Jenny Korda v Aldi Foods Pty Limited and Brice Australia (NSW) Pty Limited
[2016] ACTMC 11
•2 November 2016
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Jenny Korda v Aldi Foods Pty Limited and Brice Australia (NSW) Pty Limited |
Citation: | [2016] ACTMC 11 |
Hearing Dates: | 27 - 28 September 2016 |
DecisionDate: | 2 November 2016 |
Before: | Magistrate Theakston |
Decision: | 1. Judgment is entered for the plaintiff in the sum of $56,054.93. 2. The usual order as to interest, as described at r 1622 of the Court Procedures Rules 2006. 3. The defendant pay the plaintiff’s costs of the proceedings. 4. Order 3 does not take effect if within seven days of this order either party notifies my associate that it wishes to be heard in relation to alternative orders as to costs. |
Category: | Decision |
Catchwords: | NEGLIGENCE – Occupiers liability – Standard of care – Shopper injured when shopping trolley collided with automatic gate – Precautions to avoid risk – Whether defendant negligent in not providing warning notice that gate does not always open – Contributory negligence |
Legislation Cited: | Civil Law (Wrongs) Act 2002 ss 42, 43, 44, 45, 46, 102,168 Court Procedures Rules 206, r 1622 |
Cases Cited: | Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 Bailey v Lend Lease Fund Management Ltd [2013] ACTSC 56 (5 April 2013) Wyong Shire Council v Shirt (1980) 146 CLR 40 |
Texts Cited: | Britts, Comparable Verdicts in Personal Injury Claims, The Law Book Company Limited |
Parties: | Jenny Korda (Plaintiff) Aldi Foods Pty Limited (ACN 086 210 239) (Defendant) Brice Australia (NSW) Pty Limited (ABN 83 055 370 539) (Third Party |
Representation: | Counsel Mr D Richards (Plaintiff) Mr W Sharwood (Defendant) Mr J Pappas (Third Party) |
| Solicitors Maliganis Edwards Johnson (Plaintiff) McCabes Lawyers (Defendant) Sparke Helmore (Third Party) | |
File Number: | CS 504 of 2015 |
MAGISTRATE THEAKSTON
Introduction
This is a personal injury negligence claim against the defendant as the occupier of the Canberra Centre Aldi Store. The incident occurred on 19 December 2013. The defendant in turn sought indemnity or contribution from the third party as the installer and repairer of the entry gates at the Aldi store. At the commencement of the hearing the defendant withdrew its claim against the third party, and the third party took no further part in the proceedings.
The plaintiff is a 64 year old single woman employed as an Australian public servant. She was 62 years old at the time of the incident. The defendant was and remains the occupier and operator of the Aldi store.
The incident can be described initially as follows. The plaintiff entered the store while pushing a shopping trolley. The trolley collided with a swinging entry gate that failed to open automatically. The plaintiff struck her lower left shin against the trolley. The plaintiff experienced significant pain and subsequently developed a large infected haematoma at the injury site, which required debridement surgery, followed by a skin graft. The plaintiff has been left with a large, permanent disfigurement at the site, which has no sensation, and a significant phobia about re-injuring the site.
Pleadings
The plaintiff pleaded that the defendant had a duty to protect the plaintiff’s safety as the occupier of the premises, the defendant breached that duty by reason of the state and operation of the gate assembly, including failing to give any warning that the gates were not operating correctly, and the plaintiff consequently suffered the above injuries and disabilities with associated economic loss.
The defendant’s pleadings did not admit the existence of the duty, admitted the incident did occur, but denied any breach of the duty, and did not admit the injuries and disabilities. The defendant also claimed contributory negligence.
Issues
The common law rules about the standard of care that an occupier must show to entrants in relation to dangers on premises have been replaced by s 168 of the Civil (Wrongs) Act 2002 (the Act): Bailey v Lend Lease Fund Management Ltd [2013] ACTSC 56 (5 April 2013) at [67]. Relevant extracts from the Act are reproduced at Annex A. There may not be much difference in substance between the common law rules and those provided by s 168: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488; Brozinic v ISS Facility Services Australia Ltd [2014] ACTSC 8 (7 February 2014) (Brozinic) at [51]. During the course of the hearing there was evidence of, and no challenge to, the application of the occupier’s duty described at s 168(1) of the Act. That provision provides that an occupier must take all care that is reasonable in the circumstances to ensure that an entrant does not suffer injury because of the state of the premises, or things done or omitted to be done about the state of the premises.
