Kalos v Goodyear and Dunlop Tyres (Aust) Pty Ltd
[2016] VSC 715
•29 November 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2014 04528
| MARYANNE KALOS | Plaintiff |
| v | |
| GOODYEAR & DUNLOP TYRES (AUST) PTY LTD | First Defendant |
| and | |
| VICTORIAN AUTOMOBILE CHAMBER OF COMMERCE | Second Defendant |
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JUDGE: | KEOGH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15, 16, 17, 18, 19, 22 August 2016 |
DATE OF JUDGMENT: | 29 November 2016 |
CASE MAY BE CITED AS: | Kalos v Goodyear & Dunlop Tyres (Aust) Pty Ltd & Anor |
MEDIUM NEUTRAL CITATION: | [2016] VSC 715 |
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TORTS – Negligence – Breach of duty of care – Plaintiff tripped on exposed and protruding metal plate in floor of workplace and suffered injury – Metal plate had been secured by screw which had worked loose, causing one end of plate to raise – First defendant’s failure to remove metal plate during refurbishment process – No system of regular inspection and maintenance of floor of premises – Risk arising from changes to features of the premises over time.
TORTS – Negligence – Breach of duty of care – Employer’s failure to respond to risk – Causation – Strong v Woolworths Ltd (2012) 246 CLR 182 distinguished.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Monti QC with Mr I Fehring | Slater & Gordon |
| For the First Defendant | Mr C Harrison QC with Mr G Coldwell | Wisewould Mahoney |
| For the Second Defendant | Mr P Hayes | Norris Coates |
HIS HONOUR:
Introduction
At about 12.30 pm on 27 July 2010 the plaintiff, Ms Kalos, was walking along a corridor in an office premises located at Level 2, 464 St Kilda Road, Melbourne (‘the premises’) when she fell and suffered injury to her right shoulder. The first defendant (‘Goodyear’) was the employer of the plaintiff and occupied the premises as tenant. The second defendant (‘VACC’) was the owner of the premises. At trial, VACC admitted that it was an occupier of the premises. In the proceeding, Ms Kalos claimed that there was negligence or breach of duty on the part of each of Goodyear and VACC which was a cause of the fall and her injury.
Goodyear commenced to occupy the premises in approximately May 2009. The premises consisted of a large office space comprising various individual offices, meeting rooms, common areas, open work areas, kitchen and staffrooms, toilets, showers, storage areas and corridors. There was a central lift and stair foyer. It was necessary to scan in at the doors leading from the foyer in order to access the general floor. Between 100 and 200 employees of Goodyear worked at the premises. The plaintiff was employed there from May 2009 as a customer service representative. Prior to Goodyear taking up occupation as tenant, it had arranged to have works performed to refurbish and alter, to some degree, the layout of the premises.
At the time she fell the plaintiff was walking along a central corridor at the premises. She had just passed the lift foyer and was walking towards the kitchen area. She claimed that as she did so her left foot caught in a protruding and exposed metal plate on the floor (‘the metal plate’), causing her to trip, fall forward and suffer the injury.
At some earlier time there had been double doors located across the corridor at the point at which the plaintiff fell. There was dispute between the defendants as to whether the doors were removed as part of the refurbishment undertaken by Goodyear prior to its occupation of the premises, or when refurbishment was undertaken for an earlier tenant. The metal plate was part of the door apparel left in place when the doors were removed. The building caretaker employed by VACC at the time of Ms Kalos’ fall, Mr Cameron Pritchard, called the metal plate a ‘floor door mount closer’ and described it as rectangular in shape, being about the length of an A4 piece of paper and about 12 centimetres in width, sitting flush with the surrounding carpet and secured to the concrete floor beneath by two flush-headed screws. Mr Pritchard said the metal plate was located slightly to one side of the corridor, and that close to one end of the metal plate was an associated item, a ‘door bolt holder’, which he estimated to be about 2 centimetres by 1.5 centimetres.
After the fall, Ms Kalos was taken to the first aid room at the premises. She then walked to the Alfred Hospital, where she received initial treatment. She said that later that day she returned from the Alfred Hospital to the premises, went back to the scene of her fall and observed that a screw at the left hand end of the metal plate was missing, which allowed that end of the plate to become raised. The plaintiff identified this as the reason that her left foot had become caught in the plate, causing her to trip and fall forward. The missing screw allegation was seriously disputed by counsel for Goodyear. The second major factual dispute related to the evidence given by Ms Kalos as to a conversation she said had occurred between her and Julia Peterson, the occupational health and safety coordinator for Goodyear, a short time after the fall. Ms Kalos gave evidence that she was walked to the Alfred Hospital by Julia Peterson, and a second employee of Goodyear, Tania Atkinson, and said that while they were at the hospital Julia Peterson said to her, ‘I knew we should have got that bolt put back in.’ Counsel for Goodyear submitted that this evidence was a lie by Ms Kalos, designed to improve her prospects of success in this case.
The plaintiff’s case against the defendants was put in three ways:
(a)Goodyear, via its occupational health and safety coordinator Ms Peterson, was aware prior to Ms Kalos’ fall that a screw was missing from the metal plate, causing it to be loose. The failure by Goodyear to respond to the missing screw was negligent, and was a cause of the plaintiff’s fall and injury.
(b)Each defendant was negligent in failing to remove the metal plate and door bolt holder when the doors were removed, or at some time prior to the fall.
(c)There was a failure by each defendant to implement a reasonable system for the inspection and maintenance of the floor of the premises and for the identification and removal of potential hazards, which was a cause of the plaintiff’s fall and injury.
Each defendant denied negligence and, in respect of arguments (a) and (c), causation. Contributory negligence was pleaded by each defendant, but no evidence was led which could support that pleading. If it became relevant, contribution between the defendants was in issue.
There were further disputes between the parties as to the assessment of general damages, and as to discounts which should apply to the assessment of future loss of earning capacity by reason of the usual vicissitudes, unrelated health conditions suffered by Ms Kalos, and the capacity of Ms Kalos to possibly return to some part-time work.
Background
Ms Kalos was born on 20 August 1957 and is now 59 years of age. At the time of trial Ms Kalos was a single woman with five children, the youngest of whom was still living at home with her.
Ms Kalos said she left school after completing Year 10, and then obtained employment with Advocate Press as a clerical trainee. The plaintiff subsequently performed clerical work for various employers. She first commenced work with Goodyear in November 1979 as a payroll assistant. There were breaks in the plaintiff’s employment relating to the birth of various children and a period when she was off work to care for her terminally ill mother. From December 2000 to July 2002 the plaintiff worked for TNT, where she says she was bullied and as a consequence suffered some psychological problems.
