Gomez v Woolworths Group Limited - [2023] NSWDC 221

District Court

New South Wales

Medium Neutral Citation: Gomez v Woolworths Group Limited [2023] NSWDC 221
Hearing dates: 12-13 April 2023; 18 May 2023
Date of orders: 21 June 2023
Decision date: 21 June 2023
Jurisdiction: Civil
Before: Dicker SC DCJ
Decision:
1. The proceedings against the defendant are dismissed.
2. Verdict and judgment for the defendant against the plaintiff.
3. The plaintiff is to pay the defendant’s costs of the proceedings as agreed or assessed.
4. Leave is granted to either party to apply within 14 days to vary the costs order in (3) above.

Catchwords:
TORTS – negligence – slip and fall – Civil Liability Act 2002 (NSW) claim – alleged breach of duty of care by the defendant relating to the inspection and cleaning of the defendant’s supermarket store – whether breach of duty of care – whether any breach caused the plaintiff’s injuries – current disabilities of the plaintiff - damages

Legislation Cited:
Civil Liability (Non-Economic loss) Amendment Order 2022 (NSW)
Civil Liability Act 2002 (NSW)

Cases Cited:
Alat v Franklins Pty Ltd [2012] NSWDC 104
Argo Managing Agenc y Limited v Al Kammessy [2018] NSWCA 176
Avopiling Pty Ltd v Bosevski [2018] NSWCA 146
Buljat v Coles Supermarkets Australia Pty Ltd [2022] ACTCA 71
Chen by her tutor Huang v Kmart Australia Ltd [2023] NSWCA 96
Jackson v McDonald’s Australia Ltd [2014] NSWCA 162
Kocis v S E Dickens Pty Ltd [1998] 3 VR 408
Lloyd v Thornbury [2019] NSWCA 154
New South Wales v Moss [2000] NSWCA 133
Patrick Stevedores Operations (No 2) Pty Ltd v Hennessey [2015] NSWCA 253
Penrith City Council v Parks [2004] NSWCA 201
Strong v Woolworths Limited [2012] HCA 5; (2012) 246 CLR 182
Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375
Woolworths Ltd v McQuillan [2017] NSWCA 202

Category: Principal judgment
Parties: Martha Cecil Chacon Gomez (Plaintiff)
Woolworths Group Limited (Defendant)
Representation:
Counsel:
H Marshall SC and J Tryon (Plaintiff)
B Wilson (Defendant)
Solicitors:
Emanuel Refenes Solicitor (Plaintiff)
Meridian Lawyers (Defendant)

File Number(s): 2022/00077986
Publication restriction: No

JUDGMENT

In these proceedings, the plaintiff, Martha Cecil Chacon Gomez, brings a claim in negligence against the defendant, Woolworths Group Limited, in relation to personal injuries allegedly suffered by the plaintiff on 31 May 2021 in a slip and fall accident. The proceedings are brought by the plaintiff for modified common law damages under the Civil Liability Act 2002 (NSW) (“CLA”).
The plaintiff alleges, in general summary, that she descended escalators to the defendant’s supermarket in the MetCentre at 60 Margaret Street in Sydney at approximately 5:11pm on 31 May 2021. Soon after entering the defendant’s store, the plaintiff claims that she lost her footing when her left foot slipped on a piece of fruit, probably a piece of mango, which had been dropped by a customer entering the supermarket at 5:02pm. This slip caused the plaintiff to lose her balance and fall awkwardly on her right knee and then to the ground. The plaintiff was wearing sneakers at the time. It is not in dispute that ambulance officers were called, and the plaintiff was transferred to Sydney Hospital where imaging established a mildly comminuted, minimally displaced fracture through the plaintiff’s right patella. The plaintiff was treated conservatively by being placed in a Zimmer splint which she wore for a period of six weeks. She was also provided with crutches. The plaintiff attended the Fracture Clinic at Prince of Wales Hospital twice and, in due course, no longer needed to use the Zimmer splint and crutches after the first six weeks post-accident.

The issues

The issues in the case would appear to be as follows:

What duty of care was owed by the defendant to the plaintiff?

What is the risk of harm against which it is alleged the defendant ought to have taken reasonable precautions?

What are the reasonable precautions the defendant ought to have taken to address the risk of harm caused by items being dropped on the floor?

Whether the defendant failed to take any or all of the reasonable precautions found;

If the defendant failed to take any or all of those reasonable precautions, whether that failure caused the injury suffered by the plaintiff;

If liability is established against the defendant, whether the plaintiff was guilty of contributory negligence and, if so, the appropriate reduction to be applied;

What injuries and disabilities does the plaintiff have as a result of the accident?

What is the appropriate quantum of damages to be awarded under the various heads for the plaintiff’s injuries and continuing disabilities?

The pleadings

The plaintiff commenced proceedings by a Statement of Claim filed on 18 March 2022. In the Statement of Claim, the plaintiff pleads that she was born in October 1965 and that the defendant operated a supermarket on the lower ground floor at the MetCentre at 60 Margaret Street in Sydney, which was situated at the bottom of descending escalators which enabled customers to access the entrance to the supermarket. It is pleaded that on 31 May 2021 at about 5:02pm a customer entered the supermarket having utilised the escalators and dropped a piece of fruit approximately two to three metres from the bottom of the escalators, which was a piece of mango.
It is pleaded that on 31 May 2021 at approximately 5:11pm the plaintiff descended the escalators and lost her footing on the piece of fruit which caused her to lose her balance and fall awkwardly sustaining a frank injury to her right knee.
The plaintiff pleads in paragraph 12 of the Statement of Claim that prior to the fall, there had been no inspection of the entrance area since about 4:05pm on 31 May 2021 by any person employed or engaged by the defendant to undertake regular inspections of, or to clean, the front of store area. It is said that at about the time the fruit was dropped by the customer, there was heavy or substantial foot traffic in the front of store area owing to the time of day.
It is alleged that the accident was caused by the defendant’s failure to have in place any, or any effective, system of inspection and/or cleaning and to identify and remove objects such as the piece of fruit from remaining on the floor at the front of store area thereby creating a trip or slip hazard if left on the floor. The plaintiff alleges that the defendant failed to exercise reasonable care and to take reasonable and adequate precautions to prevent the risk of harm from the object.
Particulars of negligence are set out in paragraph 19 of the Statement of Claim and include exposing the plaintiff to a risk of harm and failing to take any, or any adequate, precautions for the safety of people in the position of the plaintiff including any, or any adequate, system of inspection of the floor at the front of store area and an appropriate system of cleaning thereby leading to a failure to identify and remove the piece of fruit from the floor at the front of store area. It is alleged that the breach of duty of care caused the plaintiff’s injuries and disabilities constituting negligence. Causation is expressly denied by the defendant.
In a Statement of Particulars filed on 18 March 2022, the plaintiff alleges an injury to her right knee including a fracture to the right knee patella and injury to the lateral meniscus leading to lower back pain. Various disabilities are particularised including pain, discomfort and restriction of movement to the right knee and lower back and difficulties with bending, stooping and squatting as well as walking for prolonged periods and ascending and descending stairs.
The plaintiff was employed part-time as a cleaner at the time of the accident earning approximately $450 net per week. The plaintiff makes a claim for non-economic loss, past loss of earnings, future loss of earning capacity, past out-of-pocket expenses and for future commercial domestic assistance.
In a Defence filed on 18 October 2022, the defendant admits that an unidentified customer entered the supermarket and dropped a piece of fruit at about 5:02pm on 31 May 2021 and also admits that the plaintiff fell at about 5:11pm on 31 May 2021. The defendant also pleads in paragraph 12 of the Defence that it took reasonable precautions in the circumstances in relation to looking out for spillages and cleaning. As stated above, in paragraph 19 the defendant denies causation. Contributory negligence is also pleaded but was not pursued in submissions.

The plaintiff’s tendered documents

The CCTV film

Admitted as Exhibit B in the proceedings was CCTV film taken by a camera at the entrance to the defendant’s store at the MetCentre for a period of about ten minutes before and after the accident. The film was shown in court. Another film lasting about two hours before and after the accident became Exhibit 2.
The film in Exhibit B was taken for the period commencing at around 5pm on Monday 31 May 2021. It shows numerous people exiting and entering the store via the escalators. Many of these customers were focused on looking at their mobile phones while entering and exiting the supermarket. The baskets which customers used to place goods in were located near the entrance to the store. On the floor at the bottom of the escalators soon after entering the store was a green floor sign advising customers to keep their distance from each other, arising, it appears, from the COVID-19 pandemic. The relevance of the green sign is that it provides a contrasting colour to the piece of fruit in question on which the plaintiff slipped.
The film shows that at about 5:02pm a female customer entered the store after descending the escalators and dropped a piece of yellow fruit, later identified as mango, on the floor surface of the green sign just in from the entrance to the store. Thereafter, many further customers entered the store and some placed their foot on the mango, squashing part of it and spreading the smear of the squashed fruit on the green sign on the floor.
The film shows that at 5:11pm the plaintiff descended the escalators and appeared to place her left foot on the precise area where the partly squashed mango was on the green floor sign. The plaintiff slipped and lost her balance, and fell down to the left. The precise mechanics of the fall and what part of the plaintiff’s body struck the ground first are not indicated. However, the film shows the plaintiff remaining on the floor. She is in due course assisted by customers and, it seems, staff members. Later, ambulance officers are called who take the plaintiff from the store on a New South Wales Ambulance stretcher. In general terms, the accident as depicted in the CCTV footage is consistent with the plaintiff’s oral evidence.

Further particulars letter

In a letter dated 24 October 2022 from the solicitors for the defendant, the following is stated in paragraph 2(e) relating to documents sought by a subpoena issued on behalf of the plaintiff:

“(e) Our client’s store adopted a “clean as you go” approach to inspection and cleaning during trading hours, supplemented by hourly Service 0 (reminder) calls over the public address system and a daily Sweep Log. In those circumstances, any documents falling into this category are not relevant to the issue in the proceedings...”