Similarly, during the course of the hearing there was evidence of, and no challenge to, the injuries and disabilities suffered by the plaintiff, nor any issue about their factual or legal causation as required by s 45 of the Act.
The facts of the incident were not ultimately in dispute, and are described in detail below.
The issues left to be decided are:
(a)was there a breach of the standard of care,
(b)was there contributory negligence, and
(c)the quantification of any damages.
10. Ultimately I find the defendant did breach the standard of care, there was contributory negligence and damages are to be awarded.
Facts and Chronology
11. I make the following findings in relation to the incident, treatment, injuries and disabilities on the balance of probabilities.
12. Incident. The incident occurred just before noon on 19 December 2013 at the gate assembly entrance to the Canberra Centre Aldi Store. The gate assembly comprised two tandem swinging metal gates that opened automatically when approached from outside the store. On the day in question, the first gate was fixed open and the second gate was operational. The gate assembly was recorded on CCTV footage and is described in more detail below.
13. The plaintiff regularly attended the Aldi Store. Aldi shopping trolleys were stored just outside the gate assembly.
14. Just prior to the plaintiff entering the store two shoppers, without a trolley, walked through the gate assembly without incident. The second gate opened just as the first shopper placed his hand out in front of him towards the gate, and shortly thereafter closed behind the second shopper.
15. Seconds later the plaintiff entered the gate assembly while pushing an empty Aldi shopping trolley. As she pushed her trolley towards the closed second gate, she looked up and to her right, away from the gate and towards a display of biscuits. She expected the second gate to open automatically. It did not. The trolley collided with the closed second gate and stopped. The plaintiff struck her lower left shin on the trolley. The plaintiff experienced significant pain and immediately reached down and touched her lower left shin. The plaintiff then moved her trolley back and forth twice and the gate opened. The plaintiff continued through the assembly, limping slightly as she did so. She was followed by another shopper and the gate closed behind that shopper. The plaintiff again reached down and touched her lower left leg, and described experiencing pain that was, to use her words, absolutely excruciating.
16. Seconds later two further shoppers, without a trolley, walk through the gate assembly without incident. The second gate opened as the first shopper placed her hand out towards the gate, and shortly thereafter closed behind the second shopper.
17. The plaintiff reported the incident to a manager at the store and completed an Incident Report and Investigation form before leaving the store. She described the pain at that time as being 7.25 out of 10.
18. Treatment. On the same day as the incident, the plaintiff attended Calvary Hospital Emergency Department. She was observed to have a large haematoma on her lower shin, with no fracture of the adjacent bone. She was discharged with a treatment plan involving the application of ice, the elevation of the limb and a prescription for the analgesic Endone. Following that examination, the swelling continued to increase in size.
19. Four days later on 23 December 2013, the plaintiff attended her General Practitioner at the Dickson Medical and Travel Clinic. She was observed to have an 8cm x 13cm haematoma on the lower anterior part of her left leg, with swelling of the foot and bruising tracking above the injury. The treatment plan involved continued elevation, a compression bandage and possibly a further prescription for Endone.
20. On 24 December 2013, the following day and Christmas Eve, the plaintiff telephoned her General Practitioner’s rooms. She informed a doctor that the injury was starting to ooze and that she was really concerned. The plaintiff was told that she should keep the site clean and dress it regularly, and if there were any difficulties she could contact the Canberra Afterhours Locum Medical Service. The plaintiff was experiencing pain ranging between 5 and 8.5 out of 10 depending upon her ingestion of Endone.
21. On 29 December 2013, the plaintiff attended Calvary Hospital Emergency Department. She indicated the swelling and pain had become ‘nightmarish’ and the injury had started to smell. She was still experiencing pain. She was observed to have a liquefied clot in her leg that presented as a large blood blister over the distal shin. The treatment plan involved dressing with a combined dressing. She was advised that should the skin split, she should allow it to drain for a few hours before covering the same with a supplied dressing.
22. On 2 January 2014, the plaintiff attended her General Practitioner at the Dickson Medical and Travel Clinic. By this stage the skin over the injury had turned black and putrid. She was observed to have large laceration and very large haematoma, and was assessed as requiring surgery. An ambulance was called and she was immediately transferred and admitted to The Canberra Hospital.