Ms Kalos returned to work with Goodyear in 2006, at premises in Church Street, Richmond. She was employed as a customer service representative. In May 2009 Goodyear moved that part of its operation to the premises at Level 2, 464 St Kilda Road and the plaintiff continued her employment there as a customer service representative.
At around 12.30 pm on 27 July 2010, the plaintiff was working at her usual station in the call centre at the premises. She wished to go to the toilet, and to get a glass of water. Carrying her glass, she walked along the corridor past the women’s toilet, turned right to walk along the central corridor past the lift lobby, then turned right again to go into a kitchen area, where she left her glass. The plaintiff then returned to the women’s toilet. She described what happened when she left the toilet as follows:
Q: And when you left the toilets, what did you do?
A:Came out of the toilet, turned right back into the corridor to continue to the kitchen to fill my glass with cold water.
Q:And can you tell the jury what happened?
A:I was walking back and I had only been there five minutes prior, walked through there. And before I made it to the kitchen my foot got stuck in something which I had no idea what it was, and put my outstretched arms as I fell, and hit the deck.
Q:Was it a heavy fall?
A:Yes.
Q:And after you hit the deck, where was your foot?
A:Still stuck in the door plate, in my shoe.
Q:Which foot?
A:My left.
…
Q:And your foot, your left foot, you said it was still stuck in the metal plate? How did you get that out?
A:I asked, ‘What am I stuck in?’ What — I can’t — I couldn’t get up because my right arm collapsed again. I tried to use, you know, my arms to get up, and I couldn’t get up. I said, ‘What am I stuck in? What am I stuck in?’ And a work colleague assisted getting my foot out of my shoe, and I was able to move both my legs then.
Ms Kalos was assisted to the first aid room, which was close by. She said she was in absolute agony and felt shocked and traumatised. She said she was provided with a sling, and was then led to the Alfred Hospital on foot by two employees of Goodyear, Tania and Julia. The walk to the hospital was very difficult, and she had to stop a few times and ask, ‘How much further?’. She was asked:
Q: And when you got to the hospital, what occurred?
A:We went into the emergency room at the Alfred Hospital where they asked me what had happened. I’ve had a trip at work I’d got stuck in and ———
Ms Kalos thought she was at the hospital for about five hours. First Tania had to leave to go back to work, then Julia left. She walked back by herself, and it was a long, painful walk. She was asked:
Q: What did you do when you got back to Goodyear?
A:I immediately looked at what, to see what I had tripped on, what my foot was stuck in.
She said that by the time she did that, most of the other employees had gone home. She was then asked:
Q: Can you tell the jury what you saw?
A:I was — I became shocked, angry that it was still left there, exposed for somebody else to fall on.
Q:What did you see?
A:Um, the plate. There was a bolt on the right hand side but no bolt on the left hand side of the plate.
Ms Kalos described the metal plate as being about a foot long and about four to six inches wide. Later she said:
And there was a bolt in one end and a bolt in the other end. Well, it should have been. There was no bolt in that left side. So I had put my foot, tapped it on the right hand side and it came up.
Ms Kalos explained that it was the left hand side of the plate which came up. She said that she then went to find Julia Peterson to get her or some other person to tape up the plate, to prevent somebody else having an accident. Ms Peterson was not there. She found an employee named John. After explaining the problem to him, John had said, ‘Oh, I thought that was done. I thought they’d fixed that.’ He then returned to the corridor with her and placed silver tape which covered the metal plate fully. The plaintiff was asked:
Q:And when it was covered like that, was it capable of being walked on and caused someone to trip?
A:No. It was only a temporary measure, though.
In cross-examination, the plaintiff confirmed that prior to her fall, as far as she was aware, the metal plate was not a potential problem, and she had never complained about it. She was then asked:
Q:And the evidence will be that no one else had ever complained about it either. Do you know anything about that? No one else had identified it was a problem, before your accident?
A:No.
Q:No, you agree with me, as far as you were aware, no one else had ever identified it as a problem?
A:No.
Q:No, you disagree with me?
A:No, I don’t know. To my knowledge, no one had.
Q:Ever identified it as a problem?
A:Identified that.
The plaintiff was then cross-examined about the history contained in her WorkCover claim form and in various medical reports, and it was put to her that the first recorded mention of the bolt by her was in a medical report of 11 May 2015. The WorkCover claim form, which was tendered in evidence, was completed by Ms Kalos and signed by her on 2 August 2010. It includes the following questions and answers:
Q:What happened and how were you injured?
A:Tripped on metal plate sticking up out of carpet. Shoe caught fell to ground onto right shoulder.
Q:What task/s were you doing when you were injured?
A:Walking to kitchen to get drink of water.
Q:What is the name and position of the person you reported the injury/condition to?
A:Julia Peterson — rehab spec.
Ms Kalos accepted that she probably had not mentioned the missing bolt to a number of doctors. It was put to Ms Kalos that the first mention of a bolt was in the history recorded by Mr Hartley in a medico-legal report following interview with her on 11 May 2015. The history recorded in that report, and put to Ms Kalos for her comment, included:
She reportedly walked herself to the Alfred emergency department with a manager, and this manager allegedly said, ‘I knew we should have had that plate fixed.’
Ms Kalos identified the manager as Julia Peterson. In relation to the alleged conversation with Ms Peterson, the plaintiff was asked in cross-examination:
Q:And what else do you say she said?
A:She said, ‘I knew we should’ve got that bolt put back in.’ And I said, ‘What bolt? What are you talking about?’
Q:Yes, anything further?
A:Yes, I suggested to her she should ring somebody and get it taped up so that no one else had an accident like me. And she made a call to someone in HR.
Q:Anything else she said?
A:Oh…
Q:At the emergency room?
A:‘He was at lunch. He’ll get it fixed.’ I don’t know to whom she was speaking to.
…
Q:I suggest to you, you are making all that up?
A:Well, I’m not.
Q:It did not happen?
A:It did happen. It was said. That was my purpose in going back after my accident from the hospital to have a look at what I actually had got stuck in.
Q:And?
A:And to my shock it was still exposed and left there for somebody else to have the same accident I had.
On the following day of the trial, counsel for Goodyear applied for leave to further cross-examine Ms Kalos. I acceded to that request. Ms Kalos was then asked:
Q:Ms Peterson will be giving evidence and she will say that she has no recollection of ever going to a hospital with you?
A:No recollection of going to hospital with me?
Q: That’s right?
A: That’s not correct at all.
Q:And she will say she did not say to you, “I knew we should have had that plate fixed,” at any stage ever?
A:No, what her words were, “I knew we should have got that bolt put back in.”
Q: She will say that she never said anything about bolts to you?
A: She did.
Q:And she will say that she had no knowledge of any issue with this plate prior to your accident, knew nothing about it?