The plaintiff’s liability reports

The plaintiff tendered a court book which became Exhibit A in the proceedings.
Part of the court book was a report by a Mr Jason Wagstaffe dated 7 November 2022. Mr Wagstaffe, according to his report, is a highly qualified and experienced consulting engineer holding formal qualifications in general engineering, occupational health and safety and risk management. He has extensive experience in examining systems of work and workplaces and providing technical advice on risk control measures and treatments to improve the safety of workplaces, workers and other persons. On the basis of his report, he has clear expertise to provide opinions in relation to the safety of the defendant’s store at the material time. He was not required for cross-examination.
Mr Wagstaffe was retained by the solicitors for the plaintiff to provide an expert report in relation to the defendant’s system of inspection of the floor at the front of store area and the adequacy of its system of cleaning, including considering what reasonable actions or precautions the defendant could have taken to prevent the risk of harm pleaded. Various assumptions are made by Mr Wagstaffe in his report including, that prior to the fall, there had been no inspection of the entrance area since about 4:05pm on 31 May 2021 and that there was heavy or substantial foot traffic in the front of store area at the relevant time. Mr Wagstaffe conducted a view of the incident site on 20 October 2022 and had an interview with the plaintiff soon after via telephone, with the plaintiff’s son acting as an interpreter. He notes that the plaintiff attended the defendant’s supermarket after work on 31 May 2021 to purchase some groceries and that she had attended the supermarket previously but not on a regular basis.
Mr Wagstaffe sets out a description of the defendant’s supermarket located at the bottom of the escalators and records the plaintiff’s version of the accident. Mr Wagstaffe also undertook a detailed analysis of the defendant’s incident record which had been assigned the incident number EVE 804409. The incident record states that the time the area was last inspected by a team member before the incident was at 16:05 hours with the floor surface being said to be “clean and clear”. The incident report also notes that a team member was last in the area at 17.03 hours for the reason of leaving the store.
Mr Wagstaffe undertook a detailed review of the CCTV camera video in his report and described his impression of the defendant’s supermarket and the area where the incident occurred, which he describes as “relatively open”. Mr Wagstaffe includes with his report a number of coloured photographs which help in understanding the area and the persons involved in the incident with the assistance of Exhibit B, the film. He includes a number of screenshots of the plaintiff placing her foot on the piece of mango and her right knee starting to drop as she loses her balance and starts to slide forward (see pages 15-16).
In relation to the allegation that a team member had inspected the area at 4:05pm, Mr Wagstaffe notes that it was not possible to verify that inspection using the video as the CCTV camera film commenced at approximately 4:10pm.
Mr Wagstaffe spent some considerable time assessing in the report who may have been the employee leaving work (see paragraphs 42-49).
Mr Wagstaffe then set out a mechanism of a slip and fall and described the factors relevant to a normal gait cycle of a person and walking surface slip-resistance. In relation to the mechanism of the plaintiff’s slip and fall, a diagram is provided in paragraph 75 illustrating what occurred except that it shows the opposite leg being involved.
In part 11 of his 7 November 2022 report, Mr Wagstaffe considers whether there was any, or any adequate, system of inspection of the floor at the front of store area, where the plaintiff slipped on the object. He sets out his analysis of the defendant’s “clean as you go” approach to inspection and cleaning as well as its supplementary hourly calls over the public address system for employees to inspect the area where they are working to ensure there was no slip, trip and fall hazards in that area and to rectify the issue if there was. In paragraphs 80 to 86 and 89 to 92 of his report, Mr Wagstaffe stated as follows:

“80. It is my opinion that both systems are adequate cleaning and inspection systems for a supermarket, such as the Defendant’s supermarket. However, the Service Zero and the Clean as you go systems (the systems) are only effective if:
• The systems are supported and enforced by management.
• Employees are trained in the systems using competency-based training techniques.
• all employees perform their roles and responsibilities correctly.

81.  With respect to the Service Zero system of cleaning and inspection, it is unclear if an employee was assigned to the store entry area when a Service Zero was announced over the PA.
82.  Working with the assumption that the Defendant was utilising its own Service Zero cleaning and inspection system, then it would be reasonable to expect that at 4:00 PM, a Service Zero announcement would be made over the PA. It would be reasonable to expect that an employee, assigned to the store entry area, would inspect that area for slip, trip and fall hazards and rectify any identified issues. I am unable to verify if the 4:00 PM Service Zero announcement was made as the CCTV camera video commences at 4:10 PM.
83.  Continuing with the assumption that the Defendant was utilising its own Service Zero cleaning and inspection system, it would be reasonable to expect that at 5:00 PM, a Service Zero announcement would be made over the PA. Further, it would also be reasonable to expect that an employee, assigned to the store entry area, would inspect that area for slip, trip and fall hazards and rectify any identified issues.
84.  If it was the case that an employee was assigned to the store entry area for the purposes of Service Zero, then it would be reasonable to expect that the assigned individual would be visible in the CCTV camera video, at or around 5:00 PM. However, I was unable to identify any individual that appeared to be an employee of the Defendant in the area, at or around 5:00 PM.
85.  It is noted that the Defendant stated that an employee, who was in the process of leaving the store at approximately 4:05 PM, undertook an “inspection” of the store entry area, and even though the individual was leaving the store, reported that the store entry area was “clean and clear”.
86.  It is also noted that the Defendant stated that approximately 58 minutes later (5:03 Pm), an employee who was leaving the store, was the last employee to pass through the area prior to the Plaintiff’s incident.
…
89.  Based on the CCTV camera video evidence and the action outcome from the Defendant’s investigation into the Plaintiff’s incident, I am of the opinion that the Defendant did not comply with its own Service Zero policy/procedure, and as such the Service Zero system was not an effective or adequate system of cleaning and inspection at the time of the Plaintiff’s incident.
90.  In terms of the Clean as you go system, it is not clear if the Defendant had an expectation for all employees to continue with the clean as you go system until the employee has left the premises. That is to say, was there an expectation that an employee would continue with the Clean as you go process of floor surface inspection whilst the employee was leaving the supermarket.
91.  Working with the assumption that the Defendant did have an expectation that any employee that was moving through the supermarket for any purpose, including leaving the premises, would continue with the clean as you go floor surface inspection, then it would be reasonable to expect that the individual that was identified by the Defendant as leaving the supermarket at 5:03 PM, would have identified the floor surface contaminant (piece of mango) and removed it, or in the alternative ensured that it was dealt with before the individual left the premises.
92.  Further, continuing with the assumption that the Defendant had an expectation that any employee that was moving through the supermarket for any purpose, including leaving the premises, would continue with the clean as you go floor surface inspection, then it would be reasonable to expect that if any of the individuals identified in Figure 14, Figure 15, Figure 16, Figure 17 and Figure 18 were employees of the Defendant, those individuals would have identified the floor surface contaminant and removed it, or in the alternative ensured that it was dealt with before the individual left the premises.”

In paragraph 94, Mr Wagstaffe expresses the following opinion:

“94. Based on the CCTV camera •video evidence and the action outcome from the Defendant’s investigation into the Plaintiff’s incident, I am of the opinion that the Defendant did not comply with its own Clean as you go policy/procedure, and as such the Clean as you go system was not an effective or adequate system of cleaning and inspection at the time of the Plaintiff’s incident.”

In relation to the adequacy of the defendant’s system of cleaning of the floor at the front of store area where the plaintiff slipped on the object, Mr Wagstaffe expresses the opinion that if the defendant had access to floor surface cleaning and inspection systems then that would have reduced the risk if those systems were implemented and embedded being the “service zero” and “clean as you go” systems. If these were effectively implemented, Mr Wagstaffe expresses the opinion that the risk of the plaintiff suffering a slip and fall injury in the manner described would have been reduced so far as was reasonably practicable.
In conclusion, Mr Wagstaffe expresses the view that the environment did not provide a safe walking surface. He summarises the opinions in paragraphs 99-100 of his report as follows:

“99.  It is my opinion that the Defendant:
(a)  Failed to ensure that the store entry area walking surface remained free of slip and fall hazards.
(b)  Failed to ensure that it had in place an effective system of floor surface cleaning and inspections.
(c)  Failed to ensure that it effectively implemented its own floor surface cleaning and inspection systems, those being Service Zero and Clean as you go.

100. It is my opinion that had the Defendant ensured that it had in place an effective system of floor surface cleaning and inspection then the Plaintiff would not have suffered injury. Considering the cost associated with the implementation of such preventative measures was minor, it was something that the Defendant should have undertaken to prevent the Plaintiff’s injury.”

Mr Wagstaffe provided a supplementary report dated 5 December 2022. This was in the context of the defendant providing various documents relating to safety incidents and cleaning. He was also provided with the further particulars provided by the defendant’s solicitor in their 24 October 2022 letter referred to above. He noted that the defendant did not produce any store sweep/floor inspection logs for the supermarket generated on 31 May 2021. Mr Wagstaffe expressed the opinion that the documents provided reinforced his earlier opinion. He stated the following in paragraph 31 of his report on page 109 of Exhibit A:

“31. It is my opinion that, if it was the case that the documentation provided by the Defendant in response to the subpoena that was filled on 27 September 2022, was the relevant cleaning and inspection policy/procedures in place at the time of the Plaintiff’s incident, then the Defendant did not have an in place an effective system of floor surface cleaning and inspection at the time of the Plaintiff’s incident.”

The plaintiff’s medical records and medicolegal reports

The plaintiff tendered a number of medical reports including medico-legal reports and various hospital and consultation notes and reports.

Reports of Dr Guirgis

The plaintiff relied on three reports of Dr M Guirgis, Orthopaedic Surgeon.
In his first report dated 12 January 2022 following a consultation on 23 November 2021, Dr Guirgis sets out the plaintiff’s history of the circumstances of her injuries which is generally consistent with the plaintiff’s oral evidence. After the plaintiff had her Zimmer splint removed and ceased using crutches, she used an elastic knee support. X-rays showed that the fractured patella had united. She then undertook physiotherapy.
On presentation, the plaintiff continued to complain of joint pain with weakness, stiffness and clicking on moving her right knee. Dr Guirgis noted an inability for the plaintiff to kneel or squat and difficulty with steps. On examination, Dr Guirgis recorded a reduced right thigh, and effusion and tenderness over the bony attachments of the lateral collateral ligament of the right knee. There was also painful tender swelling over the outer border of the plaintiff’s right knee. Dr Guirgis ordered an MRI which confirmed that a mildly displaced fracture of the right patella had healed. A horizontal under surface tear involving the body and posterior horn of the medial meniscus was noted in the MRI. Dr Guirgis strongly recommended arthroscopic surgery and referral to a knee specialist. Future domestic assistance for heavier tasks was recommended. As at the date of the report, Dr Guirgis noted that the plaintiff had not been able to return to her employment and that it was in his view reasonable to conclude that her inability to work was due to her injuries. His physical findings were described by him as being consistent with the history of the injury.
On 25 November 2021, Dr Guirgis referred the plaintiff for an MRI noting persistent painful tender swelling along the outer border of the injured right knee.
The MRI report of the radiologist Dr S Ansari was tendered. The report noted a healed patella fracture with minor residual narrow signal hyperintensity at the fracture line with moderate tricompartmental joint space narrowing. The medial meniscus tear was noted.
In a report dated 25 January 2022, Dr Guirgis provided costings for the arthroscopy recommended by him and future conservative treatment for the plaintiff.

Report of Dr Szomor

The plaintiff’s general practitioner, Dr Jiminez, referred the plaintiff to Dr Z Szomor, orthopaedic surgeon, for review. Dr Szomor saw the plaintiff on 7 February 2022, a few months after the plaintiff had seen Dr Guirgis.
Dr Szomor noted the history of the accident and that the plaintiff had a number of sessions of physiotherapy and had used anti-inflammatory medication and analgesia.
The plaintiff is recorded as reporting no pain at rest but with some pain in the right knee with activities, although there was no sharp pain or locking episodes. The plaintiff reported difficulties with squatting, kneeling and with stairs and had also developed low back pain with activity soon after the Zimmer splint was removed. On presentation, Dr Szomor noted a slight antalgic gait with the plaintiff and that she was moderately overweight with moderate swelling in the knee noted. He expressed the opinion that the knee was stable following the patella fracture which had healed. In his view, the plaintiff’s complaints related to residual symptoms from the fracture but there were no symptoms originating from the horizontal meniscal tear. Contrary to Dr Guirgis, Dr Szomor expressed the opinion that no surgical intervention was recommended. He also advised the plaintiff to start low impact exercise based physiotherapy to improve her quadriceps and patella tracking and to avoid overload as a result of squatting, kneeling and stair climbing. He also expressed the opinion that the plaintiff was unable to perform her usual cleaning work involving extensive walking and stairs at the stage of his review.