23. On 3 January 2014, the plaintiff underwent surgery involving the debridement of a large area of necrotic skin and congealed blood, spanning an area of 20cm x 12cm and leaving a large exposed wound.
24. On 7 January 2014, the plaintiff underwent further surgery to wash out the wound and apply a skin graft to the wound that was sourced from her left thigh..
25. On 13 January 2014, the plaintiff was discharged from The Canberra Hospital.
26. The plaintiff has been left with a prominent, permanent, vulnerable and unsightly contour deformity on her left shin that cannot be improved by surgery. She experiences regular shooting pain to her left foot, which is aggravated by exposure to cold temperatures. She is no longer able to walk or stand for periods much beyond 10 to 20 minutes. She has also developed a clinical level of Specific Phobia, manifesting as an extreme fear of re-injury to the area.
Gate Assembly
27. The plaintiff led evidence from, and tendered a report by, Dr Timothy White, a mechanical engineer. Dr White’s evidence described the gate assembly at the front of Aldi Store and compared it to what he observed on the CCTV footage. He assumed that the gate assembly he inspected nine months after the incident was the same as what was in place on the day of the incident.
28. Dr White described the gate assembly as a Wanzl Technoport 2 fold system. It involved two tandem gates that operated independently of each other. That is, there was no command connection between the gates. When a customer approached near the front of the first gate, a radar sensor on the first gate detected the customer and the gate swung open. When the first gate swung open, the movement of the first gate was detected by the radar in the second gate and the second gate then swung open. During his evidence, Dr White conceded that such design may have been either coincidental or intentional.
29. Dr White observed that on the day of the incident the first gate was fixed open. The second gate swung open for the customers before and after the plaintiff, but did not initially open when the plaintiff approached that second gate with a trolley. He concluded, axiomatically, that the first gate was malfunctioning because it was fixed open, and the second gate malfunctioned as it failed to open as the plaintiff’s trolley approached. In relation to the second gate, Dr White speculated that there may have been a problem with the electrical circuit between the trigger mechanism and the motor and or a problem with the motor and gearbox. During cross examination, Dr White also speculated that the gate may not have opened because the sensor did not trigger for some reason.
30. Dr White compared the configuration of the gate assembly to the various configurations described within a translated operating manual, attached to his report. The provenance and purpose of the former document were not evident. Additionally there was no evidence whether or not its contents were known, or ought to have been known, to the defendant. Dr White noted that the document described gate assembly configurations using either only a light barrier sensor, or both radar and light barrier sensors. His observations of the gate assembly at the Aldi Store were that each gate used only a radar sensor, and therefore that configuration was not consistent with the configurations described within the document.
31. I was invited by the plaintiff to find that the gates had therefore not been installed in accordance with the manufacturer’s specifications. However, I cannot accept that submission on the available evidence. It is not clear if the configuration was contrary to the manufacture’s specifications as it remains unclear what, if any, those specifications were. Rather the evidence established that the configuration was not the same as those described within the above document. Additionally, it is unclear why the gate failed to open and therefore whether the configuration was a factor leading to that failure. Accordingly, it is not clear to me what to make about the difference between the configuration installed and those described within the document.
32. Ms Jane Scott, a Front End Supervisor and Safety Officer at the Aldi Store, was called by the defendant to give evidence. She had worked at the store for six years, and therefore had been there for three plus years before the incident. She testified that, in addition to reporting any safety hazards that came to her attention, she would also periodically conduct deliberate inspections of the store by reference to a Store Hygiene & Safety Checklist. That checklist did not include an item in relation to inspecting the gate assembly, but did include an item for checking the ‘entrance/exit area’. During the course of her inspections, Ms Scott had gone to the entrance of the store, look around and walk through the gate assembly for the purpose of identifying any risk. There was no evidence that she identified a risk in relation to the gate assembly.
33. Ms Scott could not remember there being any problem with the gate assembly on the day in question prior to the incident. She agreed the first gate was fixed open and explained that was so because it had been swinging wildly. She believed that she probably disconnected the sensor and thereby caused the gate to be fixed open. She understood a technician had been called, but was not involved in that process. She testified that the second gate had not previously malfunctioned and had therefore never needed to be left open.