A: Well, that’s the only way I found out about it.
Q: You didn’t find out about it by going and looking?
A:I found out when I – after the accident, when I went back and looked, walked through the doors to see what it was that my foot was stuck in, and - - -
Q:That’s right. So that’s how you found out about it. It wasn’t from someone mentioning it to you?
A:No, no, no. She had made a phone call to HR, and asked somebody to go and get it taped up and attended to.
Q: I suggest to you that is a complete fabrication?
A: No, it’s not.
Q: And is made up?
A: That is the truth.
Q: And is made up to improve your prospects?
A:That is the truth. Julia Peterson walked me to the hospital. She attended me in first aid before that, and with Tania Atkinson put the sling on and walked me to the Alfred Hospital, and stayed there for a period of time.
Ms Peterson was called by Goodyear and gave evidence later that day. She said that she had worked for Goodyear from November 2008 to February 2014, and that she had an office at the premises from May 2009. She was the occupational health and safety coordinator, and was the most junior employee in the occupational health and safety department. She spent 40 per cent to 60 per cent of her time at the premises, and she was otherwise out at one of the other 460 worksites of the business for which she had OH&S responsibilities.
Ms Peterson said that on 27 July 2010 somebody came to her office and told her of an incident involving Ms Kalos. She could not recall what time of day it was. She walked to the central corridor and saw a bunch of people standing around. She was asked how many people were there:
Q:Well is it less than a dozen or more than two or three?
A:At a pinch, between two and 10.
She thought Ms Kalos was sitting up on the floor when she arrived. She could not recall whether she had a conversation with Ms Kalos. She could not recall the identity of any other person there. She was asked:
Q:And what happened next after you arrived?
A:I’m actually not sure. I can’t remember.
Ms Peterson could not recall what became of Ms Kalos later that day, whether or not she had any dealings with Ms Kalos at any other location that day, or whether she went anywhere with Ms Kalos later on that day. She was asked:
Q: Do you recall having any conversation with her at all on that day?
A:I assume I spoke to her when I walked up to the corridor area, but I don’t know what I said or what she said.
Ms Peterson said that she could recall, somewhere between that day and a couple of days later, going to look at the probable cause of Ms Kalos’ fall. She was asked:
Q:What did you see?
A:There was a small eyelet on the floor. One of those ones where you push a door lock down into.
…
Q:So you saw that [the eyelet], and before seeing that, after you were aware of Ms Kalos’ fall, were you ever aware of any problem with that area?
A:I hadn’t seen any issue with that area before.
Q:Had anyone ever raised any issue with that area to you?
A:Not that I recall.
Q:Do you recall any conversation with Ms Kalos about the circumstances of her fall?
A:Not on that day.
In cross-examination, Ms Peterson said that she did not recall seeing a metal plate next to the eyelet. She clarified that the conversation with the plaintiff after the day of the fall related to the plaintiff’s return to work rather than to the circumstances of the fall. I conclude that the eyelet which Ms Peterson said she recalled was the second of the items identified by Mr Pritchard as being associated with the doors which had been removed, that is, the door bolt holder or ‘strike bolt hole’.
Cameron Pritchard was called by the plaintiff. He gave evidence that from January 2009 he was employed by VACC as the building caretaker at 464 St Kilda Road, Melbourne. After Ms Kalos’ fall, he received a telephone call from Ben Alexander, the office manager at Goodyear, advising him that somebody had had an accident and asking that he have a look at the area. He was asked:
Q: Did you have any discussion with Ben Alexander?
A:Yeah, just what we could do about the situation and my suggestion was to bring up some hazard tape to identify the area that I thought could have been a trip hazard so that’s what I did. I went and put hazard tape over the area.
Q:When did you do that?
A:Would have been a day or two after the accident — incident. Within a further day or two arrangements were made to remove the remaining door apparel, being the floor door mount closer and the strike bolt hole.
He attended and saw the initial stage of the metal plate being pulled out.
In cross-examination, Mr Pritchard agreed that he first attended the morning after the incident, being Wednesday 28 July. The plate was still there, and he could stand over it and look at it. He already knew it was there, but it had never been an issue before. Both the metal plate and the door bolt holder were flush with the carpet. The metal plate was held in place with two flush-headed screws, though he could not recall whether these were on the long sides or the short sides of the metal plate. He was asked:
Q:And when you looked at it, did you observe anything about those screws?
A:They looked okay to me.
Q:So all the screws seemed to be present?
A:To the best that I can recall, yes.
Resolution of factual disputes
Counsel for Goodyear submitted that the evidence of Ms Kalos as to the missing screw should not be accepted. He submitted further that Ms Kalos’ evidence as to the attendance of Ms Peterson with her at the Alfred Hospital and as to the conversation with Ms Peterson occurring there in relation to the missing screw was a lie by Ms Kalos designed to improve her prospects in the case. In support of that submission, counsel made the following points. First, it was unlikely that the missing screw evidence, if it were true, would have first been raised by Ms Kalos in a history given to a medico-legal doctor in 2015, almost five years after the fall. Second, the allegations as to the missing screw and the conversation with Ms Peterson were not pleaded or mentioned as part of the opening. No evidence in chief was led as to the conversation with Ms Peterson. This was said to make it implausible that the missing screw evidence and the Peterson conversation evidence were true. Third, if there was indeed a missing screw which caused her fall, the plaintiff would have taken steps at the time to make absolutely sure everyone was aware of it. She would have taken a photo of the metal plate, showing the missing screw, with her telephone. It would have been mentioned in the WorkCover claim form. Fourth, it is likely that Mr Pritchard’s first attendance was on the next morning, being 28 July, at which time, as far as he recalled, both screws were in place. This evidence should be accepted, and the most likely explanation was that the plaintiff was wrong when she said a screw was missing at the time of her fall.
Fifth, the evidence given by the plaintiff as to her conversation with Ms Peterson at the hospital was inconsistent with earlier evidence given in cross-examination set out at [14] above that, to the plaintiff’s knowledge, no one had previously complained about the metal plate or identified that it was a problem before her fall. Sixth, the fact that Ms Peterson had very little recollection of the events of the day in question was consistent with her having played a far more minor role than the plaintiff said she had. Seventh, there were two respects in which Ms Peterson gave evidence inconsistent with that of Ms Kalos. She said that she could not recall going anywhere with Ms Kalos on the day of the fall, which evidence was directly inconsistent with the evidence of Ms Kalos that Ms Peterson had accompanied her to the Alfred Hospital. Ms Peterson also said that she was not aware prior to Ms Kalos’ fall of any issue with the area in which Ms Kalos fell, which was directly inconsistent with Ms Kalos’ evidence as to what Ms Peterson had said to her at the Alfred Hospital on the day of the fall. Counsel for Goodyear argued that the rule in Browne v Dunn[1] had been engaged because counsel for the plaintiff did not cross-examine Ms Peterson in relation to either of these issues by putting to her the inconsistent evidence of Ms Kalos. In the circumstances, the evidence of Ms Kalos that Ms Peterson had accompanied her to the Alfred Hospital on the day of the fall and had made the comment to her as to the need to replace the screw in the metal plate should be accorded less weight and should be rejected.