Hospital documentation

In evidence were documents relating to the plaintiff’s hospital admission on 31 May 2021 and the consultations in the Prince of Wales Hospital Fracture Clinic.
These documents are generally consistent with the other evidence. At a consultation on 20 August 2021 at the Prince of Wales Hospital Fracture Clinic, Dr Solomon noted that the plaintiff no longer needed a splint as the fracture had united. He recommended physiotherapy.

Report of Mr Na

In evidence was a report of Mr K Na, physiotherapist, dated 29 April 2022. The plaintiff’s general practitioner, Dr Jiminez, had referred the plaintiff to Mr Na for physiotherapy to alleviate her symptoms of chronic knee pain as at February 2022 following the accident.
In a report dated 29 April 2022, Mr Na noted that the plaintiff had been discharged from the physiotherapy program reporting “reduced knee pain and improved knee flexion range of motion”. That was consistent with the plaintiff’s oral evidence. It was noted that the plaintiff had been performing various exercises to improve her lower body muscle strength and joint mobility including walking on a treadmill and performing squats and lunges. It was also noted that it was expected that the plaintiff would continue to perform her home physiotherapy program two to three days per week to minimise the risk of recurrent knee injury. Mr Na expressed the opinion that he was confident that the plaintiff would continue to improve should she be able to consistently perform her exercises at home. In her oral evidence the plaintiff confirmed that she was discharged by Mr Na and that she was performing home exercises as advised by Mr Na two to three times per week.

General practitioner notes

In evidence were extensive general practitioner notes for the plaintiff including from Dr Jiminez. In general terms, these are consistent with the plaintiff’s oral evidence. The notes record that on various occasions in consultations, different doctors gave medical certificates to the plaintiff.
Dr Nguyen, in a consultation on 4 September 2021, records that the plaintiff’s right patella fracture “is getting better and better” (Exhibit A, page 155). The plaintiff was to continue rehabilitation with physiotherapy. On 12 September 2021, Dr Nguyen recorded that on examination the plaintiff’s right knee had mild swelling and was tender. Backpain was noted in a consultation on 5 November 2021.
In April 2022 Dr Jiminez records the plaintiff having completed physiotherapy, feeling better and wanting to go back to work.

Other relevant documents

Included in Exhibit A was correspondence between the plaintiff’s solicitor and the plaintiff’s employer at the time of the accident being Dimeo Cleaning Services. The correspondence confirms that the plaintiff had not worked for Dimeo since 31 May 2021. It also recorded that the plaintiff commenced employment on 29 August 2016 with Dimeo as a part-time cleaner with a gross weekly wage of $499.40.
Also included was correspondence showing that the plaintiff’s employment was terminated with Dimeo from 30 June 2022. Following a report from Dr Jiminez and a meeting with the plaintiff, Dimeo stated that it was unable to offer any work to the plaintiff in light of the fact that she was unfit for her pre-injury role due to her knee condition and no other position was available. The letter dated 30 June 2022 stated as follows:

“We advise that we conducted a review of Dimeo’s operational requirements after the meeting on 27 June 2022. We regret to advise that we consider there is no position available with Dimeo for you to perform safely which would be consistent with the restrictions recommended by Dr Jiminez.”

The defendant’s documents

Part of Exhibit A were a number of documents relied on by the defendant.

The defendant’s medico-legal reports

Report of Dr Home

The defendant relied on a report of Dr Alan Home, occupational physician, dated 29 August 2022. The report was prepared following an assessment of the plaintiff by Dr Home also on 29 August 2022. After setting out a history of the accident and injury, Dr Home noted that the plaintiff had attended physiotherapy and had since continued with home-based exercise. He noted that the plaintiff continued to take analgesia Voltaren tablets up to five days per week and used a support above her knee.
The plaintiff’s current symptoms were listed as her experiencing constant knee pain with activity with intermittent swelling. The plaintiff stated that she was able to squat with pain but tended to avoid it, and also avoided kneeling over her right knee and exercised care with using stairs. The plaintiff was noted to having recommenced work. The plaintiff is recorded as experiencing low back pain after she began walking after the accident, but the pain subsequently resolved with no history of back pain over the previous six months. Dr Home recorded the plaintiff as undertaking all domestic chores including grocery shopping, cooking, dishwashing and bench-height cleaning as well as laundry tasks. Heavier chores could be completed at her own pace in a piecemeal fashion.
No prior medical history of relevance was recorded including with prior knee complaints. The plaintiff’s vocational history was set out including her return to work in June 2022 on a part-time basis. The plaintiff reported symptom exacerbation towards the end of her shift and working 20 hours per week.
The radiology tests were noted by Dr Home. A physical examination was undertaken revealing normal alignment of the knees, no visible deformity, no abnormality to inspection of the right knee, tenderness to palpation at the lateral tibio-femoral joint margin with mild patellofemoral crepitus (but which was symmetrical with the left knee). No joint effusion was noted. The plaintiff was able to fully crouch and rise from a deep crouching position and had an even gate.
Dr Home confirmed that according to the imaging reports the plaintiff’s fracture of the patella was minimally displaced and mildly comminuted. The subjective tenderness elicited to palpation on examination was regarded by Dr Home as establishing that it was probable that there was pain arising from the joint compartment. There were no reported symptoms arising from the identified degenerative medial meniscus tear.
Dr Home expressed the opinion that based on the objective findings at the assessment, any associated physical disability with the plaintiff was of mild severity and that she had regained good strength with no evident disparity in the circumference of her thighs. There remained lateral joint tenderness. The examination findings were in Dr Home’s opinion such as not to exclude mild disability but precluded any moderate or severe disability. The use of analgesia by the plaintiff was reasonable and necessary according to Dr Home. A view was expressed by Dr Home that there was no requirement for further treatment beyond the use of analgesic medications. In particular, in his view there was no current indication for surgery despite the opinion of Dr Guirgis. Dr Home agreed with the opinion of Dr Szomor that such surgery was not required. Dr Homes stated:

“In the long term, there is a small risk that the plaintiff may require a resurfacing procedure at the patellofemoral joint should she go on to develop symptomatic patellofemoral joint osteoarthritis as a consequence of the patellar fracture. There is also a remote chance that she may require a knee joint replacement although the patellofemoral joint is not the major weight bearing joint of the knee. There was no finding that the accident would accelerate the progression of underlying degenerative changes in the joint compartment. Prescribed medication and further medical consent consultations were presently not required.”

Dr Home was of the view that the plaintiff was able to perform personal care tasks and domestic duties and household maintenance. The plaintiff was not assessed as requiring assistance with domestic activities and he did not expect the plaintiff’s need for domestic assistance would change in the short to medium term. In the longer term should the plaintiff develop post-traumatic degenerative change in the patellofemoral joint, the plaintiff may well require assistance with heavier domestic chores for one hour per week commencing 10 years from the date of the report.
Dr Home was of the view that the plaintiff had demonstrated the capacity to resume at least part-time work as a commercial cleaner but that she would be better suited to work as a cleaning supervisor or an office cleaner where the manual handing requirements were less arduous. She would be able to work full-time in that capacity but only part-time in her current job, taking into account her ongoing subjective complaints.

Report of Dr Shatwell

The defendant relied on a medico-legal report of Dr M Shatwell, Orthopaedic Surgeon, dated 19 October 2022.
Dr Shatwell set out in his report a detailed history including the plaintiff’s accident, treatment, consideration by her general practitioner and Dr Szomor and the plaintiff’s various complaints. The findings of Dr Szomor were set out as were the opinions of Dr Guirgis.
Dr Shatwell noted that the plaintiff worked part-time for four and a half hours per day, five days per week at International Oceanic Solutions doing hospital cleaning. It was noted that the plaintiff developed pain in her duties, took Voltaren Rapid and had not received any recent physiotherapy. It was also noted that the plaintiff could shop for up to an hour and she was able to manage all of her household chores but had difficulty crouching and kneeling to clean the bathroom and to reach lower cupboards.
Dr Shatwell recorded that he examined the plaintiff on 19 October 2022 and that she walked with a normal gait and stood with a normal spinal posture. He noted that the plaintiff was able to squat with pain reported in the right knee but was able to stand and hop on either leg. No significant patellofemoral crepitus was noted in either knee joint nor were there any effusions present on examination. All movements were conducted in an active manner.
Dr Shatwell was of the view that the injury sustained was consistent with the alleged mechanism of injury and that the treatment received had been appropriate and had restored the plaintiff to near-normal right knee function. He was of the view that the plaintiff’s condition was likely to improve over the next year or so following his examination, though there was a chance of long-term deterioration of function in the patellofemoral joint due to the direct injury to the articular surfaces caused by the accident. Dr Shatwell was of the view that the plaintiff’s use of Voltaren Rapid on a daily basis was reasonable although he hoped the plaintiff could cease using it in the next few months as it was unlikely to be providing any significant benefit and the side effects could lead to other problems. The use of an elasticated knee brace was regarded as reasonable although Dr Shatwell would advise against using it in the long term.
Dr Shatwell agreed with Dr Szomor that surgery would be of no benefit.
Dr Shatwell was of the view that the plaintiff was able to manage her preinjury activities of daily living except for prolonged periods of squatting and kneeling which would be uncomfortable because of her right knee. He was of the view that the plaintiff was fit for all normal cleaning, laundry, grocery shopping and household tasks apart from squatting, kneeling, crouching for prolonged periods or stair climbing. He expected gradual improvement in the function with the passage of time but there may be long-term deterioration due to the development of post-traumatic patellofemoral osteoarthritis.
Opinions were expressed in relation to past domestic assistance but this claim was not pressed at the hearing. Dr Shatwell was of the view that the plaintiff would not require assistance with domestic activities after the three months period following the accident in question and that this need for domestic assistance would not change in the foreseeable future unless within 10 to 20 years the plaintiff possibly developed patellofemoral arthritis in the right knee. He was of the view that with the assistance of modern household appliances it was unlikely the plaintiff would require any significant domestic assistance up to her retirement age as a result of the type of patellar fracture she sustained. Dr Shatwell does not explain what he means by “significant domestic assistance”. He expressed the opinion that the plaintiff was now fit for her previous work except with respect to prolonged crouching, kneeling or squatting which she should avoid for the sake of her knees. He did not consider that she had been vocationally impeded as a result of the injury and active movements of the knee were also not affected by the injury except for climbing stairs. He was of the view that there was no evidence in the materials presented to him of any injury sustained to the lumbar spine.

The defendant’s incident report

There has already been some discussion in relation to the Woolworths’ incident report EVE – 804409 in the context of Mr Wagstaffe’s report. In the tender bundle which became Exhibit A an unredacted copy of the incident report is included. The report notes that the store entry area was last inspected by a team member at 16:05 hours who was a Haydee Pedron, the Customer Service Team Manager. The incident report indicated that the last time a team member was in the area was at 17:03 hours just after the piece of fruit had been dropped and the team member was identified as Mr J Cheong, Assistant Store Manager who was described as “leaving the store”. At Exhibit A page 187 it is indicated that Ms Pedron’s line manager was Mr Cheong. The actions following the accident were stated as follows:

“Store sweep/Floor inspection log – Team talk for all team on importance of regular floor checks to prevent slips and trips … Service Zero – Afternoon and Evening ACO attendant to use PA to announce Service Zero on the hour every hour. Customer Manager to write and implement team talk and follow-up completion. Customer manager to validate implementation with ASM before signing action as complete.”