34. Ms Scott described that the gate assembly had been the site of incidents before 19 December 2013 and that those incidents had continued to occur. They involved children playing with the gates by either pushing them or attempting to stop them closing. Children had been struck in the chest and face, and the store had responded by providing ice packs for those injuries. Additionally, customers had attempted to leave the store through the gates and had been caught in the area between the first and second gates. The latter set of incidents appear to be examples of the gates operating as they should, by preventing customers exiting the store through that entrance.
35. Mr Jeremy Jacobson, a Store Manager at the Aldi Store, was also called by the defendant to give evidence. He testified that he commenced working at the Aldi Canberra Centre store eight years before, (circa 2008) and that during the month of December 2013, approximately 60,000 paying customers, and others, had attended the store.
36. Ms Claire Weir, an Area Manager for Aldi Food Stores, was also called by the defendant to give evidence. She testified that, in relation to the gate assembly, there had been times when a customer walked up to a gate and a gate did not open. She explained the customer needed to be ‘sensed by the sensor’. Ms Weir also indicated that there was no maintenance log for the Wanzl gates and that it had on occasions taken ‘some time’ for the contractor, who maintains the gates, to attend to perform maintenance. That time was not quantified.
Submissions in Relation to Liability
37. Submissions were made on behalf of the plaintiff that the gate assembly was faulty on the day of the incident and was not within the specifications set out by Wanzi, as the second gate appeared to be triggered by radar rather than by a light barrier. The plaintiff was injured when walking through the gate assembly because the second gate did not open. Had the first gate been operating, the second gate would have opened when it sensed the first gate moving, and the plaintiff would not have been injured. Mr Richards submitted that the defendant knew, or ought to have known, that the gate assembly was a hazard because Ms Scott had disabled the first gate, and that first gate was part of a system or ‘moving mechanical assembly’.
Submissions were made on behalf of the defendant that there was an absence of evidence of any previous problem with the gate in question, and that approximately 2,000 customers a day had been frequenting the store, passing through the gates and the store had been operating at the time of the incident for five years. There is an insufficient basis to support a finding of negligence.
Breach of Standard of Care
39. The process for considering whether there has been a breach of the duty of care was explained by Mason J, with whom Stephen and Aickin JJ agreed in Wyong Shire Council v Shirt (1980) 146 CLR 40 (Shirt) at 47 and 48:
In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.
40. As indicated above, s 168 of the Act replaces the common law rules as to the standard of care an occupier must show to entrants in relation to any dangers on the premises. In Brozinic at [51] & [52], Mossop M, as he was then, determined that the provisions in s 168 were, in substance, the same as those required at common law, and that the separate provisions of ss 43 and 44 of the Act also apply in claims of occupiers’ negligence.
41. Section 43 of the Act provides a number of mandatory considerations applicable to claims of negligence due to failing to take precautions against a risk. Some of those considerations duplicate the considerations provided by s 168. Those considerations will be addressed below.
42. Section 44 of the Act provides a number of principles that must also be taken into account, namely:
(a)the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible; and
(b)the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which it was done; and
(c)the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in relation to the risk and is not of itself an admission of liability in relation to the risk.
43. In Brozinic at [57] and [58], Mossop M also noted that, in addition to the above principles, the following principles apply when assessing what is reasonable action:
(a)The assessment about what was or would have been reasonable action or precautions must be answered prospectively and not undertaken in hindsight: Vairy v Wyong Shire Council (2005) 223 CLR 422 at 499 and 461-462; Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 at 438. The fact that a risk has materialised is relevant to the question of reasonableness of any precaution, but it must not divert the court from the assessment of what a reasonable person in the defendant’s position at the relevant time would have done.
(b)Dangers or hazards exist in all buildings and there is no such thing as absolute safety: Jones v Bartlett (2000) 205 CLR 166 at 195-196; Neindorf v Junkovic (2005) 80 ALJR 341 at [7]-[9].
44. Before making a finding about whether there has been a breach of the relevant duty, I will consider each of the above mandatory considerations.
45. Was the Risk Foreseeable? – s 43(1)(a). I turn now to the consideration whether a reasonable person in the defendant’s position who was in possession of all the information that the defendant had, or ought to have had, at the time of the incident would have foreseen that a customer may suffer an injury by entering the gate assembly.