[1](1893) 6 R. 67.
Eighth, it was submitted that Ms Kalos was unreliable in relation to other aspects of her evidence, in particular in relation to her pre-injury health issues and her previous employment with TNT, and that in the circumstances, the Court should be cautious about accepting the plaintiff’s evidence about the missing screw and the conversation with Ms Peterson.
For a number of reasons, I conclude that the evidence of Ms Kalos that a screw was missing from the metal plate allowing it to become raised and to trip her should be accepted. First, I found Ms Kalos to be a generally reliable witness who did her best to answer questions responsively. In relation to the exchange recorded at [14] above, I accept Ms Kalos’ explanation that she was there giving evidence about the state of her awareness before the accident, not about what she had learned from Ms Peterson shortly after the accident. There were some aspects of the evidence given by Ms Kalos as to her pre-injury health which contemporaneous records showed not to be entirely accurate. However, it is appropriate to make some allowance for Ms Kalos, given the time which has passed since the events in question and her obvious lack of familiarity with the court environment and process. In my view, the seriousness of the injury suffered by Ms Kalos in the fall would naturally dominate her historical perspective in relation to other health issues. I do not regard any of the matters raised by counsel for the first defendant as impugning the credit of Ms Kalos in relation to her liability evidence. I found the evidence given by Ms Kalos in relation to liability convincing.
Second, Ms Kalos was not challenged on her evidence as to the manner of her fall. She said that her left foot got stuck in the metal plate, causing her to trip and fall. It was not put to Ms Kalos that she stumbled, lost her footing, slipped, tripped or fell for some other reason.
Third, the fact that shortly after the fall the metal plate was covered with tape, and within days was removed, supports the conclusion that the metal plate was immediately identified as the cause of Ms Kalos’ fall.
Fourth, in the claim form completed by her on 2 August 2010, Ms Kalos identifies that her shoe caught on a metal plate sticking up out of the carpet causing her to trip. Other than the missing screw, there was no evidence given or hypothesis proffered as to any other reason for the metal plate to stick up and cause Ms Kalos’ shoe to become caught.
Fifth, the claim form records, and I accept, that Ms Kalos reported the fall to Ms Peterson on the day that it occurred.
Sixth, the approval of VACC expenditure form completed by Mr Pritchard relating to the cost of the removal of the metal plate and the door bolt holder following Ms Kalos’ fall records:
This is to fix old door floor mounts where someone had tripped.
Seventh, I do not accept that the evidence of Mr Pritchard of his recollection that the screws were in place when he looked at the metal plate mid-morning on the day after Ms Kalos’ fall (or possibly two days after the fall – there was some inconsistency in his evidence in this regard) is a basis for not accepting the evidence of the plaintiff that a screw was missing when she fell. I find that Ms Kalos reported on the day of the incident that the raised metal plate was the cause of her fall, and that later that evening she returned to the scene with a co-worker named John and saw him place silver tape over the plate. As far as Mr Pritchard recalled, there was no tape covering the metal plate when he first saw it a day or two after the fall. There was no evidence given as to when the tape was removed, by whom it was removed, or what if anything was done to the metal plate when it was removed. It is not possible to conclude that the metal plate and the screws were in the same state when Mr Pritchard observed them as when the plaintiff tripped and fell a day or two earlier.
Eighth, I do not accept that there was any failure by the plaintiff to report or record the fact of the missing screw which makes her evidence less plausible. Ms Kalos did report the fall to Ms Peterson. Further, Ms Kalos clearly identified as the cause of her fall that her foot was caught by the metal plate sticking up out of the carpet. Goodyear responded to that response by first covering the metal plate with tape. Had the cause of the plate sticking up been that it was bent or misshapen in some way, taping over it would hardly have been an appropriate response to the risk. When Mr Pritchard observed the metal plate a day or two after the fall, it was flush with the carpet. The response of taping over the plate and the observations of Mr Pritchard are consistent with the cause of the metal plate sticking up out of the carpet at the time Ms Kalos fell being that one of the screws holding it in place was missing. Goodyear, the employer in charge of the workplace, and responsible for occupational health and safety at the workplace, led no viva voce or documentary evidence challenging the evidence of Ms Kalos as to the cause of her fall or as to the state of the metal plate when she fell.
At this point, I will record a number of conclusions I have reached. First, Ms Kalos tripped in the manner described by her in the worker’s injury claim form, that is, by catching her shoe on a metal plate sticking up out of the carpet. Second, Ms Kalos reported the manner of her fall to Ms Peterson on the day that it occurred. Third, the cause of the metal plate being raised or sticking up out of the carpet was that a screw was missing from one end of it. Fourth, later on the afternoon of her fall Ms Kalos returned to the scene, observed that a screw was missing, and arranged to have her co-worker, John, place tape over the metal plate.
Neither the pleadings, the opening nor, in respect of the conversation with Ms Peterson, evidence in chief, contained any allegation that a screw was missing and that the defendant was aware of that fact. I do not, however, accept that this is a good reason to reject the evidence of Ms Kalos in relation to those issues. It is clear from the cross-examination of Ms Kalos that she had given a history of these facts to an examining doctor in 2015. When giving evidence, Ms Kalos gave answers which were responsive to questions asked. There is no reason to doubt that had she been asked about the missing screw or the conversation with Ms Peterson at an earlier stage, Ms Kalos would have answered as she ultimately did in evidence at trial. I do not accept that the lack of pleading, opening or evidence in chief in relation to these matters is indicative that the evidence given by Ms Kalos about her conversation with Ms Peterson at the Alfred Hospital was a lie.
Further, it is unlikely, if the evidence as to Ms Peterson attending the Alfred Hospital with her and as to the conversation with Ms Peterson was a lie by Ms Kalos designed to improve her prospects in the case, that it would have been introduced into the case in the way it was; that is, by being given as a history to a medico-legal specialist, then at trial by Ms Kalos giving evidence in chief that Ms Peterson accompanied her to the Alfred Hospital, and finally, in answer to questions in cross-examination by counsel for Goodyear by giving evidence as to the conversation with Ms Peterson. If Ms Kalos was lying in an attempt to improve the prospects of her case, she was leaving a lot to chance in the manner in which she introduced the evidence. It is far more likely that Ms Kalos simply did not give the evidence about her conversation with Ms Peterson until she was directly asked.