The plaintiff’s oral evidence

The plaintiff, Ms Gomez, gave oral evidence in the proceedings. Ms Gomez said that she lived in Belmore in Sydney in a three-bedroom apartment which she shared with her two sons who were both adults. She later gave evidence that the apartment had two bathrooms which was relevant to her continuing problems with her knee.
The plaintiff stated that she was born in Colombia in South America in October 1965 and migrated with her family to Spain when she was six years old. She completed an education only to primary school level and has no other formal qualifications. The plaintiff gave evidence that while she could read and write in Spanish she could not read and write in English and could not speak other than a few words in English: T17.7.
After completing her schooling to primary school level in Spain, the plaintiff had various jobs in Spain including babysitting, cleaning and waitressing over many years. In May 2012 the plaintiff immigrated to Australia with her former husband and her two sons who are currently 23 and 19. The plaintiff separated from her husband in 2014. The plaintiff does not drive. Her eldest son, Eric, who works, assists her with the bills, driving where necessary and in some household tasks. The plaintiff lives in rented premises.
When the plaintiff arrived in Australia, she secured a cleaning job in Blacktown for five hours per day before moving to a job on a construction site as a cleaner and labourer fulltime.
In August 2016, the plaintiff secured a job with a company called Dimeo as a part-time cleaner working 20 hours per week. She continued in this employment until the time of her accident: T18.35-.41. The job with Dimeo involved a lot of walking, bending down and squatting during the work shift. The plaintiff gave evidence that she had given some thought to working fulltime for Dimeo and they had raised with her working fulltime in kitchen work for eight hours a day but no job materialised because of COVID-19. Later, in cross-examination, the plaintiff said she was not given a formal offer for fulltime work: T19.17-.21. The plaintiff gave evidence that her health was good before May 2021: T19.25.
The plaintiff gave evidence that before the accident she enjoyed exercise including walking, going to the gym, swimming and particularly Latin dancing which she engaged in regularly at the Spanish Club. The plaintiff gave considerable evidence that she missed her dancing which she liked and was good at and could no longer do in the light of her injuries: T19.29-.45.
The plaintiff gave evidence in relation to the accident. She stated that on the day of the accident, 31 May 2021, she finished work in the city doing cleaning and proceeded to the Woolworths shop at the MetCentre to get a few grocery items before going home. She went down the escalator at 5:11pm: T20.3. The plaintiff stated that when she walked into the Woolworths store at the MetCentre, she slipped but did not see what she slipped on “because it was very fast”: T20.37. The plaintiff confirmed that the video in Exhibit B showed her going into the Woolworths store and slipping. In response to a question whether she injured herself the plaintiff said “my knee only”: T20.44. She clarified that this was her right knee and that it was very painful and she was unable to stand up.
The plaintiff indicated that staff at Woolworths called an ambulance and she was taken to the Sydney Hospital Emergency Department where an x-ray occurred and a splint was placed on her right leg so that she could not move her knee. She was also given crutches and Endone for pain. She said that it assisted with the pain. The plaintiff gave evidence that she wore the splint on her leg every day for two months and it was very uncomfortable. The plaintiff also indicated that her back also used to hurt from using the crutches she was provided: T22.20. After returning home, the plaintiff gave evidence that she attended the Prince of Wales Hospital Fracture Clinic on two occasions. On the second occasion, 20 August 2021, her splint was take taken off and she was given an elastic knee support which assisted. This was less painful to wear and it made the plaintiff feel safer to work.
The plaintiff gave evidence that she was limping after the splint was removed and she was referred to physiotherapy which she attended which initially provided little assistance. The plaintiff gave evidence that her general practitioner recommended further physiotherapy and she had additional sessions with a Mr Na. The plaintiff also saw Dr Szomor, Orthopaedic Surgeon, in early 2022. The plaintiff gave evidence that she did not have any other medical treatment since the last time she had sessions of physiotherapy in April 2022.
In April 2022, the plaintiff told her employer, Dimeo, that she wanted to return to work but, following a consultation with her general practitioner Dr Jiminez, her employer said that they did not have a job suitable to her with her knee injury: T23.47-T24.6. At that time the plaintiff described the condition of her right knee as “bad” because it was painful and she was limping, but she had to go back to work for financial reasons. This was despite the fact that the work at Dimeo was quite heavy and involved going downstairs and walking, bending and squatting.
The plaintiff stated that in the 10 months since the accident she had put on weight and was unable to perform some tasks and felt “sad” because of her limitations and her inability to engage in previous social activities such as dancing: T25.
The plaintiff gave evidence that when she was working for Dimeo she was being paid $900 net per fortnight: T25.35. At about this time the plaintiff obtained a job as a cleaner in a Gordon hospital with Oceanic International Solutions working four and a half hours per day for five days at a salary of $500 net per week: T26.15. The plaintiff’s current duties involve cleaning private rooms on a floor including vacuuming and deep cleaning the bathrooms and toilet as well as cleaning the common areas such as walkways. Bending and squatting and standing for long periods are required: T26. The plaintiff gave evidence that her work was easier at her job with Dimeo than her current position. The plaintiff said that undertaking this work makes her feel tired, “bad”, with a lot of pain in her knee. She says she takes Voltaren medication to assist with the pain each day which costs between eight and nine dollars for a packet which lasts her about two weeks: T27.17-.41. The plaintiff gave evidence of needing to travel three hours each day on public transport to and from her work.
The plaintiff then gave evidence in relation to undertaking domestic activities after the accident. The plaintiff said that initially she could not undertake domestic duties while she was on crutches. She was assisted by her son, Eric. After her splint was removed and she was no longer using crutches she was able to do more around the house: T28.45. Presently she still had pain in her knee: T28.49. The plaintiff described her pain as being as if she was “disabled” with an inability to move her knee and a further inability to stand up for a long time: T29.2. The plaintiff gave evidence that she can no longer undertake long walks and walking for more than 10 to 15 minutes causes pain in her knee T29.18. Previously she used to walk to the shops to buy her groceries and now she is not able to do that and her son assists her. The plaintiff stated that her son takes her to doctors’ appointments and treatment consultations as well as to church on a weekly basis. The plaintiff said that she has difficulty walking up and down stairs at present and needs to do it quite slowly. She said she undertakes exercises at home to assist her as recommended by her physiotherapist. These exercises help her: T30.44. The plaintiff also indicated that when she walks a lot she begins to limp and her back starts to hurt: T31.2-.13.
Although initially the plaintiff gave evidence that she would have liked to have retired (T31.17), she said that she got bored at home and before the accident would have worked as long as she could have. She has Spanish-speaking friends with whom she works.
The plaintiff confirmed that in seeing the various specialists, Dr Guirgis, Dr Home, and Professor Shatwell, she told them the truth about her condition as she felt it at the time: T31.42.
In answer to a question from the Court, the plaintiff said she had given some thought to getting an easier cleaning job like she had at Dimeo but had not taken any steps because she was used to the job and felt that she should not leave it: T32.10.
In cross-examination, the plaintiff was asked a number of questions about her English ability. She agreed that she had been provided government classes in English with the last one she attended being in 2018. She did not have any friends to practice English with, but she could talk to her children sometimes using some words of English. Her manager in her current job spoke Spanish but she agreed that she did deal with some people in her job who only spoke English: T33.8.
The plaintiff conceded in cross-examination that she could catch public transport to church and to the shops to obtain “a few things”. She also agreed that she could do shopping for grocery items and for clothes: T34. In relation to meeting up with friends, the plaintiff gave evidence that she did not travel to meet up with friends because she got tired and had to sit down. She said that because of her knee she preferred not to go: T35.9-.29.
The plaintiff was then asked a number of questions about her present job. She confirmed that she worked part-time in her current job and was a permanent employee: T36.33. The plaintiff also confirmed, frankly, that despite the pain in her right knee she was able to do the job because she had no choice: T36.36. The plaintiff gave evidence that she would like to have a lighter job than her present job but she regarded her opportunities as limited because of her inability to speak English. She said she could not undertake office cleaning full-time: T37.2; T37.20. The plaintiff agreed that she would like to undertake more English classes and that she could work as a nanny for a Spanish speaking family but would only be able to work on a part-time basis: T37.47. The plaintiff said that she would also be able to undertake work in a factory doing process tasks: T38.1. She responded with the word “maybe” to the suggestion that she could do factory work on a fulltime basis: T38.5.
The plaintiff was asked some questions about her physiotherapy with Mr Na and agreed that she was discharged from his care in April 2022 and then shortly thereafter approached Dimeo to ask about returning to work. The plaintiff accepted that she approached Dimeo in May 2022 to ask for her job back because she believed that she was physically capable of undertaking the role: T38.30. The plaintiff accepted that she asked Dr Jiminez to certify her as fit for her pre-injury duties because she believed that she was capable of undertaking those duties. The plaintiff gave the clear impression in her evidence that she was undertaking her current heavier duties because she has to work and cannot be without a job for financial reasons: T38.49.
The plaintiff gave evidence that in her current job she had to clean multiple bathrooms on a daily basis: T40.6. The plaintiff stated that in her current rental apartment there were two bathrooms with one being used by her and one by her two sons. She said she cleaned her own bathroom but could not clean the shower. The plaintiff also gave evidence that she cooked her own meals at home and undertook vacuuming as part of her work and at home with the home task being shared with her son. She agreed that she expected her sons to contribute to the chores around the house as part of the family: T41.38.
In relation to her evidence about wanting to work as long as she could, she accepted that realistically that was a decision that she would make when she got to 67 years of age and would depend on her family and financial position: T41.48.
I formed a positive impression of Ms Gomez. She appeared to make every effort to answer the questions directly and to do so frankly. She made concessions where appropriate. Ms Gomez gave her evidence through a Spanish interpreter. However, to the extent I was able to assess in those circumstances, Ms Gomez impressed as a witness of truth whose evidence was, in general terms, reliable.

Oral evidence of Mr Eric Guzman.