46. The gates were described as the single customer entrance point of the store. Mr Jacobson testified that a large number of customers frequented the store. The plaintiff testified that the store trolleys were located outside of the gate and pushed through the gate assembly. Ms Weir testified that at times the gates within the assembly did not open. Ms Scott indicated that from time to time the first gate swung wildly and needed to be disconnected. Ms Scott also testified that the gate assembly had from time to time caused injury to children and the store had responded by providing ice packs for those injuries suffered. However, Ms Scott indicated that she was not aware of any previous incidents involving trolleys with the gates.
47. The Store Hygiene & Safety Checklists forms that were used to check for potential hazards did draw attention to the ‘Entrance/Exit Area’ and ‘Auto Doors/Sensors’.
48. I am accordingly satisfied that, in accordance with s 43(1)(a) of the Act, the risk of someone being harmed when using the gate assembly was a risk that the defendant knew, or ought to have known, and was therefore foreseeable.
49. Was the Risk Not Insignificant? – s 43(1)(b). The expression ‘not insignificant’ is used in an identical NSW provision, and was, in that context, compared to the formula used in Shirt, namely ‘not far-fetched or fanciful is real and therefore foreseeable’: Shaw at [44]. It was concluded that the former with respect to the latter ‘imposes a more demanding standard but ... not by very much’.
50. It is clear from the dynamic nature of the gate assembly, its frequency of use and past history that the risk was not insignificant.
51. Consideration of Precautions – s 43(1)(c). I turn now to the question whether in the circumstances, a reasonable person in the defendant’s position would have proceeded as the defendant did or have taken other precautions. This is informed by the various mandatory considerations described at ss 43(2) and 168 of the Act. A number of considerations from the different sections correspond and I address such considerations together.
52. The circumstances of the entry onto the premises (s 168(2)(b)). The plaintiff entered the premises lawfully and at the invitation of the defendant. I take judicial notice that the plaintiff belonged to a class of persons who were actively encouraged to enter Aldi Stores and purchase the products contained therein.
53. The gate assembly was the single point of entry for customers to enter the store.
54. The nature of the premises (s 168(2)(c)). The store was one of a number of supermarkets, commercially operated by the defendant and open to the public. It was located within a city shopping mall.
55. The knowledge the occupier has or should have about the likelihood of people or property being on the premises (s 168(2)(d)). The defendant knew and expected customers, with shopping trolleys, to be on the premises and attempt to pass through the gate assembly when entering the store.
56. The age of the person entering the premises (s 168)(2)(e)). The plaintiff was 62 years of age at the time of the incident.
57. The ability of the person entering the premises to appreciate the danger (s 168(2)(f)). The gates were clearly visible to the plaintiff and were obviously designed to open automatically. The plaintiff had regularly attended the store previously and entered the store through those gates. While it was known to the defendant that the gates did not always open, there was no warning sign explaining the same to the plaintiff. The plaintiff had the ability to appreciate that should the gates not open her trolley may strike the gate. However, she would not necessarily have had the ability to appreciate that the gates would remain firm, without any give, causing her trolley to stop abruptly.
58. The social utility of the activity creating the risk of harm (s 43(2)(d)). Supermarkets provide a range of essential food, groceries and consumables for customers. They provide an essential social service. It was submitted on the defendant’s behalf that there is also social utility in supermarkets controlling the flow of customers and guarding against theft, a cost that would ultimately be borne by their honest customers. That submission was unchallenged, and I accept the same. I also find that there would be social utility in the supermarket minimising theft in a cost-effective way.
59. The probability that the harm would happen if precautions were not taken (s 43(2)(a)) and the likelihood of the probable injury (s 168(2)(a)). The plaintiff submitted that there was a high likelihood that a customer would suffer an injury to their lower limb should a gate failing to open automatically. While an injury occurred in the instant case, there was no evidence to support a finding that the likelihood was high. For example, the evidence did not include any description about the trolley’s structure or human anatomy that may increase the likelihood of an injury.
60. Based on the absence of a previous incident involving the gates not opening and a trolley, and the high frequency of use over an significant period of time, I find that the probability of the incident occurring was low.
61. The likely seriousness of the harm (s 43(2)(b)) and the gravity of the probable injury (s 168(2)(a)). As indicated above, the assessment of the seriousness of probable harm must be conducted prospectively and not retrospectively.
62. There was no obvious or inherent danger of suffering a serious injury. There was no evidence about a trolley’s structure or human anatomy that would make such bumps more consequential than they might otherwise have been expected.