The rule in Browne v Dunn was recently considered in Pasqualotto v Pasqualotto[2] by Whelan JA, where his Honour said:
[2][2013] VSCA 21, [242]–[245], [247] (citations omitted).
The ambit of the rule in Browne v Dunn has expanded beyond the specific circumstance dealt with by the House of Lords in that case so as to encompass, not simply an obligation to put matters on the basis of which a submission was subsequently to be made that the witness was not to be believed, but any contradictory evidence proposed to be called and the ‘nature of the case’ proposed to be relied upon in contradiction to the witness’s evidence, including where that case relies upon inferences to be drawn rather than directly contradictory evidence.
A comprehensive analysis of the rule in Browne v Dunn was undertaken by Newton J in Bulstrode v Trimble. After a detailed review of the authorities, Newton J concluded that the rule in Browne v Dunn has two aspects. First, it is a rule of practice and procedure designed to achieve fairness to witnesses and a fair trial between the parties. The second aspect relates to the weight or cogency of the evidence. That is, evidence which is unchallenged ought to be accepted, or ought to be accepted in the usual case. This analysis of the dual character of the rule has been adopted in Australia ever since.
Newton J in Bulstrode observed that where the first aspect of the rule (fairness) was under consideration, the situation ‘in many cases’ could be remedied by recall of the witness or witnesses. That is less likely to be the case in criminal cases than in civil ones.
Newton J in Bulstrode made a number of relevant observations about the second aspect of the rule (weight). He observed that if evidence is unchallenged in cross-examination that will often be a very good reason to accept it; this, he said, is no more than common sense. Notwithstanding that, a tribunal of fact is not required to accept evidence because it has not been challenged in cross-examination, but the failure to cross-examine a witness as to a particular matter is something which ought to be taken into account.
…
This Court has confirmed that the rule in Browne v Dunn does not mean that contradictory evidence, which should have been put to the witness but which was not, cannot be considered; rather, it is a matter of weight for the Court to take into account.
There are two aspects of Ms Kalos’ evidence that counsel for Goodyear argued should have been put to Ms Peterson. The first related to the alleged attendance at the Alfred Hospital with Ms Kalos. Ms Peterson’s evidence was that she could not recall what became of Ms Kalos on the day of the fall, or whether she had dealings with Ms Kalos at any location other than the premises on that day. Counsel for Goodyear argued that had it been put to Ms Peterson that she attended the Alfred Hospital with Ms Kalos later that day, Ms Peterson may have been able to give cogent evidence to establish that it was unlikely that she attended with Ms Kalos at the hospital. The second related to the evidence of Ms Peterson that she had no knowledge of any issue with the area where the plaintiff fell, prior to the plaintiff’s fall. It was submitted that Ms Kalos’ evidence as to the attendance by Ms Peterson at the Alfred Hospital on the day of the fall and the conversation as to the missing screw should have been put to Ms Peterson to allow her the opportunity to respond. The failure to do so meant that the evidence of Ms Kalos as to the these matters should not be accepted.
The evidence of Mr Mandanici, a vice-president of Goodyear, is relevant to these issues. He attended the scene immediately after the fall. He recalled that somebody went to get Julia Peterson, and he saw her arrive. He said:
I made sure Ms Kalos was taken care of, and I left her in the care of Julia because obviously she was better equipped and has more expertise than myself.
When asked whether he made an enquiry of the plaintiff as to the circumstances of her fall, he said:
I left the majority — all of it, I left all of it in the hands of the occupational health and safety experts.
When asked whether he had seen what had become of the plaintiff after the fall, he said:
My — I left her in the hands of Julia and Julia advised me that she was taken to hospital and that was my concern.
He said he did not know how the plaintiff got to hospital or who accompanied her, but was then asked:
Q:Yes. Your expectation was that Julia Peterson would be in charge and would accompany the plaintiff to wherever she went?
A:Correct.
Counsel for Goodyear submitted that one reason Ms Peterson had no recollection of the events on the day was because she played a far more minor role than attributed to her by Ms Kalos, and that if it were true that Ms Peterson had Ms Kalos in her care and walked her to the Alfred Hospital while Ms Kalos was in considerable pain then that would be a traumatic experience which Ms Peterson would surely remember. That submission is inconsistent with the evidence of Ms Kalos and Mr Mandanici. It is also inconsistent with the role of Ms Peterson as occupational health and safety officer, to whom the fall was reported on the day. Very shortly after the fall Ms Kalos was placed into the care of Ms Peterson, whom Mr Mandanici described as the occupational health and safety expert. The fall was reported to Ms Peterson. Ms Kalos was in Ms Peterson’s care, had suffered a serious injury, and was in severe pain. She was taken by Ms Peterson to the first aid room, her arm was put in a sling, and arrangements were made for her to go to hospital. If that was not sufficient to keep the events of the day in Ms Peterson’s memory, it is unclear why the additional step of walking Ms Kalos to hospital and spending some time there with her would have done so. I conclude on the balance of probabilities that Ms Peterson did accompany Ms Kalos to the Alfred Hospital on the day of the fall.
It is consistent with Ms Kalos’ evidence as to the Peterson conversation that after she returned to the premises on the day of the fall and found the problem with the metal plate un-remedied, she went to find Ms Peterson. She found her co-worker, John, who said to her, ‘I thought they’d fixed that’, which is consistent with Ms Peterson having telephoned HR from the hospital with a request that the plate be fixed.
Ms Peterson had no recollection of the existence of the metal plate and no memory of what happened after she arrived at the scene of the fall or what became of Ms Kalos on that day, or what if any conversation she had with Ms Kalos on that day. She incorrectly identified as the possible cause of Ms Kalos’ fall the eyelet (or door bolt holder). The fact that Ms Kalos reported the fall to Ms Peterson on 27 July is confirmed by the worker’s injury claim form. In that form, Ms Kalos records that she tripped on a metal plate sticking up out of the carpet. It is likely that was the substance of her report of the fall and her injury to Ms Peterson on the day. Given the very poor state of Ms Peterson’s memory of relevant events, including as to the existence of the metal plate and it being identified on the day as the cause of Ms Kalos’ fall, the conversation with Ms Kalos on the day, what became of Ms Kalos on the day, and her attendance at the Alfred Hospital with Ms Kalos on the day in which the fall was reported to her, I conclude that the evidence of Ms Peterson that she had not seen any issue with the area in which Ms Kalos fell prior to her fall is unconvincing. If there was a failure of counsel for the plaintiff to put to Ms Peterson the evidence of Ms Kalos as to the conversation which she said occurred at the Alfred Hospital, it was not one which, on all of the evidence, significantly affects the weight of the evidence given by Ms Kalos. I conclude that shortly after the fall, while they were both at the Alfred Hospital, Ms Peterson said to Ms Kalos words to the effect, ‘I knew we should have got that bolt put back in.’