Oral evidence was given in the proceedings by Mr Eric Guzman, the elder son of the plaintiff, Ms Gomez. At all relevant times, Mr Guzman has lived in the three-bedroom apartment with his mother, the plaintiff, and his younger brother.
In his evidence in chief, Mr Guzman initially said that his mother did all the housework in the flat before her accident: T44.26. However, later, in cross-examination, Mr Guzman agreed that he made a “very minimal” contribution to household tasks before the accident: T47.45. Mr Guzman later agreed that he contributed to help his mother with domestic duties within the apartment before the accident and shared the domestic duties: T48.48. This included doing some vacuuming and the cleaning of windows: T49.15. He said he did not assist with the bathrooms.
Mr Guzman said that in the first three months after the accident he did all of the housework because of the plaintiff’s injury. In addition, he gave evidence that he drove her to doctors’ appointments. After about three months, Mr Guzman said the plaintiff gradually improved in her ability to do the housework. At the time of giving evidence, he said his mother did a lot of the housework but not all of the housework. Mr Guzman said that he did the remainder and his younger brother did not contribute at all.
Although initially Mr Guzman said that presently he cleaned the bathroom, the shower, the balcony, the windows, a bird cage and undertook the vacuuming (T44.46), he then accepted that his mother did some of those things as well, such as cooking, cleaning her room and helping clean the bird cage. Mr Guzman stood by his evidence that his mother did not clean the bathroom (T45.9-.21), but he had seen her attempt it but without success due to pain: T45.29. This was inconsistent with the plaintiff’s evidence when she said she was able to clean her own bathroom with her sons cleaning the second bathroom they used but she could not clean the shower.
Mr Guzman gave evidence that he estimated the time he spent doing the housework each week that his mother could not do currently without pain at one to two hours. In addition, he drove the plaintiff to church whereas he did not have to do so before the accident. He said this was due to his mother’s pain in her knee if she had to go on a long journey with public transport. In relation to the plaintiff’s work, Mr Guzman said that his mother came home tired, in pain and complaining about her knee because of walking. She went to bed “straight after work”: T46.6. He also gave evidence that there was substantial change in the plaintiff after the accident: before she had been joyful and now she did not wish to go out and appeared to be depressed.
Mr Guzman gave evidence that he had a girlfriend in a serious relationship and he accepted that there may be some time in the future that he and his girlfriend decided to live together and away from his mother’s apartment. He asserted that in those circumstances his mother would not be able to do “anything” around the house and she would have to pay a cleaner. However, in response to a question from the Court, Mr Guzman agreed that he was a very supportive son to his mother and if he moved out he would still want to help her if he could: T47.13-.20.
In cross-examination, Mr Guzman accepted that if he moved out from the apartment his mother would be able to do the domestic activities that she does now: T50.31. Despite being pressed on the issue, Mr Guzman reaffirmed his evidence that it took him about one to two hours per week to do the tasks that his mother could no longer do since the accident: T50.38.
Mr Guzman appeared to be a straightforward witness who was very supportive of his mother. I formed the impression that he was keen to assist his mother in giving his evidence and, where there is a difference between his evidence and his mother’s evidence, I should prefer her evidence as being more reliable. Otherwise, Mr Guzman’s evidence should generally be accepted.

The defendant’s oral evidence

Evidence of Mr J Cheong

Oral evidence was given in the proceedings by Mr Justin Cheong. Mr Cheong is an employee of the defendant, Woolworths Group Ltd, and at all relevant times was the Assistant Store Manager at the MetCentre Woolworths store where the plaintiff was injured on 31 May 2021. He had been working at the MetCentre store for a couple of months as at 31 May 2021, but had been an Assistant Store Manager at another store for about a year: T59.
Mr Cheong gave evidence in relation to the cleaning and inspection systems and procedures that were in place in the MetCentre Woolworths store as at 31 May 2021.
The first system described by Mr Cheong was a system called “service zero”. Every hour the term “service zero” was called, and team members at the supermarket were meant to stop what they were doing and look around and find any hazards, including slip hazards, on the floor such as foreign objects. The call was made on the public address system in the supermarket. On occasion, Mr Cheong made the call over the public address system himself. Mr Cheong then clarified his evidence that the personnel would look around where they were working and from where they were standing but were not expected to move around in the area: T60.14; T60.49 and T61.15. Mr Cheong outlined the various departments in the MetCentre Woolworths store at the time which included a cafe where coffee was served on a takeaway basis. When a “service zero” was called, there was no expectation by Mr Cheong, as Assistant Store Manager, that staff members would undertake any inspections outside of their relevant department: T61.5. No records were kept in relation to compliance with the “service zero” cleaning and inspection system. Mr Cheong gave evidence that as at May 2021, sometimes the “service zero” calls would be missed or they were late but they were mostly called. Various reasons were given for missing a call and Mr Cheong said they would generally be called “a bit late” and not be “by the hour”: T62.31.
Mr Cheong gave evidence that another cleaning system in place at the time was the “sweep log”. This involved someone three times a day walking around the store and looking whether there were any contaminants or hazards on the floor. Such inspections occurred between 7am and 8am, 2pm and 3pm and 6pm and 7pm. Mr Cheong said that mostly such sweep log inspections occurred: T63.31. Records were kept in relation to sweep logs but on occasions Mr Cheong said that they were incomplete: T63.38. The records were not in evidence.

The third cleaning system and procedure in place as at May 2021, according to Mr Cheong, was a “clean as you go” or “tidy as you go” system. This involved personnel who were working keeping everything clean and tidy as they worked. This applied to staff where they were working at the relevant time: T63.42-T64.17.
The CCTV film (Exhibit B) was then shown to Mr Cheong. Where Exhibit B shows 5:03:04pm, Mr Cheong confirmed that the area shown was at the front of the store entrance where the accident occurred in an area shared by the hot food and produce departments. Mr Cheong confirmed that the vertical glass objects shown were security objects. Once somebody passed them, they were in the store proper: T65.36. Shopping baskets were shown in the picture for customers to use to assist them and these were frequently used: T66.1.
At video time marking 5:03:17pm, Mr Cheong stated that the video showed him to the right hand side using his phone. Mr Cheong confirmed that he had finished work, was no longer on duty and was going home. Mr Cheong indicated that after he had ceased work, a duty manager looked after the store: T67.16. At that time, Mr Cheong said he was not looking for hazards and the like on the floor as he had finished work: T67.32. Mr Cheong confirmed that the entrance area was shared between the produce and the hot food departments and that there were persons at Woolworths on 31 May 2021 responsible on the hour for looking around for hazards in that area: T67.48.
Mr Cheong confirmed that the video at 17:05:57 showed him returning to the store and then leaving very shortly afterwards but he could not recall why he did so.
The Court asked a question about a green sign on the floor of the entrance area directing customers to keep a distance from each other. It was on this sign where the piece of fruit was dropped on which the plaintiff slipped and fell. Mr Cheong said that there were signs like that around the shop, not only in the entrance area: T68.43.
Mr Cheong was then subject to a detailed cross-examination. Mr Cheong conceded that when he left the store the first time at 5:03pm he was standing within a metre of the piece of mango on the floor. He also conceded that when he left the store shortly before 5:06pm that he walked right past the spilt piece of fruit. Mr Cheong agreed that the area that was most frequented by the public was the entrance and the exit to the store and the part recorded on the video was the only entrance and exit to the shop: T69.14-.21.
Mr Cheong agreed that while the period at around 5pm was not the busiest time for the shop, which was lunchtime, the film showed dozens of people exiting and entering the store. He also accepted that if he had looked down at the green sign when he was standing near it at 5:03pm and had seen the piece of mango he would have recognised it as a slip hazard and would have alerted someone about it. Mr Cheong accepted that he would have done this as he would have considered the piece of fruit to be dangerous: T70.23. However, he would not have expected others to have done something about it if they had finished work and had seen the fruit: T71.8.
Mr Cheong gave evidence that the person responsible for checking the floor in the entrance area depicted at 5:06pm on the video was towards the café area. The person’s workstation was about five metres from the fruit on the sign on the floor. He also confirmed that as part of their duties under the “clean as you go” cleaning system, that person would be responsible for checking the floor area at the entrance and exit to the store: T72.27-T73.10. Importantly, Mr Cheong indicated that if Woolworths’ records showed that the last time the area at the entrance to the store was inspected by a team member was 4:05pm, that he would have expected, if the cleaning system was working properly, that the area would have been inspected again in the hour and six minutes after 4:05pm: T73.12-.26.
Mr Cheong gave evidence that in relation to the “service zero” cleaning system, every hour there was an announcement over the public address system in the supermarket and that was expected: T74.37. Mr Cheong agreed that it was the duty of every member of staff to check as far as they could see to make sure the floor surface of the store was safe from hazardous material and safe for persons entering and exiting the store: T74.44.-50. Mr Cheong was then taken to the photograph at page 49 of the court book Exhibit A which was from the primary report of Mr Wagstaffe. Mr Cheong accepted that the staff member responsible for inspecting the area where the green floor sign was located was the person at the coffee store and they are about five metres from the floor sign. Mr Cheong accepted that looking at the photograph, there was no physical impediment for the staff member to see the green floor sign: T76.9. It is to be noted that there was no evidence from Mr Cheong that the photograph at page 49 of Exhibit A was the same as the area indicated on the day of the accident.
Mr Cheong was then asked a number of questions about the safety incident report also known as a “pulse report” which was in evidence. Mr Cheong said that he was aware such a report was prepared but had never seen it. When it was put to Mr Cheong that according to Woolworths’ records the area where the fall occurred was last inspected at 4:05pm on the day of the accident, Mr Cheong indicated that he had no recollection of any “service zero” call over the public address system in the store before he left at 5:03pm on that day. He said he “wouldn’t remember”: T77.42. However, significantly, he said that he would have expected that there would be one: T77.47. He also agreed that the area at the entrance would be inspected pursuant to the “service zero” call by the person at the coffee counter: T78.1. He confirmed his evidence that the “service zero” call sometimes occurred every hour and sometimes it did not: T78.7.
Mr Cheong was then taken to page 186 of the court book which was an extract from the safety incident report of Woolworths relating to the accident. His attention was drawn to the entry saying that the area was last inspected by a Haydee Pedron, the Customer Service Team Manager, at 4:05pm in the context of her leaving the store. Mr Cheong could not remember why Ms Pedron would be inspecting the area at the entrance to the store if she was not the person behind the coffee counter in the supermarket responsible for the area at the time: T80.14-.23.
Mr Cheong was then showed another part of the video evidence which was Exhibit B, which showed a person who he identified as “Stanley” who looked after the area around the self-checkouts and who walked along the wall near the escalators to within a few metres of the green floor sign with the fruit piece on it: T88.30. Mr Cheong said that the entrance area was not the responsibility of the employee Stanley but his area was the self-checkout area which stopped before the entrance area: T88.41-.44. Mr Cheong confirmed that if the employee Stanley or the person in charge of the coffee counter and responsible for the entrance area had seen the spilt mango he would have expected them to clean it up or notify someone to clean it up but only if they saw it: T90.35-.42. Mr Cheong accepted that one of the reasons to have the “service zero” call every hour was for staff members to look around their area to make sure that nothing had been spilled in order to make the area safe for customers and to avoid falls: T92.31-T93.5. Mr Cheong agreed that if a staff member saw something on the floor even if it was not in their area, he would expect them to do something about it: T93.44.
Mr Cheong impressed the Court as a straightforward and honest witness who was doing his best to give accurate and clear evidence. Within the limits of his recollection, I accept him as a reliable and honest witness.