63. Customers would be travelling at walking pace. At worst the reasonable person may anticipate a shopper could bump their body into the trolley. Such bumps would not be expected to be particularly hard. Unrelated incidents involving other risks associated with the gates had only resulted in minor injuries requiring the application of ice packs.
64. Prior to the incident, any deliberate consideration of the likely harm and probable injury would have yielded estimates that such harm or injuries would be minor. However, such deliberations would have also yielded the possibility of harm that would be more serious, to some degree.
65. The burden of taking precautions to avoid the risk of harm (s 43(2)(c)) and the burden of removing the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person (s 168(2)(g)). The plaintiff submitted that an appropriate precaution would have been to leave the second gate open. No evidence was led by the plaintiff about this precaution, and the possibility was not put to the defence witnesses. There is, accordingly, no direct evidence about the utility or burden of taking that precaution. Presumably, it would have been simple for someone, such as Ms Scott, to disconnect the sensor to the second gate, as she had done so for the first gate, leaving both gates open. A consequence would be customers could exit the store through that gate assembly, potentially with unpurchased stock. That consequence could have been mitigated by placing a staff member adjacent to the gate assembly. However, the burden of employing a staff member to do so, other than attempting to identify the means of the defendant, was not otherwise explored during evidence.
66. The burden of leaving the second gate open, with or without the placement of a staff member, would therefore not have been insignificant. However, on the evidence it is impossible to quantify that burden further.
67. The plaintiff’s pleadings claim that the defendant should have given shoppers a warning that the gates were not operating correctly and there was a risk to the shoppers. Presumably such a precaution could have involved placing a warning sign proximate to the gate. That would not have carried much of a burden, and could have been actioned simply and quickly.
68. Determination of Precautions. I now turn to the question of whether a reasonable person in the defendant’s position would have acted as the defendant did, or would have taken either of the two precautions suggested by the plaintiff. I note that the fact that a risk has materialised or could have been avoided is not determinative of the question.
69. This assessment is made in the context of the defendant actively encouraging the plaintiff to enter its store through the gate assembly, while pushing a trolley, and knowing that the first gate was fixed open and that the second gate may not open every time a shopper approached. There was social utility in the defendant using the gate assembly for the purpose of cost-effectively reducing theft. The plaintiff had a clear view of the closed gate and had the ability to appreciate the risk that if the gate did not open, the trolley could collide. However, the plaintiff did not have the ability to appreciate that the gates would remain firm, without any give, causing the trolley to stop abruptly.
70. The gate was designed to open automatically and there was no warning that it may not do so. Shoppers would expect the gate to open. The plaintiff did expect the gate to open.
71. While the likelihood of harm occurring was low and the likely seriousness of the harm was minor, it was foreseeable that more serious harm could potentially occur. The precaution of placing a warning sign adjacent to the gate involved only a minimal burden upon the defendant. On the balance of probabilities I find that a reasonable person in the defendant’s position would have displayed such a warning sign, and that it was unreasonable for the defendant, in the circumstances, not to have done so.
72. Due to the uncertain burden of leaving the second gate open, I am unable to form a view about whether a reasonable person would have taken that precaution.
73. Accordingly, I find that the defendant breached the standard of care, to take all care that is reasonable in the circumstances to ensure that anyone on the premises does not suffer injury or damage because of the state of the premises or things done or omitted to be done about the state of the premises.
Contributory Negligence
74. I have considered the issue of contributory negligence on the basis that the duty described at s 168(1) of the Act does not trigger the bar to contributory negligence provided at s 102(2) of the Act. This is consistent with the approach taken in relation to contingent damages in Brozinic.
75. For reasons described above, the risk of the trolley bumping into the gate, should it not open, was a risk that was obvious. This was the case, notwithstanding any expectation that the gate would open. In contrast to the shoppers who entered through the gate immediately before and after the plaintiff, the plaintiff did not pay attention to the state of the gate, and instead pushed her trolley towards the gate while looking up and to her right towards a display of biscuits. A reasonable person would have been aware of his or her surroundings, taken reasonable care for his or her own safety, waited for the gate to open and not inadvertently struck the trolley against the closed gate. This represented a failure of the plaintiff to take reasonable care, and the injury suffered by the plaintiff is partially because of this.