Negligence: Goodyear’s failure to respond to the missing screw
Counsel for Goodyear submitted that even in these circumstances liability is not established against Goodyear, because there is no evidence as to when the screw became loose from the floor plate, when Ms Peterson became aware the screw was missing, and what opportunity Goodyear had to respond. On this point, counsel for Goodyear called in aid the decision of the High Court in Strong v Woolworths Ltd.[3] It was argued that in contrast to the decision of the majority in Strong, because there was no evidence as to when Ms Peterson gained the knowledge of the need to repair the metal plate, there were no parameters to enable the Court to conclude that a reasonable response to the risk caused by the state of the metal plate would have resulted in a precaution being taken in relation to the plate prior to Ms Kalos’ fall.
[3](2012) 246 CLR 182 (‘Strong’).
For the following reasons, I disagree. First, the facts of the present case are quite different to those in Strong,[4] and are sufficient to distinguish it. Strong dealt with the reasonable system of cleaning required to respond to the foreseeable general risk that there might be food or drink spillage onto the floor in the food court area of a shopping centre. It was not a case requiring consideration of the reasonable response of an occupier once it had identified a particular spillage of food onto the pedestrian area of the food court floor. Because Strong was a general risk and system case, it was amenable on the facts to the time and probability analysis undertaken by the majority in the High Court. By contrast, in the present case I have concluded that the defendant, through Ms Peterson, had knowledge of a specific risk of a person tripping or coming to grief as a consequence of there being a screw missing from the metal plate, causing it to be loose and to require repair. The metal plate was located in the central corridor of the premises at which between 100 and 200 employees worked. It was a corridor traversed many times each day. An employer acting reasonably would have responded immediately to the risk identified by Ms Peterson.
[4](2012) 246 CLR 182.
Second, I infer from the words used by Ms Peterson, ‘I knew we should have got that bolt put back in’ that there was sufficient time for Goodyear to respond to the identified risk prior to Ms Kalos’ fall. The very words used by Ms Peterson are an admission that there was sufficient time for such a response to occur before the incident.
Third, I conclude that once Ms Peterson became aware that a screw was missing from the metal plate, action could have been taken almost immediately by the first defendant in order to prevent Ms Kalos’ fall. A sign or other barrier could have been placed over the plate. Tape could quickly have been placed over it, as was done when Ms Kalos raised the problem with her co-worker John late on the day of the fall.
I conclude that the failure by Goodyear to take steps to respond to the risk caused by the loose metal plate was a breach of its duty to its employee, Ms Kalos. A reasonable employer would have responded immediately to that risk by taping over the metal plate, providing some warning of the hazard, or repairing or removing the metal plate. I conclude that there was sufficient time to do so prior to Ms Kalos’ fall. Goodyear’s negligence in failing to respond to the risk caused by the loose metal plate was a cause of Ms Kalos’ fall and injury.
Negligence: failure to remove the metal plate
There was dispute as to when the double doors were removed from the central corridor, leaving in place the redundant metal plate which was ultimately the cause of Ms Kalos’ fall. Counsel for Goodyear submitted that it was likely the doors were removed by the previous tenant, Linfox, some years prior to Goodyear taking up occupation of the premises. Counsel for VACC argued that the removal of the doors was part of the work performed by Goodyear in early 2009, shortly prior to it becoming the tenant of the premises.
In examination in chief, Mr Pritchard said that he commenced working for VACC as building caretaker at 464 St Kilda Road, Melbourne, in January 2009. He said that at that time Linfox occupied the premises, and that after Linfox vacated and before Goodyear commenced in May 2009 to occupy the premises there were alterations to the structure and design of the premises. He then said:
To my recollection I believe (the doors) were removed while the refit was going on, prior to Goodyear moving in.
A number of plans of the premises were tendered in evidence. The first plan is dated 10 December 2002, bears the title, ‘Level 2 — Existing Con’s/Demolition Floorplan’, and depicts the double doors in place across the corridor. The next plan is dated October 2006, and bears the project title, ‘Proposed fitout’ and the drawing title, ‘Floor Plan / Workstations’. The client recorded on the drawing was Linfox Property Group. The doors are not depicted on that plan. Next is a plan dated December 2008 which bears the title, ‘Proposed fitout’. The drawing title reads, ‘Floorplan — Proposed Layout / Workstation Plan — Services Plan’. The final plan, which is dated February 2009, bears the title, ‘Proposed fitout’. The drawing title is ‘Floorplan / Demolition — Partition Works’. The double doors are not shown on either of the last two plans, which were related to the refurbishment work undertaken by Goodyear before it commenced to occupy the premises. After his attention was drawn to these plans, Mr Pritchard was asked by counsel for Goodyear:
Q:You said it would be helpful if you were to see the Linfox drawing. Having seen the Linfox drawing would you agree it seems likely that they took the doors out?
A:Possibly, yeah.
Q:That would suggest that Goodyear didn’t take them out?
A:Yes, yep.
Q:Having seen those drawings would you be comfortable with that, that Goodyear didn’t take them out?
A:Yes.
In cross-examination by counsel for VACC, Mr Pritchard’s attention was drawn to the fact that a number of the plans were titled ‘proposed’ plans. He was then asked:
Q:Would you accept what was proposed was dramatically different to what actually happened?
A:It was definitely different.
Mr Pritchard then said that he inspected the premises after Linfox departed, that his recollection was that the doors were still in place at that stage, and he repeated that he believed the doors were removed as part of the Goodyear refurbishment prior to it taking up occupation of the premises.
The extent to which any of the plans depict the actual features existing on the floor of the premises from time to time is unclear. I was not assisted by the plans in determining when the doors were removed from the central corridor of the premises. I accept the evidence of Mr Pritchard that the doors were still in place when he inspected the premises at the end of the period of occupation by Linfox, and were removed as part of the Goodyear refurbishment before it took occupation of the premises in May 2009.
The following further relevant facts are established by the evidence:
(a)From the time of the Goodyear refurbishment to the date of Ms Kalos’ fall there was no system of inspection or maintenance of the floor of the premises. Ms Peterson said that she, as the occupational health and safety officer, had not been instructed to carry out inspections. As far as she was aware there was no occupational health and safety committee operating at the premises. Mr Mandanici agreed that it was important to have a competent system for inspection and maintenance of the premises for the safety of employees, but that he was not aware of such a system operating prior the plaintiff’s fall.
(b)Between 100 and 200 employees of Goodyear worked at the premises in the period from May 2009 to the date of Ms Kalos’ fall. The fall occurred in a central corridor of the premises adjacent to the lift foyer and the kitchen, and close to the toilets. There was a high level of foot traffic in this area every day.
