Kartinyeri v Woolworths (South Austrlia) Pty Ltd No. DCCIV-01-1952

Kartinyeri – v – Woolworths (South Australia) Pty Ltd
[2003] SADC 65
Judge Bright
Civil

On a date, about which there is some controversy, in 1995, the plaintiff says she slipped and hurt herself while shopping in the defendant’s supermarket at Murray Bridge. She, her two year old son Ethan, and her neighbour, Ethel Rigney, went to the supermarket together. Probably Ms Rigney drove them there in a car belonging to her employer, which she was entitled to use. The two women lived next door to each other. They wanted to get food for the evening meal.
It is not necessary to describe the store in great detail. Exhibit P3 seems to be a reasonable representation of the floor plan. A number of gondolas of merchandise, separated by aisles, run from the front to the rear of the store. On the right are the refrigerated gondolas. That closest to the right is low. The next one in is full height.
Running along the back wall on the right is the deli area. It consists of a chest-high display counter, with staff serving from behind it. Such staff look back towards the front of the store. In 1995, displays of cheese and of pre-prepared salads stood between the deli counter and the ends of the upright refrigerated gondola and other gondolas to its left. There was room (of unspecified dimensions) between those displays and the end of the gondolas. There was a gap of about 7 metres between the displays and the deli bar. There was also room for customers to pass up and down either side of the displays.
The display units were around 1m x 1.5m. That for salad had a stainless steel top with a lip about 100mm deep. Into it rectangular stainless steel salad containers about 400 x 100mm were placed. The display was refrigerated and had a built-in container into which spillages within the display area could drain. Above the display was a clear plastic “sneeze guard” with a shelf on which were placed plastic tubs and lids to be used by customers as they made their selections. Cheese was in a similar display alongside.
The plaintiff walked from left to right to pass the salad bar on her left. She says that, as she did so, her little boy, who had been with Ms Rigney at the deli, ran towards her. She turned to her left and, as she began to pass the salad bar, she bent down to pick him up. At that moment her left foot slipped forward about 30cms. Her right foot went back a little, but stopped against her son’s foot, or leg.
She did not fall, but she jerked her back in this sudden, unexpected manoeuvre. She felt a tearing pain at once. She was embarrassed. She looked only quickly at the floor. There was, she says, a bit of coleslaw, carrot and mayonnaise on the floor; it was about the size of a 20c piece. It was not such a large amount that its presence should have been obvious at once to the staff of the defendant. Nor was the plaintiff negligent in failing to see it.
Through it there was a skid mark in black, apparently made by her shoe. She produced her shoe – the sole was of a dark composition material and had a standard “outdoors” tread. Nothing about the nature of her shoes appears to have caused the slip. The floor was of black and white vinyl tiles in good condition. No defect in the floor, or in the way it was generally polished and maintained was suggested.
The plaintiff thought Ms Rigney had seen it, but she said she had not. The plaintiff thought she had directed Ms Rigney to the area, after complaining of the slip. Ms Rigney does not remember examining the floor. She does recall walking with the plaintiff past that area on the way to the checkout at the front of the store. She does not remember noticing the spilled spot of salad. She does not recall that Ethan had been with her and believes he had, at all times, been with his mother.
At the time, it must have seemed a trivial incident. It is not surprising that, after nearly 8 years, details are not clear. It must also be acknowledged that the plaintiff, though apparently honest and cooperative (indeed, apparently a very pleasant person), was not clear in her own mind about many details.
One very significant detail is the date on which the incident occurred – and I accept that it did occur. Proceedings were issued more than 3 years after any possible date. The plaintiff will require an extension of time, if she is to pursue the action. The evidence does not disclose who spilled the salad, or when. There is an evidentiary onus on the defendant to establish not only the nature of the system in place to prevent and to clean up such spills, but also that any such system was actually in efficient operation at the time of the fall.
The (now retired) manager of the store was Mr Robertson. He began to work for the defendant when he left school and “never had another job”. He is obviously a “Woolworths man”, but I feel no reason not to accept his evidence. He was careful and obviously knew what he was talking about. There was a general requirement that every employee was to watch out for spills or other dangers. If a spill was detected, the employee was either to clean it, or to stand guard while help to clean it was summoned. An apple could be easily picked up – a dropped and broken bottle of soft drink would require someone else to obtain cleaning equipment. Such a system is not enough in itself. The defendant had its premises cleaned each night by professional contractors, using appropriate sweeping and polishing machines. Nothing suggests a breakdown in that part of the system.
During the day each area in the store was swept (or mopped, if necessary) at two-hourly intervals, beginning with a clean up just before the store opened in the morning. The store was divided into a number of areas, such as “fruit and vegetable” and “deli”, each of which had its own manager, who was responsible for keeping that area clean. The salad bar was in the “deli area”. It was the manager’s task to instruct the particular employee within that section who was to sweep and clean. The defendant had special printed forms, called “sweep logs” in which, after each two-hourly sweeping, the person who did it would record the fact of doing it, the time, the name of the person who did it and whether anything out of the ordinary was noticed.