76. I therefore reduced the overall damages awarded to the plaintiff by 50% on account of her contributory negligence. In accordance with s 102 of the Act, I find that reduction is just and equitable having regard to the plaintiff’s share in the responsibility for the damage.
Damages
77. General Damages. General damages forms a large part of the plaintiff’s claim. The following facts were not in dispute.
78. The plaintiff suffered a serious injury and experienced immediate and significant pain, and that pain continued at least until her inpatient treatment at The Canberra Hospital. She continues to suffer brief and ad hoc shooting pain to her left foot on a daily basis, particularly when the injury site is exposed to cold temperatures or if she walks for more than 10 to 20 minutes.
79. The plaintiff underwent two surgical procedures, namely the debridement of the large wound site and a skin graft four days later. She attended Calvary Hospital Emergency Department on two occasions and spent 11 days as an inpatient at The Canberra Hospital.
80. The plaintiff has been left with a prominent, permanent, vulnerable and unsightly contour deformity on her shin. She is embarrassed by the sight of the deformity and avoids wearing dresses and is less socially active. She also has an extreme fear of re-injuring the site and avoids certain activities. She has been diagnosed with a clinical level of Specific Phobia. She experiences discomfort when climbing stairs, slopes, hills and ramps. With the agreement of her supervisor, the plaintiff’s employment duties have been adjusted to involve less site visits and inspections, and more desk work.
81. The injury site is without sensation and susceptible to further injury and the plaintiff has, at times, found blood on her sock.
82. It was submitted on behalf of the plaintiff that she should receive general damages in the amount of $100,000 with interest. Submissions for the defendant did not state a specific sum for general damages.
83. Taking all of the above facts into account, in particular the pain, surgery, hospital admission, ongoing pain and discomfort, embarrassment and phobia, I assess general damages at $80,000 (past 50%), and calculate interest at the rate of 4% for the three years on half of that amount at $2,500.
84. Past Out of Pocket Expenses. The parties agree that the past expenses amounted to $19,609.86. Accordingly I assess this component at that amount.
85. No claim for interest was made on this component.
86. Future Out of Pocket Expenses. The plaintiff claimed future expenses based on the regular use of Voltaren and Paracetamol. However, the plaintiff’s evidence was that she does not, and cannot, use Voltaren. Her Paracetamol use was estimated to be $0.60 per week. Using a 3% multiplier based on life expectancy provided in Britts, Comparable Verdicts in Personal Injury Claims, I calculate an amount of $500.
87. The plaintiff also sought the sum of approximately $6,000 as a buffer for future medical expenses. The various medical reports indicate that no further treatment is necessary. However, the reports by Dr Roger Pillemer, Dr Garth Eaton and Dr John Giles each noted that the injury site will remain more liable to damage than normal skin. Accordingly, I assess it would be appropriate to provide a modest buffer for medical expenses associated with such potential injuries.
88. Accordingly, I assess future out of pocket expenses at $5,000.
89. Past Economic Loss. The parties agree, based on the time the plaintiff had off work, past economic loss amounted to $5,000. Accordingly I assess this component at that amount.
90. Future Economic Loss. The plaintiff submitted that a buffer of $10,000 should be provided for future economic loss. The defendant submitted that there was no evidence of any impact on the plaintiff’s earning capacity since 2014, and that any future loss was speculative. I accept the latter submission and note that there is no evidence that the plaintiff’s injury and disability will lead to future economic loss. I assess this component as nil.
91. Domestic Assistance. There was no evidence that the plaintiff had received domestic assistance to date as a result of her injuries and disabilities. The evidence from the plaintiff and the report of Dr Eaton is that the plaintiff remained able to do her domestic chores, other than mowing. It was not clear on the evidence if the plaintiff ever did the mowing, or needed mowing to be done. Accordingly, I assess Griffiths v Kerkemeyer damages as nil.
Conclusion
92. In summary, I find liability established and award the following damages:
(a)General $80,000
(b)Interest on past component $2,500
(c)Past out of pocket expenses $19,609.86
(d)Future out of pocket expenses $5,000
(e)Past economic loss $5,000
(f)Sub-total $112,109.86
(g)Reduction due to contributory negligence 50%
(h)Total $56,054.93
Order
93. I make the following orders:
1. Judgment is entered for the plaintiff in the sum of $56,054.93.
2. The usual order as to interest, as described at r 1622 of the Court Procedures Rules 2006.
3. The defendant pay the plaintiff’s costs of the proceedings.
4. Order 3 does not take effect if within seven days of this order either party notifies my associate in writing that it wishes to be heard in relation to alternative orders as to costs.
| I certify that the preceding ninety-three [93] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate Theakston Associate: Taden Kelliher Date: 2 November 2016 |
ANNEX A
Extracts from the Civil (Wrongs) Act 2002
Part 4.2 Duty of care
42 Standard of care
For deciding whether a person (the defendant) was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant’s position who was in possession of all the information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose.