(c)There was no evidence of any incident or injury associated with the metal plate or the door bolt holder having occurred prior to Ms Kalos’ fall. In the period of occupation of the premises by Goodyear up to the date of Ms Kalos’ fall there had been no complaint made to Mr Pritchard relating to the metal plate or the door bolt holder, and he was not aware of an issue with either until he was notified after Ms Kalos’ fall. There is no evidence that anyone, apart from Ms Peterson, was aware of there being any issue or problem with the metal plate or the door bolt holder.
(d)Once the double doors were removed from the corridor, the metal plate and the door bolt holder were redundant.
(e)There is no evidence to establish when the screw in the metal plate became loose or when it came out of its position entirely. I have concluded that there was sufficient time after Ms Peterson became aware that a screw was missing from the metal plate to take steps to make the metal plate safe and thus prevent Ms Kalos’ fall. However, this might have been quite a short time.
(f)The system for repair of the floor was that if an issue or problem arose, such as worn or frayed carpet, an employee of Goodyear could tell office manager Ben Alexander. Mr Alexander would then contact Mr Pritchard, who would attend and place yellow and black hazard tape covering the worn and frayed areas of carpet. Mr Pritchard said he undertook this work as part of his duties as building caretaker employed by VACC, that he considered it his responsibility to look out for worn carpet if he believed it was going to be an issue, that each occasion he attended the premises to tape up worn carpet he did so in response to a request from Ben Alexander, that if he was entering a tenanted floor he would always try to see the office manager first, and that he would only enter the Goodyear tenancy in response to a request from Goodyear.
(g)Mr Pritchard was informed of Ms Kalos’ fall by Mr Alexander and was asked to look at the area in which she fell. He then attended and placed black and yellow hazard tape over the metal plate. After discussing the matter with the property manager at VACC, Mr Pritchard then arranged to have the metal plate and door bolt holder removed. This occurred three days after Ms Kalos’ fall. The cost of removal of those items was $121, plus some additional cost to carpet over the area.
Counsel for the plaintiff submitted that Goodyear should have removed the metal plate and door bolt holder at the time the doors were removed, and that it was negligent in failing to do so. Counsel for Goodyear accepted that on the breach analysis, the magnitude of the risk and the cost of addressing or attenuating the risk weighed in favour of the plaintiff. However, it was submitted that the degree of probability of the risk occurring was so low as to not require a response from Goodyear. This argument proceeded on the assumption that Ms Peterson was not aware prior to Ms Kalos’ fall that there was a problem with the metal plate which required repair.
The submission of counsel for Goodyear relied on the fact that for the 14-month period of occupation of the premises by Goodyear, there was no evidence that in this high-traffic area of the central corridor the metal plate or the door bolt holder had been the cause of any incident or injury or the basis of any complaint, or the cause of any difficulty to employees walking over it along the corridor. That evidence is supportive of a conclusion that so long as the metal plate was properly secured to the floor of the corridor, the probability of a worker tripping on it was low. However, I have concluded that the metal plate was not maintained in that secure state. Once one of the screws became loose, so that the metal plate was no longer held securely in place, the probability of a worker catching his or her foot in the plate and tripping became significant. Goodyear had no system of inspection and maintenance of the floor of the premises. The only system for repair was to respond reactively to problems once they had arisen and been identified. Examples include placing hazard tape over areas of carpet which had become frayed or worn, or removing the metal plate once it had become loose and caused somebody to trip. This system exposed workers at the premises to the risk of injury as the condition of the floor deteriorated with use.
The need for systems of regular inspection and maintenance in a busy workplace is in part to respond to the possibility that the condition of the workplace environment might, with heavy use, change or deteriorate over time, thereby giving rise to a risk of injury. The particular feature with which we are here concerned is a redundant metal plate, located in the floor of a high-traffic area of an office workplace, sitting flush with the surrounding carpet when held in place by two screws fixed into the floor. It was foreseeable that the condition of the metal plate might change or deteriorate over time with heavy traffic so as to create a hazard. Goodyear was aware that there was no system of inspection and maintenance of the floor of the premises to ensure that the floor was kept safe. The task of removing the metal plate was simple and the cost was low. An employer acting reasonably, having knowingly chosen not to implement a system of regular inspection and maintenance of the floor of the premises, should have foreseen the possibility that the redundant metal plate might become damaged or loose over time so as to give rise to a tripping hazard. The risk of the metal plate becoming loose might have been low, but I do not consider it to have been farfetched or fanciful. Once the plate became loose, it created a significant hazard for employees traversing the corridor, likely to be busily going about daily tasks without the expectation of such a hazard existing in the central corridor at the premises. The magnitude of the risk to such an employee was significant, and the burden of addressing or removing the risk was very low. An employer acting reasonably would have responded to the risk of injury associated with the floor plate by removing that redundant item when the double doors were removed or at some other time prior to Ms Kalos’ fall on 27 July 2010. Goodyear was negligent in failing to remove the metal plate, and that negligence was a cause of Ms Kalos’ fall and injury.
Counsel for the plaintiff submitted that VACC should have ensured that the metal plate was removed at the same time as the doors were removed by Goodyear. Counsel for Goodyear submitted that the premises and the metal plate belonged to VACC and that on that basis, if Goodyear was liable, then a finding should also be made against VACC.
For the following reasons, I disagree. First, the doors were removed, and the metal plate and door bolt holder left in place, by Goodyear. Second, once it took occupation, Goodyear had exclusive possession of the premises. Goodyear had control of the premises, and the system for repair of the floor of the premises was Goodyear’s system. Third, Mr Pritchard came onto the premises to undertake repairs from time to time, but always did so at the request of Goodyear. Mr Pritchard said that he would always try to see the office manager first before entering the premises. Fourth, prior to Ms Kalos’ fall, no complaint had been made to Mr Pritchard in relation to the metal plate. Fifth, it was not established that Mr Pritchard and VACC were aware that Goodyear had no system for inspection and maintenance of the floor of the premises.
The claim by the plaintiff against VACC was brought pursuant to s 14B of the Wrongs Act 1958, sub-s(4) of which requires that consideration be given to a number of potentially relevant factors when determining the issue of breach. In this case, the nature of the premises was a commercial office premises leased by Goodyear, and refurbished by it prior to it coming into occupation. The circumstances of the plaintiff’s entry onto the premises were that she was an employee of Goodyear. The likelihood of probable injury to the plaintiff arose by reason of things done or omitted to be done by Goodyear, that is, leaving the redundant metal plate in place when removing the doors as part of its pre-occupation refurbishment of the premises and subsequently, whilst in occupation, failing to implement a system of inspection and maintenance of the floor of the premises.