Submissions

The defendant submitted, in general summary, as follows:

While there are limitations in relation to the use of CCTV footage, there is no doubt in the present case that the contaminant in question upon which the plaintiff fell was only on the store floor for a period of less than nine minutes;

The subject incident took place at approximately 5:11pm at the front of the store as established by the pulse incident report and the CCTV film;

The area where the plaintiff fell was last inspected at 4:05pm by Ms Pedron. The last time a Woolworths’ employee was in the area was Mr Cheong at 5:03pm;

The three systems in place for cleaning and inspection in the store at the relevant time were those disclosed by Mr Cheong on his evidence;

A duty of care was owed by Woolworths as operator and occupier of the store to the plaintiff;

In relation to breach, foreseeability of risk of injury is not determinative and an occupier’s obligation is simply that of reasonable care. There is no duty to make the premises as safe as reasonable care and skill on the part of anyone can make them. What constitutes the exercise of reasonable care depends on the circumstances of each case;

There was no breach of duty by Mr Cheong in failing to detect the piece of fruit as he left, re-entered and again left the store after finishing his shift. There is no authority in support of such a proposition as far as the defendant is aware, in relation to a person who was off-duty. It is more than reasonable for an off-duty employee to be focused on going home and doing things other than work as they leave for the day;

There was also no breach of duty by the employee Stanley. In any case, the breach has not been properly particularised, Stanley was working in and had responsibility for the checkout department which is a different department from the store entrance area, the expert evidence does not establish the detectability of the contaminant in question from the perspective of Stanley, the film did not establish available sight lines and lighting, Stanley had other competing responsibilities and the criticism of Stanley is based on hindsight reasoning;

No-one observed the contaminant including any of the customers;

There was no breach, including by the coffee counter staff member, in failing to observe the small piece of fruit on the floor in question;

The plaintiff has failed to adequately prove the detectability of the hazard in question and thus no breach of duty is established;

Causation has to be established by the plaintiff. The onus of proof is on the plaintiff. Even if the systems were inadequate in that the “service zero” inspection that ought to have taken place at 5pm did not, there is a fatal flaw in proving causation. The contaminant was on the floor for a short period of time which was outside any reasonable period of inspection even on a more frequent proactive inspections basis. Mr Wagstaffe’s opinion does not engage with the difficulty. Rather he supports an hourly inspection system. Even if the “service zero” inspection had taken place, the incident would still likely have occurred. This case is quite different to other slip and fall cases which have been considered by appellate courts;

The plaintiff cannot prove causation and the proceedings should be dismissed;

As to damages, the plaintiff has returned to work and is able to complete heavy cleaning duties. The later reports of Dr Home and Dr Shatwell should be preferred and the plaintiff can complete all or nearly all domestic duties. Any allowance for future out-of-pocket expenses and future loss of earning capacity should be modest and take into account contingencies and vicissitudes. The defendant relied on its schedule of damages.

The plaintiff submitted, in general summary, as follows:

Even if no one saw the piece of fruit, it was readily observable upon inspection. There is a difference between being observed by a person and being located on inspection for contaminants;

The defendant did not comply with its own “service zero” inspection system requiring an inspection on the hour;

The piece of fruit which was dropped could readily be seen by Mr Cheong at 5:03pm when he was standing looking at his telephone, when he returned briefly and when he left for the second time. It could also be readily observable by the person at the coffee counter and by the employee Stanley who was close to the area where the piece of fruit had been dropped. All of those persons should have inspected the area and observed the piece of fruit. Mr Cheong was obliged to inspect the shop as he left even though he had finished his duties for the day;

There was a clear breach of duty by the defendant in complying with its own systems in accordance with the expert report of Mr Wagstaffe. In addition, or as part of the “service zero” system, there should have been an inspection of the front of store area having regard to its busy use as shown on the film;

Causation was established. The Court should find that if the fruit had been observed as it should have been by Mr Cheong, Stanley and the coffee counter person they would have arranged for it to have been cleaned up promptly. Mr Cheong accepted that he would have done that;

If they had done that, as they ought, the contaminant would not have been on the floor and the plaintiff would not have slipped on it;

As to damages, the accident severely affected the plaintiff including her social life and her interest in Latin dancing. It caused great pain and a reduction in interaction with friends. It causes her continuing pain and restrictions. There is a risk of future complications including arthritis in the knee;

Having regard to the pain and the effect on the plaintiff, a substantial award of damages for non-economic loss should be made. There should also be a generous buffer allowance for future out-of-pocket expenses, future loss of earning capacity and future commercial assistance. The court should find that there is a real chance that the plaintiff’s son will not be available to provide her with domestic assistance;

The injury and the continued pain has limited the plaintiff’s work options and is thus potentially productive of loss.

Factual findings

In the light of the evidence and taking into account the submissions made by the parties, the Court makes the following factual findings:

The plaintiff was born in October 1965 in Columbia in South America. She moved to Spain with her family when she was six years old. The plaintiff only completed schooling to the primary school level. When she left school she had various jobs including babysitting, cleaning and waitressing. The plaintiff is a native Spanish speaker. She has limited abilities in English in both the written and spoken form. This has limited the jobs available for her in Australia. The plaintiff was 57 years of age at the time of the commencement of the final hearing.

The plaintiff has two adult sons. Her son Eric, who is 23 years of age, gave evidence in the proceedings. Both sons, at all material times, have lived with their mother in a rented three bedroom, two bathroom unit.

The plaintiff emigrated to Australia in May 2012 with her former husband and her two sons. The plaintiff separated from her husband in 2014. The plaintiff does not drive a motor vehicle.

The plaintiff was injured in a slip and fall accident on 31 May 2021 at the MetCentre Woolworths store in Margaret Street in the city of Sydney. Prior to the plaintiff’s accident, she had worked in various jobs in Sydney as a cleaner, it appears working with Spanish speaking people.

At the time of the accident in May 2021, the plaintiff was working for a company called Dimeo as a part-time cleaner working 20 hours per week. The job involved a lot of walking, bending down and squatting during her work shift.

The plaintiff gave evidence that prior to the accident she had given some thought to working fulltime for Dimeo and had discussed this matter with company representatives. However, I find that no offer was made to the plaintiff by Dimeo for fulltime work. The plaintiff’s two children were not young at the time of the accident with the plaintiff’s eldest child being in his early 20s and the plaintiff’s younger child being in his late teens. It appears that the plaintiff had been content in working part-time for Dimeo before the accident. I find that it is unlikely, having regard to the age of her children and the plaintiff’s age and her limited English, that she would have altered her part-time employment status with Dimeo but for the accident. If she wanted to work fulltime, she would have taken more steps to do so. The plaintiff’s pre-accident part-time net earnings were approximately $450 per week according to her evidence: see also Exhibit 1.

Prior to the accident, the plaintiff was active in her recreational activities enjoying walking, swimming and particularly Latin dancing. She met up frequently with friends in relation to her Latin dancing interests. She had no prior problems with her right knee before the accident.

Prior to the accident, the plaintiff undertook most domestic duties around her flat including cleaning, laundry and cooking. Her son Eric assisted her on occasions with vacuuming, cleaning and other domestic tasks, although the plaintiff undertook most of the domestic activities.

As at 31 May 2021, Woolworths had three different cleaning and inspection systems in place at the Woolworths MetCentre store. The first involved a “sweep log” which involved staff walking around the store and looking whether there were any contaminants or hazards on the floor three times per day. The inspections occurred between 7am and 8am, 2pm and 3pm and 6pm and 7pm. Mostly, the sweep log inspections occurred.

The second cleaning and inspection system in place as at 31 May 2021 at the MetCentre store was a “clean as you go” system. This involved personnel who were working keeping everything clean and tidy as they worked such as picking up cardboard boxes and items from the floor.

The third system in operation at the store was the “service zero” system. Every hour while the store was opened, the term “service zero” was called over the public address system by a member of the staff. At that time, members of the staff in the store were meant to stop what they were doing and look around and find any hazards, including slip hazards, on the floor such as foreign objects. In doing so, staff were not meant to leave where they were standing to inspect their whole department area. Not all “service zero” announcements were made when they were supposed to be made. Sometimes they were delayed or did not occur.

On 31 May 2021 at 4:05pm Ms Pedron, Customer Service Team Manager at the store, inspected the front of store area and found it to be “clean and clear” before leaving the store. Ms Pedron did not give evidence in the proceedings. Why she left the store is not known.

There is no satisfactory evidence that a “service zero” announced inspection occurred either at 4pm or 5pm or between 4:05pm and the time of the plaintiff’s accident at 5:11pm. The video evidence negates there being an inspection at around 5pm.

At about 5:02pm, an unidentified customer entered the supermarket after descending the escalators and dropped a piece of fruit, apparently a piece of mango, at the front of store area just inside the entrance to the store. In the several minutes after this, various customers entered and exited the store and some of them stepped on the mango squashing part of it and smearing it on the floor. This occurred on a green sign asking customers to keep their distance which was on the floor of the store at the entrance area.

At 5:03pm Mr Justin Cheong, the Assistant Store Manager at the MetCentre store, concluded his work and left the store via the front of store area. He was no longer on duty. He stood near the mango on the floor looking at his phone for a period of time before leaving. Soon after leaving, he came back for one minute. It is unclear why he came back.

The risk was not insignificant: In my opinion, the risk of someone in a busy store tripping over or slipping on an object such as a piece of fruit left on the floor or a contaminant on the floor was clearly not insignificant;

Whether a reasonable person in the position of the defendant would have taken the precautions indicated: In the present case, the evidence establishes in the defendant’s incident report that the last person to inspect the entrance to the store and to find that it was “clean and clear” was Ms Pedron as she left the store. There was no satisfactory evidence that a “service zero” call had been made at either 4pm or 5pm. Mr Cheong was not able to assist in relation to that matter. No evidence was called from the person who was at the coffee counter at the time. The CCTV film establishes that no inspection was made at or around 5.00pm. I conclude from all the evidence, including the films, that no-one saw the piece of fruit upon which the plaintiff slipped, whether that was a customer after the fruit was dropped at 5:02pm or any staff member of the defendant. In my view it is likely, as Mr Cheong gave evidence, that if he or another team member of the defendant had actually seen the piece of fruit, whether in its whole state or as partly crushed, steps would have been taken by them to clean it up because it was an obvious dangerous hazard to persons including customers.

The plaintiff submits that the precautions that were taken in the present case were clearly inadequate. As was stated by the ACT Supreme Court of Appeal in Buljat v Coles Supermarkets Australia Pty Ltd [2022] ACTCA 71 at [32], the “key issue” is whether a reasonable person in the position of the defendant would have taken additional precautions to those actually taken. In Buljat, the ACT Court considered the various slip and fall cases in supermarkets and the cleaning systems which were adopted in paragraphs 33-43. In paragraph 45, their Honours stated as follows:
“45. Each of these cases reflect a factual conclusion as to whether or not the conduct of the occupier was reasonable within the legal framework in place from time to time. They reflect judgments of trial judges and appellate courts made by reference to the particular evidence about the use of the premises and the extent of the precautions taken in relation to the risk of slips and falls. Because they incorporate a standard of reasonableness they must inevitably reflect, to an extent, social values and community expectations: see Girvan at 244-245, 249.”

The film in evidence clearly shows that the entrance to the store was busy. Because of the escalators leading down to the store, all persons entering or exiting the store had to walk through the front of store area which appeared to be a relatively small area. It was also the place where baskets were located which many customers would use and thus walk in.

Taking into account Mr Wagstaffe’s opinion, in my view a reasonable person in the position of the defendant would at least have adopted and implemented as precautions the three cleaning systems he outlined and as Mr Cheong explained, being the “clean as you go” approach, the “service zero” reminder calls on the hour and a daily sweep log. A reasonable person in the position of the defendant would, as stated by Mr Wagstaffe, have taken reasonable steps to ensure that these cleaning and inspection systems occurred and were enforced by management because it is only if that occurs that they are effective.

