neck pain and stiffness with that episode. Further to that there were inconsistencies in the examination in the form of the non-anatomical sensory loss, the non-anatomical weakness, the non-anatomical distribution of her neck discomfort and the light touch pain response. Similarly, Ms Fuderer noted an inability to use the right arm for significant activity, however the measurements would suggest this still being used in preference to the left. … I believe that only through the bio-psychosocial model can one explain Ms Fuderer's current presentation to myself. In Ms Fuderer's example with the biological dimension was the bruising which resolved without any chronic damage. The psychosocial determinant include cultures which provide overwhelming information regarding the potential for chronic problems following injuries such as these. Medical systems also encourage inactivity and caution and more so litigation processes which involve protracted battles with insurance company's add to the fray. Patients are led to expect, amplify and attribute symptoms in a chronic fashion. Therefore Ms Fuderer's presentation is an example of a syndrome which is secondary to the cognition's of the patient plus those of society in general and the medical and legal professions in particular." 39 Finally, in November 2001 the plaintiff was examined by the orthopaedic surgeon, Mr Edibam, at the request of the defendant's solicitors. Mr Edibam subsequently reported as follows: "Mrs Fuderer continues to complain of ongoing pain following a minor incident wherein she was struck by a door on her head in June 1999. Although she has no significant injury as can be determined on clinical examination and investigations she has widespread symptomatology, which is difficult to explain
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considering the circumstances of the injury and the normality of her clinical findings. She may have some ongoing headaches and neck pain, which is not uncommon in the community at large. As far as her right shoulder symptoms are concerned, they are much more difficult to explain on the basis of any injury as I was unable to demonstrate any injury of significance."
Findings as to the accident 40 The fundamental issue of fact to be determined is whether or not the lock in the cubicle was faulty at the time of the incident on 6 June 1999. On the one hand there is the evidence of the plaintiff, corroborated by Mrs Locsei, that the tongue in the lock was bent and would not operate properly. On the other hand there is the evidence of Ms Williams (corroborated to a lesser extent by Messrs Chan, Vulcen, Taaffe and by Ms Malynn) that immediately after the incident the lock worked correctly and she could not find anything wrong with it. 41 Obviously, my finding on this issue must turn upon my impressions as to the relative credibility of each of the various witnesses. With regard to the plaintiff's credibility, although she impressed me as genuinely believing her version of events, there are a number of indications to show that her evidence is unreliable. In particular, her assertion that she was bleeding from a laceration to the scalp following the accident is contradicted by the very clear evidence to the contrary from Ms Williams. It is most unlikely that Ms Williams could be mistaken on this point given that she inspected the plaintiff's scalp when requested. Nor was it suggested on behalf of the plaintiff that she might be lying. Similarly, the plaintiff's evidence that the bleeding was sufficiently extensive to run down her face and on to her blouse and the basin, is inconsistent with her description of "slight bleeding" to Dr Hans the following day. Furthermore, Dr Hans observed only a "small red area", which obviously was not a laceration. 42 I am also unable to accept the plaintiff's evidence that Mr Chan was the person to whom she made her complaint immediately after the accident. Although she was adamant on this point, I consider that the defendant's records (Exhibit 8) and the evidence of Mr Chan and Ms Williams, clearly establish that he was not there.
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43 The plaintiff in fact became very upset during cross-examination when it was put to her that Mr Chan was not present on 6 June 1999, and she described that proposition as a "lie". She was similarly vehement and passionate about a number of less important issues such as the size of the cubicle and whether or not the toilet reel holder was made of plastic. Although due allowance needs to be made for the plaintiff's temperament and her lack of fluency in English, these episodes in the witness box tend to confirm my impression that her evidence was unreliable and lacking in objectivity.
44 Ms Williams on the other hand was a very calm witness, and her evidence impressed me as being credible and reliable. As a former employee of the defendant she had no apparent interest in the outcome of the proceedings, and I consider that she has given a patently objective account to the best of her recollection. 45 The remaining witnesses also differ as to the state of the toilet cubicle lock, and whether or not it was replaced by the defendant following the accident. In this regard Mrs Locsei asserts that the lock had been broken and was replaced, whereas Mr Chan and other of the defendant's witnesses have testified to the effect that it was not. 46 As to this issue I found the evidence of the defendant's witnesses (and in particular Ms Williams and Mr Chan) to be more persuasive than that of Mrs Locsei. I accept Mr Chan's evidence that he was responsible for organising all repairs and maintenance at the restaurant, and that the lock could not have been replaced without his knowledge. I consider that Mr Chan was an honest witness and that he is unlikely to be mistaken about the matter (given that it was drawn to his attention at the time of compiling the incident report). I also accept Mr Vulcen's evidence that he had never observed the lock in the female toilet to be broken, and that the only lock he could recall being replaced during his five or six years at the restaurant was the one on the male toilet door. Furthermore, Mr Bicknell's evidence as to the dimensions of the cubicle, renders it unlikely that the plaintiff and Mrs Locsei could have conveniently held the door closed with a leg as claimed. 47 In the end, although I am satisfied that the plaintiff sustained a fall in the toilet cubicle on 6 June 1999, the evidence does not persuade me that that accident occurred as a result of any fault in the lock on the cubicle door. The plaintiff bears the burden of proving negligence on the part of the defendant, and having failed to do so it follows that her claim must necessarily fail.
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Provisional assessment of damages
48 Although it is questionable whether it is necessary do so, I intend to provide a provisional assessment of damages. The evidence establishes that as a result of the incident in the cubicle on 6 June 1999 the plaintiff sustained a small contusion and mild swelling to the left parietal area of her scalp. 49 When the plaintiff attended upon Dr Hans the following day she complained of dizziness. At further consultations with Dr Aviles she complained (on 10 June) of headaches following the accident, and (on 16 June) of a sore right arm and shoulder, as well as swelling and numbness in the right hand. The only clinical sign observed by Dr Aviles at that last consultation was bruising to the mid right arm. 50 Subsequently the plaintiff developed increased symptoms of severe headache and neck pain, episodes of dizziness, and right shoulder and arm pain. When examined by specialists she was found to have a reasonable range of movements in the affected parts of the anatomy, but non-anatomical areas of sensory loss and weakness. 51 The consensus of expert opinion is that the plaintiff's array of symptoms is largely attributable to an anxiety neurosis and depression. Dr Edelman has acknowledged that there may be other factors in the plaintiff's background which have caused her anxiety state, and there is very scant evidence to link the plaintiff's present condition with the accident on 6 June 1999. Furthermore the plaintiff's regular general practitioner (Dr Van Doort) who could have provided independent evidence of the plaintiff's pre-accident condition, was not called as a witness. In my view the plaintiff has not established on the balance of probabilities that the accident on 6 June 1999 was a cause of her present symptoms. 52 Allowing for the fact and shock of the accident, and the minimal injuries that were sustained, I consider that a reasonable assessment of general damages on a provisional basis would be a sum of no more than $1,000. |