Mr Robertson said that he was constantly on the prowl. He examined the floor himself and made frequent, random checks in each area to see that sweep logs were properly written up (and, therefore, that sweeping was occurring as it should). Those sweep logs were kept for at least a year. Another witness (Mr Darroch) thought they were forwarded to the defendant’s safety department for review and analysis.
A significance of all this is that, if a claim is made against the defendant, it can obtain the sweep log for the relevant time and know whether sweeping was performed and, if so, how long prior to the alleged incident. It will give names of employees actually engaged that day in keeping premises clean. Such information can be of great assistance in dealing with a claim.
The plaintiff made no report to the defendant of the incident for some time, but, from some information retained in a computer by the defendant, it appears a report was made to Mr Robertson, the store manager, in November 1995. Data relating to this was entered into the computer on 24.11.1995. If the system operated normally, it is likely that the plaintiff would have completed a report in writing on a company form, probably with Mr Robertson’s assistance (probably he would have wielded the pen). It should not have taken more than a week for that form to be forwarded to Mr Darroch, the person in charge of claims, and for it to be entered in the computer.
The computer record indicates that the plaintiff informed Mr Robertson that the incident occurred on 25.10.1995. It would have been usual for the relevant sweep log to be attached to the injury notification form. If it had not been attached, Mr Darroch is likely to have asked for it. At that time it was, probably, readily available.
Mr Darroch must have opened a file, as the computer records a claim number. He now has no personal recollection of that. Sometimes he would arrange for an insurance assessor to investigate such a claim. Searching records of payments made by the defendant did not locate any sign that an assessor had been paid any money in respect of this incident. Probably no assessor was appointed.
The tone of a letter of denial of liability, responding to a letter of demand sent by a solicitor acting for the plaintiff, which was produced from that solicitor’s records, suggests to Mr Darroch that his denial was not simply a reflex, proforma denial, but was based on some sort of inquiry. He thinks he must have telephoned Mr Robertson and discussed the incident.
The brief computer record also indicates that Mr Darroch advised the defendant’s insurers of the claim. It does not appear that anything more than a formal notification was given. There is no evidence that either of the relevant insurers ever received from the defendant, or otherwise obtained, any other information.
The solicitor’s letter was met with a denial by letter from Mr Darroch dated 13.10.1997. Nothing further was received by the defendant until it received a letter from another solicitor dated 20.11.2001, a little over four years later. In the meantime, the defendant had closed its file. That occurred on 22.3.1999, more than three years after the date claimed for the incident.
Mr Darroch said that it was not uncommon to hear nothing more after liability for a claim was denied. His practice was to keep such a claim file open for three years after the date of an incident. Then, during about the next year, such files were closed and stored in archive boxes in a room near his office. The intention was to retain them for a total period of seven years.
In this case, the bulk of files became too much and it was decided to store the archive boxes in large cardboard furniture removalists’ boxes. These boxes had a note on the outside of the files they contained. They were then stored, several layers high, at warehouse premises. Inevitably, there was a disaster. The weight of the upper boxes caused the lower boxes to collapse. Files spilled. When, eventually, an attempt was made to sort out the mess and to re-pack files, not everything was neatly in place. Files were broken up and not all files were found.
On 20.11.2001 the second solicitor’s letter of demand was received. Mr Darroch caused searches to be made for the old file. It could not be located. If the claim had been pursued with proper expedition, it is not likely the file would have been lost. Thus the only record is the defendant’s brief computer “screen dump”. The defendant says it has suffered irremediable prejudice in its defence, because it does not have the original claim form/notification and it does not have the sweep log.
In some circumstances that could be a serious matter. In this case, I do not think it is. The alleged spill was very small. It does not appear that anyone noticed the plaintiff slip. At about three years after the incident, when proceedings could have been commenced and served, it is wildly improbable that any of the defendant’s staff would have had any recall of anything about it. The plaintiff may have suggested that Ms Rigney saw it – but does not suggest anyone else did. It is not likely that there ever were other witnesses to be found.
If an exact time for the incident were known, the relevant sweep log might indicate that the floor was cleaned only moments earlier, which could be very relevant. It might record someone cleaning it up. In this case, the defendant’s computer record does not record a time, perhaps because that part of the claim/notification was not completed.
But, of greater importance, there is great doubt whether the defendant even had the right day. Its original record was of 25.11.1995. The first solicitor’s letter, dated 2.10.1997, referred to an incident “on or about 20^th August 1995”. At that time the sweep logs for August 1995 may have been obtainable, though that is not certain.