43 Precautions against risk—general principles
(1)A person is not negligent in failing to take precautions against a risk of harm unless—
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.
(2)In deciding whether a reasonable person would have taken precautions against a risk of harm, the court must consider the following (among other relevant things):
(a) the probability that the harm would happen if precautions were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the social utility of the activity creating the risk of harm.
44 Precautions against risk—other principles
In a proceeding in relation to liability for negligence—
(a)the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible; and
(b)the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which it was done; and
(c)the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in relation to the risk and is not of itself an admission of liability in relation to the risk.
Part 4.3 Causation
45 General principles
(1)A decision that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the happening of the harm (‘factual causation’);
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (the scope of liability).
(2)However, if a person (the plaintiff) has been negligently exposed to a similar risk of harm by a number of different people (the defendants) and it is not possible to assign responsibility for causing the harm to any 1 or more of them—
(a) the court may continue to apply the established common law principle under which responsibility may be assigned to the defendants for causing the harm; but
(b) the court must consider the position of each defendant individually and state the reasons for bringing the defendant within the scope of liability.
(3)In deciding the scope of liability, the court must consider (among other relevant things) whether or not, and why, responsibility for the harm should be imposed on the negligent party.
46 Burden of proof
In deciding liability for negligence, the plaintiff always bears the burden of proving, on the balance of probabilities, any fact relevant to the issue of causation.
...
102 Apportionment of liability—contributory negligence
(1)If a person (the claimant) suffers damage partly because of the claimant’s failure to take reasonable care (contributory negligence) and partly because of someone else’s wrong—
(a) a claim for the damage is not defeated because of the claimant’s contributory negligence; and
(b) the damages recoverable for the wrong are to be reduced to the extent the court deciding the claim considers just and equitable having regard to the claimant’s share in the responsibility for the damage.
(2)However, if the claimant suffered personal injury and the wrong was a breach of statutory duty, the damages recoverable by the claimant for the personal injury must not be reduced because of the claimant’s contributory negligence.
(3)If an Act or contract providing for the limitation of liability applies to the claim, the amount of damages awarded to the claimant because of subsection (1) must not exceed the maximum limit applying to the claim.
(4)This section does not defeat any defence arising under a contract.
(5)This section has effect subject to part 7.1 (Damages for personal injuries—exclusions and limitations).
...
Part 12.1 Occupiers liability
168 Liability of occupiers
(1)An occupier of premises owes a duty to take all care that is reasonable in the circumstances to ensure that anyone on the premises does not suffer injury or damage because of—
(a) the state of the premises; or
(b) things done or omitted to be done about the state of the premises.
(2)Without limiting subsection (1), in deciding whether the duty of care has been discharged consideration must be given to the following:
(a) the gravity and likelihood of the probable injury;
(b) the circumstances of the entry onto the premises;
(c) the nature of the premises;
(d) the knowledge the occupier has or should have about the likelihood of people or property being on the premises;
(e) the age of the person entering the premises;
(f) the ability of the person entering the premises to appreciate the danger;
(g) the burden on the occupier of removing the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.
(3)Part 7.1 (Damages for personal injuries—exclusions and limitations) and part 7.3 (Contributory negligence), other than section 102 (2), apply in relation to a claim brought by a person against an occupier of premises in relation to injury or damage.
(4)This section replaces the common law rules about the standard of care an occupier of premises must show to people entering on the premises in relation to any dangers to them.
(5)This section does not affect—
(a) other common law rules about the liability of occupiers to people entering on their premises; or
(b) any obligation an occupier of premises has under another Act or any statutory instrument or contract.
(6)In this section:
occupier, of premises, includes the lessor of premises let under a tenancy who—
(a) is under an obligation to the tenant to maintain or repair the premises; or
(b) could exercise a right to enter the premises to carry out maintenance or repairs.
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