I conclude that there was no breach of the duty as occupier owed by VACC to Ms Kalos which was a cause of her fall.
Negligence: inspection and maintenance
Mr Pritchard said that the refurbishment undertaken by Goodyear in early 2009 did not include renewing the carpet on the floor of the premises, and that the same carpet which had been in place during the Linfox tenancy remained after Goodyear commenced occupation. A series of six photographs of different parts of the floor of the premises depicting black and yellow tape across areas of carpet was tendered in evidence. Mr Pritchard was asked:
Q:So on each of these photographs, the tape is there because you responded to a call from Goodyear, asking you to put it there. Is that right?
A:Yes.
Q:On the old carpet that they didn’t replace when they moved in?
A:Yes.
In relation to the same topic, Ms Kalos was asked:
Q: Tell the jury what you saw [Mr Pritchard] do?
A:I was around in — I had gone to admin and he was placing black and yellow tape on frayed carpet at one of the workstations, underneath one of the desks.
Q:What did you actually see him do?
A:He was down on the floor placing tape, black and yellow tape to cover a big section of fraying carpet.
Q:Did you see the carpet before he started to tape over it?
A:Yes.
Q:Why was it necessary as you observed it for him to have to tape over the carpet?
A:It was a tripping hazard. Her chair was getting caught in it when she — where she sat.
As already noted above, there were 100 to 200 employees working at the premises. Foot traffic in the central corridor, where the metal plate and the door bolt holder were located, was high.
I consider that in these circumstances, an employer acting reasonably would have implemented at the premises a system for regular inspection and maintenance of the floor. I conclude that it was negligent of Goodyear to adopt as a system the reactive repair of faults in the floor after they became obvious, and not to implement a complementary proactive system of inspection and maintenance of the floor.
Counsel for Goodyear submitted that there was no evidence upon which it could be established that the implementation of a system of inspection and maintenance would have led to the discovery, prior to Ms Kalos’ fall, that one of the screws in the metal plate was loose or missing. I agree. The evidence did not establish how frequently inspection and maintenance of the central corridor should have occurred, or for how long the screw had been loose or missing prior to Ms Kalos’ fall. It is therefore not possible to conclude that inspection and maintenance undertaken pursuant to a reasonable system would have prevented the screw from becoming loose, or identified that the screw was becoming loose or was missing prior to Ms Kalos’ fall. Whilst it was negligent of Goodyear not to institute a system of regular maintenance and inspection of the floor, I am unable to conclude that that failure was a cause of Ms Kalos’ fall.
Contribution
I have concluded that there was no breach by VACC of its duty to Ms Kalos as occupier of the premises. No issue therefore arises as to contribution to be determined between the defendants.
Stephanie Louise Kalos
Stephanie Kalos is the plaintiff’s daughter, and continues to reside with her. She gave evidence of the extent to which her mother’s activities had been restricted by the injuries.
Assessment of damages
Counsel for Goodyear submitted that an appropriate assessment of general damages was a figure of no more than $150,000. By contrast, counsel for the plaintiff submitted that, taking account of all that has befallen the plaintiff in the period of six years since the injury was sustained and the ongoing physical and psychological impact of the injury on the plaintiff into the future, it was appropriate to allow a sum of $300,000 for general damages.
The plaintiff suffered quite a severe traumatic injury to her right shoulder. As a consequence, she has required surgical intervention on two occasions and a manipulation under anaesthetic, in addition to extensive ongoing conservative management. Ms Kalos continues to suffer pain, restriction of movement and dysfunction affecting the right shoulder. I conclude that she is incapacitated from her pre-injury employment and from a range of domestic activities. Ms Kalos continues to require painkilling analgesic medication. She must perform an exercise regime very regularly in an attempt to maintain her current level of function. I accept there is some level of anxiety and depression suffered by Ms Kalos associated with her ongoing physical pain and debility. I conclude that an appropriate assessment of pain and suffering damages is the sum of $250,000.
Pecuniary damages
The parties have agreed past loss of earnings at a figure of $230,000 and future loss of earning capacity at a figure of $260,000. The only disagreement is as to the extent to which that latter figure should be discounted for the usual vicissitudes of life, and by any additional amount to reflect risks to future earning capacity as a consequence of the pre-existing and unrelated health issues suffered by Ms Kalos, and for the extent to which Ms Kalos retains a residual light work capacity and may be able to obtain some employment.
The plaintiff’s sick leave records are difficult to read. However, as far as I can tell, in a period of two and a half years from January 2008 to July 2010 the plaintiff took a total of 18.5 sick days. That amounts to about seven and a half sick days taken per year. There is no indication what these sick days were taken for, and whether or not they were all for ill health. That pattern of use of sick leave does not lead me to conclude that the identified unrelated health issues, being diabetes, migraine headaches, psychological issues, weight and diet issues and the vascular disorder affecting the left leg, were in the period to the date of the fall causing any significant interference with the plaintiff’s earning capacity. The plaintiff was affected by each of those disorders for a significant period of time up to July 2010.
I accept the assessment of Mr Li recorded in [82] above as to the plaintiff’s current and future capacity for employment. In other words, I conclude that the plaintiff has capacity for the performance of some light non-repetitive work duties at waist level or below, taking account of the fact she is likely to fatigue and suffer post-activity ache. I accept the evidence of Ms Kalos that when she was back working 21 hours per week for Goodyear she required frequent breaks to rest and exercise her shoulder, and that she suffered increased symptoms in her right shoulder as a consequence of performing that work. Ms Kalos described the work as speaking to customers on a telephone, operating a computer mouse and using a keyboard to input data. I accept that Ms Kalos was suffering exacerbations of pain and required time off work in the period prior to her employment being terminated. It is relevant to note that Goodyear elected to terminate Ms Kalos’ employment in December 2012.
Ms Kalos is now 59 years of age. Her capacity to perform work functions is clearly very limited. If Ms Kalos did manage to obtain work she would, because of her injury, be an unreliable employee. She would be limited to part-time work, and would likely require frequent breaks to stretch and exercise in an effort to cope with her injury. Having regard to Ms Kalos’ age, work history, injury and disability, I regard the prospect of any return to work as being low.
I consider it appropriate to apply a discount of 20 per cent to the future loss of earning capacity figure of $260,000 to take account of additional vicissitudes associated with the known unrelated health conditions suffered by Ms Kalos, and the low but now totally insignificant prospect of Ms Kalos returning to work. After discount, the award of damages for future loss of earning capacity becomes $208,000.
Therefore, the award of damages will be as follows:
General damages $250,000
Past loss of earnings $230,000
Future loss of earning capacity $208,000
Total$688,000
I will hear from the parties as to the appropriate form of orders, including as to costs and interest.
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