Criticism was made by the plaintiff of a “service zero” system which relied on the person at the coffee counter seeing an object situated, or smeared, at the entrance whilst undertaking their duties some five metres away. In my view, there is some force in that submission. Having regard to the importance of the entry/exit area in the light of the set out of the store with it being located near the escalators, and the location of the person with responsibility at the coffee counter, in my view the “service zero” procedure should also have required a staff member to inspect the front of store area for objects or contaminants which posed a risk to customers and staff. In my view, a reasonable person in the position of the defendant, having regard to the risk indicated, would have taken the precautions of having the three cleaning and inspection systems in place and having a further inspection at least on the hour as part of the “service zero” cleaning system of the entrance area to the store, in the light of its busy use. If the person inspecting was the coffee counter employee as part of their “service zero” responsibilities, that should have reasonably required the person at the counter to have left the counter and inspected the entry area. Without this, the systems had a real risk of an employee not seeing and detecting a hazard or contaminant posing a risk to customers. To the extent the defendant submits that the cleaning systems were reasonably adequate even where an employee was not obliged to move within their department from where they were standing when “service zero” was called, I reject the submission;

The likely seriousness of the harm: A person not seeing an object or a contaminant and tripping or slipping on it may involve serious injuries to themselves and others in the vicinity as occurred to the plaintiff. There was accordingly a risk of serious harm if the precautions were not taken;

The burden of taking precautions to avoid the risk of harm: In my view there was not a significant burden on the defendant in taking the cleaning and inspection precautions which I have stated. This could readily have been done by existing staff members;

The social utility of the activity that creates the risk of harm: It is clearly important in my view that customers have safe access to a shopping supermarket to look at and obtain goods before purchasing them;

In my view the risk of injury by tripping or slipping in the circumstances indicated is obvious;

Taking into account all of the matters I have indicated, in my view a reasonable person in the position of the defendant in the present case would have adopted, implemented and enforced the three cleaning systems indicated by Mr Cheong and referred to by Mr Wagstaffe but involving a further inspection and, if necessary, cleaning of the front of store area at least hourly as part of the “service zero” call.

In my opinion, there was a breach of duty of care by the defendant in the present case. First, the defendant did not take reasonable steps to enforce and to ensure that the “service zero” system of cleaning and inspection occurred on the hour. The evidence shows that the inspection did not occur at 5pm. There was no evidence that it had occurred at 4pm. In addition, there was no satisfactory evidence before me that the person who was the staff member at the coffee counter had undertaken any inspection from their work station of the store entrance area at 5 o’clock or any time thereafter. In addition, there was no person allocated to undertake an additional or closer inspection on the hour of the front of store area. Mr Cheong said that no person was given that responsibility which in my view should have occurred having regard to the risks, the seriousness of the harm which could have occurred, the limited burden and the need to take adequate precautions which I have referred to above.
The plaintiff submitted that in addition, various persons such as Mr Cheong, the person working at the coffee counter and the self-check-out employee called Stanley should reasonably have seen the piece of the fruit on the green sign before the plaintiff slipped on it, and taken reasonable steps to ensure that the area was cleaned. It was submitted that Mr Cheong was standing only a metre from the fruit as he left the store. He also returned to the store briefly. It is also said that the piece of fruit was only a few metres from the employee Stanley. It was submitted that the coffee employee was only five metres from the front of store area. The evidence is clear in my view and I find that no-one whether it be a customer or an employee between 5pm and the time of the accident saw the fruit whether in whole or following it being partly crushed and smeared. This was despite the fact that the green on the sign on the floor in my view made the fruit slightly more obvious.
Having considered the matter carefully in the light of the film evidence, in my view I am unable to make those findings. The fruit, although obvious on the film in hindsight when you know it was there, was not of a nature to be readily ascertained except on a closer inspection. In addition, Mr Cheong had finished his duties at the store and was leaving. He was no longer on duty. He came back only very briefly. No authority was brought to my attention by the plaintiff in submissions placing an obligation on an employee to inspect after the employee had ceased duties for the day. It seems difficult to find that there was such an obligation. Secondly, the employee Stanley was not responsible for the front of store area. He was responsible for the check-out area. I cannot conclude from the film that the piece of fruit was within his line of sight. I accept the defendant’s submissions on this point. Whilst a photo was in evidence showing the coffee counter, that was taken the next year upon an inspection by Mr Wagstaffe. It is unclear what the field of sight and quality of sight was at the time of the accident for the coffee counter employee. This points to the importance of having an inspection by a person other than the person at the coffee counter on at least an hourly basis (unless they left the coffee counter area to inspect the front of store area).
A submission was made that there should have been an inspection of the front of store area on a far more regular basis than under the “zero hour” system or as part of the “clean as you go” system.
It must be recalled that the piece of fruit was dropped at 5:02pm and the plaintiff slipped at 5:11pm. The front of store area, although busy, was not an area such as a food court. It was not an area where liquids or produce including grapes and other pieces of fruit were stored or available for inspection. There was no requirement for constant inspection (and none was pleaded by the plaintiff). In Buljat at paragraphs 34-44, the ACT Court of Appeal examined the authorities where various periodic cleaning systems were considered in the various cases referred to.
In Strong v Woolworths Limited [2012] HCA 5; (2012) 246 CLR 182 the High Court determined that reasonable care required inspection and removal of slipping hazards at intervals no greater than 20 minutes in a sidewalk sales area. That conclusion was made in the context of the common area adjacent to the sidewalk sales area being cleaned every 20 minutes. In Alat v Franklins Pty Ltd [2012] NSWDC 104, a finding was made that as at 2008 a reasonable person would have instituted a system of cleaning and inspection of an aisle which contained numerous liquid items with a minimum frequency of every 15 minutes. In McQuillan, above, there was a concession that the cleaning system could not be improved where there were hourly floor inspections by staff and staff being required to be constantly on alert for hazards.
On all the evidence, I am not satisfied that an inspection of the front area of the store should have occurred any more frequently than on the hour as a periodic cleaning inspection. This was the view of the expert Mr Wagstaffe (it is different under the “clean as you go” system which may require more frequent cleaning). It must be recalled that there was only nine minutes between the piece of fruit being dropped and the accident. If there had been a half hour or even quarter of an hour inspection of the entrance area at 5 o’clock, 5:15pm or 5:30pm, it would have made no difference in the present case. I reject the submission that there should have been a system of cleaning and inspection in place as a reasonable precaution by the defendant which would have resulted in cleaning and inspection between 5:02pm and 5:11pm on the day of the accident.
However, because of the lack of enforcement of the existing “zero hour” cleaning system and the lack of any system for additional inspection of the front of store area, in my view there was a clear breach of duty of care in the present case by the defendant.

Causation

A significant issue in dispute in the case was causation.
Sections 5D and 5E of the CLA provide as follows:

“Division 3 Causation
5D   General principles
(1) A determination that negligence caused particular harm comprises the following elements—
(a)  that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b)  that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).

(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent—
(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
5E Onus of proof
In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.”

The plaintiff accordingly has the legal onus of proving on the balance of probabilities any fact relevant to the issue of causation in the proceedings: see Strong v Woolworths Limited [2012] HCA 5; (2012) 246 CLR 182 at [18]; Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 at [16]-[19]. As stated by the High Court in Strong v Woolworths, the determination of factual causation under s 5D of the CLA involves the application of the “but for” test of causation. This test requires a determination that in accordance with the section, negligence was a necessary condition of the occurrence of harm and that on the balance of probabilities the harm in fact occurred to the plaintiff and would not have occurred absent the negligence: see Strong, above at [18].
In Buljat, the ACT Court of Appeal stated as follows at paragraph 52:

“Causation (ground 4.8)
52. In order to succeed on liability, the appellant was required to establish that the precautions which a reasonable person in the respondent’s position would have taken would have resulted in the grape being detected and hence the slip not occurring.”

The findings of the Court in relation to when the piece of fruit was dropped and when the accident occurred means that the approach to the probabilities considered by the High Court in Strong v Woolworths, above, at [35]–[38] and by Hayne JA in Kocis v S E Dickens Pty Ltd [1998] 3 VR 408 at 430 is of less relevance. This approach was also adopted by the ACT Court of Appeal in Buljat at [56]. I accept the submission of counsel for the defendant to this effect.
In paragraph 80 of his report, as stated above, Mr Wagstaffe expresses the opinion that the systems of the defendant in relation to cleaning and inspection for a supermarket were adequate. On the facts of the present case, I have found that additional inspection was required at the front of store area. However, the breaches of duty I have found raise significant issues as to causation. If the “service zero” inspection had occurred at 5 o’clock it would not have resulted in the fruit being identified as it was dropped at 5:02pm. Similarly, an additional system of inspection in the front of store area at either 5pm or 5:30pm would also not have identified the piece of fruit as the former was before it was dropped and the latter was after the accident. Even if, contrary to my view, an inspection occurred on the quarter hour, one at 5pm would not have located the fruit and one at 5:15pm would have been after the accident.
The plaintiff submits that Stanley could have seen the piece of fruit if he had enforced the “clean as you go” system. However, the fruit was outside his area, he looked after the likely busy check-out area and it is not clear on the film that his line of sight enabled him to see the fruit as part of his duties.
The onus rests on the plaintiff to establish factual causation. Having considered the matter carefully, in my view the breaches of duty of care found have not caused the loss suffered by the plaintiff. If the precautions had been taken which I have indicated should have been taken, the plaintiff would still have slipped and suffered injuries. That is because the inspection would have occurred at 5.00pm before the fruit was dropped and no other inspection should have occurred until 6.00pm. Any more frequent inspection would also not have occurred, even if a greater obligation was imposed on the defendant, earlier than 5.15pm.
I have concluded above that Mr Cheong, having finished his work and gone off duty, and the employee Stanley, who had responsibility for a different area, did not breach any duty of care. That is the same with the coffee counter employee.
Accordingly, causation is not established by the plaintiff and the plaintiff’s case must fail.

Contributory negligence

Contributory negligence is pleaded in paragraph 21 of the Defence. The particulars of contributory negligence provide that the plaintiff failed to take reasonable care for her own safety and failed to keep a proper lookout and failed to take due care in all the circumstances.
This was not pressed by the defendant in final submissions.

Damages

Introduction

I have found that there has been a breach of duty of care by the defendant but that the breach did not cause the loss suffered by the plaintiff.
In the event that an appellate court finds that I am in error in this conclusion, I will briefly consider the question of damages in the present case. There is no evidence that the plaintiff had any relevant pre-accident medical conditions or disabilities.
The following submissions as to damages were made by the parties:

Head of Damage

Plaintiff

Defendant

Non-economic loss

$211,500 (32%)

$31,500 (22%)

Past out-of-pocket expenses – agreed

$2,500

$2,500

Future out-of-pocket expenses

Up to $55,978

Up to $5,000

Past loss of earning capacity and wages (including superannuation) – agreed

$22,500

$22,500

Future loss of earning capacity (including superannuation)

$150,000 (buffer)

Up to $25,000 (buffer)

Past domestic assistance – agreed

Nil

Nil

Future domestic assistance

$102,750

Nil

Non-economic loss

As stated, the claim is governed by the CLA. Under s 16(1) of the CLA, no damages may be awarded for non-economic loss unless its severity is at least 15% of a most extreme case. Under s 3 of the CLA, “non-economic loss” is defined as meaning any one or more of pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement.
There is no evidence that there has been a loss of expectation of life in the present case. Similarly, the plaintiff has not had surgery and therefore there is no disfigurement. The early wasting of her thigh is, on the medical evidence, no longer present.

There is no dispute by the defendant that the plaintiff is at least 15% of a most extreme case having regard to pain and suffering and loss of amenities of life. The real issue is the appropriate percentage of a most extreme case. Under the Civil Liability (Non-Economic loss) Amendment Order 2022 the maximum amount which can be awarded from 1 October 2022 is $705,000.
The following factors would appear to be relevant in considering this issue:

The nature of the plaintiff’s injury, including a fractured patella in the accident;

The need for her to wear a Zimmer splint and the use of crutches for a fairly lengthy period;

The pain caused by the initial injury and in the period thereafter;

The back pain caused initially probably by the use of crutches and the initial alteration in gait;

The plaintiff’s continuing need to wear a knee support;

The plaintiff’s continued use of Voltaren for pain;

The plaintiff continuing to experience pain in her knee arising from the accident while undertaking and following undertaking her normal work duties;

The plaintiff’s difficulties, which I accept, in undertaking heavier cleaning tasks at home;

The effect of the accident on the plaintiff readily using public transport for social purposes and in no longer being able to engage in Spanish dancing with the benefits of social activities with friends.

In my view, the percentage of a most extreme case submitted by the defendant of 22% is too low, taking account the above matters. However, I am also of the view that the plaintiff’s submission of 32% of a most extreme case is too high and does not take into account that the plaintiff can work and that she has had a substantial improvement in her position. See also the later medico-legal reports about the plaintiff’s likely future improvement. The continued pain and the effect on the plaintiff’s social life and ease in catching public transport to activities such as her Church attendance (and thus her independence) are relevant. In my view, taking into account all the evidence, the appropriate percentage is 27% of a most extreme case. Under s 16(3) of the CLA, the damages for non-economic loss in the case of 27% of severity is limited to 10%. The amount which should be allowed is $70,500.

Past out-of-pocket expenses

Past out-of-pocket expenses have been agreed in the sum of $2,500 and I allow that amount.

Future out-of-pocket expenses

Various future out-of-pocket expenses are sought by the plaintiff relying on the report of Dr Guirgis dated 25 January 2022.
However, I prefer the later and more detailed reports of Dr Home and Dr Shatwell. These reports are more consistent with the report of the plaintiff’s treating orthopaedic surgeon, Dr Szomor. They also more closely reflect the reality of the plaintiff returning to work part-time undertaking a fairly demanding job.
Accordingly, I make no allowance for the need for future arthroscopic surgery having regard to the opinions of Drs Home, Shatwell and Szomor on this issue which I found to be persuasive in the light of the plaintiff’s presentation to those doctors which post-dated the presentation to Dr Guirgis.
The evidence establishes that the plaintiff has had no other medical treatment including from her general practitioner for her injuries or physiotherapy since 2022. I do not allow therefore any amount for consultations with the plaintiff’s general practitioner or consultations with specialists in the future arising from her immediate injuries. In relation to physiotherapy, the plaintiff has had a treatment of physiotherapy and has kept to her home exercises routine in accordance with the physiotherapist’s advice which has assisted her. In my view, no further physiotherapy treatment is required.
Both Dr Home and Dr Shatwell refer to a small risk that the plaintiff could have long-term deterioration of function or problems with her patellofemoral joint in the future. Dr Shatwell is also of the view that the plaintiff taking fairly regular analgesia is reasonable, although he expresses the view that the plaintiff should be able to cease this medication at some stage in the next few months as it is unlikely to be providing any significant benefit. He also was of the view that use of an elasticated knee brace was reasonable but would advise against the plaintiff using this in the long term.
The future possibility of surgery is several years away and is regarded by Drs Home and Shatwell as small. That potential expense is thus a deferred expense which needs to be allowed for. Contingencies must be taken into account, for example that the plaintiff may not need the surgery. I refer to and apply the approach of the Court of Appeal in Avopiling Pty Ltd v Bosevski [2018] NSWCA 146 as to the need to take into account contingencies and vicissitudes.
In my view, I should make a buffer allowance for pain medication, a small risk of future problems with the knee joint (which may involve general practitioner and/or specialist review and/or physiotherapy treatment) and replacements of the elasticated knee brace for a three-year period. Taking all of these matters into account, I would allow the amount of $8,000 as a buffer for future out-of-pocket expenses.

Past economic loss and loss of earning capacity (including superannuation)

The amount was agreed of $22,500. I allow that amount.

Future economic loss (including superannuation) and loss of earning capacity

The plaintiff claims a substantial buffer on the basis that she may be disadvantaged in the future in maintaining or continuing in employment as a cleaner having regard to the deterioration she may encounter with respect to her right knee and her current knee pain and restrictions. It is also submitted that the plaintiff may have difficulties maintaining her current employment. A buffer may be allowed where the impairment is or may be productive of financial loss: see New South Wales v Moss [2000] NSWCA 133 at [87] and Penrith City Council v Parks [2004] NSWCA 201.
The principles I apply have recently been clearly stated by White JA (with whom Griffiths AJA and Weinstein J agreed) in Chen by her tutor Huang v Kmart Australia Ltd [2023] NSWCA 96 at [38]-[44]. I note, in particular, the requirements of s 13 of the CLA.
In my view, the plaintiff’s ongoing pain and limitations have reduced the plaintiff’s earning capacity in some cleaning and related occupations, particularly those involving heavy lifting, bending and squatting. This may possibly lead to some loss, including if future surgery is needed which the medical evidence establishes as being a small risk: see Chen, above, at [41].
In my view, much of the plaintiff’s difficulty in obtaining different or better employment is due to her limited understanding of English. She could also undertake nannying with a Spanish speaking family on her evidence.
However, the plaintiff’s continuing residual pain is relevant. The medical evidence before me suggests it will improve in the future but the nature of the work of the plaintiff raises some doubts in relation to a full or virtually full recovery. In my view, the plaintiff’s earning capacity has unquestionably been reduced but the extent of it and how long the difficulties will remain is unclear. There is also the small future risk (not quantified by the medical experts) which I have referred to.
In my opinion, the only adequate way to compensate the plaintiff is with a buffer. In my view, the buffer should be in the amount of $40,000 and I allow that amount.

Past domestic assistance

The plaintiff dropped the claim for past domestic assistance in the course of the hearing.

Future commercial assistance

The plaintiff relied on the report of Dr Guirgis in relation to the need for future commercial assistance. Dr Home, in a later report, was of the view that the plaintiff did not require assistance with domestic activities and that this was established by her working as a commercial cleaner. He did not anticipate the plaintiff’s need for domestic assistance would change in the short to medium term. He saw there being some risk that the plaintiff would need assistance with heavier domestic chores for one hour per week commencing 10 years from the present if she developed post-traumatic degenerative change in the patellofemoral joint.
Dr Shatwell was of the view that treatment for the plaintiff had been appropriate and had restored the plaintiff to near-normal right knee function. He was of the view that Ms Gomez was fit for all normal domestic duties and household tasks apart from squatting, kneeling, crouching and prolonged periods of stair climbing. He mentioned the likelihood of gradual improvement in knee function with the passage of time but also, like Dr Home, mentioned long term risks. He was of the view that Ms Gomez would not require any “significant” domestic assistance up to her retirement age as a result of her injury. What precisely was meant by “significant” is unclear. I find that the plaintiff will likely work to 67 only having regard to the heavy nature of her cleaning work.
In my view, the plaintiff is able to undertake virtually all domestic duties. She has some difficulty at present with harder domestic tasks in the bathroom she uses in her unit. She also has some restrictions and pain in catching public transport to Church.
I consider it unlikely that her son Eric will not continue to assist her even if he moves out and establishes his own life with a partner. However, there is a possibility that he will not be always available.
In my view, it is inappropriate to allow the sum claimed by the plaintiff which really relies on Dr Guirgis’ report.
There is, however, some risk for the future, particularly if the plaintiff suffers a deterioration as referred to in the reports of Dr Home and Dr Shatwell. Some allowance in my view should be given for future commercial assistance but it should be modest. Some of the potential costs will be deferred. I would allow $4,000 under this heading as a buffer.

Conclusion on damages

Accordingly, in the event the plaintiff had succeeded I would have allowed the following amounts

Non-economic loss

$70,500

Past out-of-pocket expenses

$2,500

Future out-of-pocket expenses

$8,000

Past economic loss

$22,500

Future loss of earning capacity

$40,000

Past care

Not claimed

Future commercial care

$4,000

Total

$147,500

Determination

As causation has not been established the plaintiff’s claim must fail. Costs should follow the event and I will make an order to that effect unless some special circumstances can be established. I give leave to apply within 14 days if such an application is sought.
For the above reasons, I make the following orders:

The proceedings against the defendant are dismissed.

Verdict and judgment for the defendant against the plaintiff.

The plaintiff is to pay the defendant’s costs of the proceedings as agreed or assessed.

Leave is granted to either party to apply within 14 days to vary the costs order in (3) above.

**********

Decision last updated: 23 June 2023

Medium Neutral Citation:	Gomez v Woolworths Group Limited [2023] NSWDC 221
Hearing dates:	12-13 April 2023; 18 May 2023
Date of orders:	21 June 2023
Decision date:	21 June 2023
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	1. The proceedings against the defendant are dismissed. 2. Verdict and judgment for the defendant against the plaintiff. 3. The plaintiff is to pay the defendant’s costs of the proceedings as agreed or assessed. 4. Leave is granted to either party to apply within 14 days to vary the costs order in (3) above.
Catchwords:	TORTS – negligence – slip and fall – Civil Liability Act 2002 (NSW) claim – alleged breach of duty of care by the defendant relating to the inspection and cleaning of the defendant’s supermarket store – whether breach of duty of care – whether any breach caused the plaintiff’s injuries – current disabilities of the plaintiff - damages
Legislation Cited:	Civil Liability (Non-Economic loss) Amendment Order 2022 (NSW) Civil Liability Act 2002 (NSW)
Cases Cited:	Alat v Franklins Pty Ltd [2012] NSWDC 104 Argo Managing Agenc y Limited v Al Kammessy [2018] NSWCA 176 Avopiling Pty Ltd v Bosevski [2018] NSWCA 146 Buljat v Coles Supermarkets Australia Pty Ltd [2022] ACTCA 71 Chen by her tutor Huang v Kmart Australia Ltd [2023] NSWCA 96 Jackson v McDonald’s Australia Ltd [2014] NSWCA 162 Kocis v S E Dickens Pty Ltd [1998] 3 VR 408 Lloyd v Thornbury [2019] NSWCA 154 New South Wales v Moss [2000] NSWCA 133 Patrick Stevedores Operations (No 2) Pty Ltd v Hennessey [2015] NSWCA 253 Penrith City Council v Parks [2004] NSWCA 201 Strong v Woolworths Limited [2012] HCA 5; (2012) 246 CLR 182 Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 Woolworths Ltd v McQuillan [2017] NSWCA 202
Category:	Principal judgment
Parties:	Martha Cecil Chacon Gomez (Plaintiff) Woolworths Group Limited (Defendant)
Representation:	Counsel: H Marshall SC and J Tryon (Plaintiff) B Wilson (Defendant) Solicitors: Emanuel Refenes Solicitor (Plaintiff) Meridian Lawyers (Defendant)
File Number(s):	2022/00077986
Publication restriction:	No

Head of Damage	Plaintiff	Defendant
Non-economic loss	$211,500 (32%)	$31,500 (22%)
Past out-of-pocket expenses – agreed	$2,500	$2,500
Future out-of-pocket expenses	Up to $55,978	Up to $5,000
Past loss of earning capacity and wages (including superannuation) – agreed	$22,500	$22,500
Future loss of earning capacity (including superannuation)	$150,000 (buffer)	Up to $25,000 (buffer)
Past domestic assistance – agreed	Nil	Nil
Future domestic assistance	$102,750	Nil

Non-economic loss	$70,500
Past out-of-pocket expenses	$2,500
Future out-of-pocket expenses	$8,000
Past economic loss	$22,500
Future loss of earning capacity	$40,000
Past care	Not claimed
Future commercial care	$4,000
Total	$147,500