The plaintiff’s second solicitor referred to that date when re-opening the claim by letter of 20.11.2001. It was at that stage that it was ascertained that the file was lost. Proceedings issued on 20.12.2001 again referred back to that date. Only in the course of the trial was application made to amend it to 6^th October 1995.
That date is a reconstruction. Neither the plaintiff, nor Ms Rigney actually recall the date. It is based on their shared recollection that the plaintiff gave her son a party on his second birthday on 20.9.1995. For that party, the plaintiff put up streamers and balloons, an activity she says she could not have performed in the months after the incident. Obviously, no sweep logs are available now for that date.
This odd sequence of events leads me to conclude that, after the incident there was probably never any significant information and that such information as might have been kept would, in the end, have turned out to be of little relevance. Thus it seems to me that delay in bringing the proceedings has not caused prejudice to the defendant through loss of its file.
At the time, the defendant carried the first $50,000 of claims against it. The excess over that was borne by two insurers, one of which was H.I.H. It was faintly put that the notorious fate of H.I.H. has meant that claims which would have been met years ago will not now be met, or not be met in full. No evidence about H.I.H.’s position was led. In particular, it was not established that a claim commenced at about the three year limit and then prosecuted with reasonable diligence would have come to judgment at a time when H.I.H. was meeting its claims. If that sort of prejudice is, legally, a relevant matter, it was not made out on the facts.
However, insofar as an inference adverse to the defendant might be open if it failed to call evidence available to it that its cleaning system was, in detail, actually in efficient operation, in the sense of proving specific sweepers and sweepings around the time of the incident, I find that that evidence is not reasonably available to it and will not make any adverse finding on that basis.
The relevant evidence is evidence available from Mr Robertson, who was clear and definite about the systems in place. There is no prejudice to the defendant in standing or falling on that evidence.
The plaintiff’s application for an extension of time is brought pursuant to S.48 of The Limitation of Actions Act. She first faces the threshold point of establishing that she first learned of some new material fact out of time but less than a year before issuing proceedings. She was sent off for the usual medical examination and so learned that Mr Johnson diagnosed her as having a permanent disability in her lumbar spine with a 20% loss of function of the lumbar spine. It is contrived, but it is sufficient. Having cleared that hurdle, she has to establish that the justice of the case requires the court to extend time (perhaps to a limited extent, or on terms).
That is a familiar balancing exercise. The plaintiff has (or had) an arguable claim in respect of significant injury. If she is not permitted to pursue it, the hardship to her is obvious. Perhaps, if she cannot proceed here, she may be able to effect recovery from her first solicitor. It is not unlikely, but I do not know how the claim came to get out of time, though there is no evidence that it was attributable to fault of the plaintiff. From the defendant’s point of view, having to meet a claim it thought it had escaped is not relevant. I have found that the proved loss of its file, which might have contained relevant evidence or suggested avenues of inquiry, did not, on the facts of this case, give rise to prejudice. The passage of time and the fading of memories is not, in the absence of some special circumstance, a relevant prejudice. No known witness has forgotten, died, or gone missing. In the exercise of my judicial discretion, I think it just to extend time, and do so to the extent necessary.
I discussed with counsel whether that should be on terms and suggested that a term might be that the plaintiff could not ask me to draw an adverse inference in respect of evidence not called because the file was lost. One view was that “terms” in this section refer to terms as to costs, rather than more general terms. It is not necessary to rule on this in this case, as I have decided not to draw any such inference for reasons not related to extension of time.
I come back to Mr Robertson. I have set out the effect of some of his evidence. There was a regular, formal requirement to sweep or clean the floor every two hours, and to record that it had been done. The manager of each area was responsible for that area. Each employee had to keep a look-out. Mr Robertson (and his second-in-charge) prowled the shop, looking themselves at cleanliness and also checking the sweep logs. No evidence suggested that that system was not, in general, adequate and appropriate.
Counsel for the plaintiff seeks to make a more detailed criticism. He begins by asserting that it is in the nature of things that customers who serve themselves at a salad bar will sometimes fill their plastic tubs to the greatest extent possible. Although it might be usual for a customer to fill his or her tub under the sneeze guard and over the salad bar (where spills will be caught) some may fill tubs held outside the perimeter of the salad bar and may drop food in doing so. He speculated that fitting a snap-on lid to a full container of salad is likely to be done outside the perimeter; the lid is obtained from above the sneeze guard. That could cause some spills. All of this, he suggested, was readily foreseeable. At least many of the salads had sauces or dressings, so any spills were likely to be slippery.
Mr Robertson told me that the store bought in ready prepared salads from outside suppliers. In an area behind the deli counter staff filled salad containers and took them out to the salad bar, replacing containers as occasion arose. Not all containers removed would necessarily be empty or have clean edges. There was, it seems to me, a potential for spills in the course of this process, though such spills were likely to be noticed by the employee concerned.
Mr Robertson confirmed that, a year or so after the incident, health regulations changed and clear perspex doors had to be fitted between the upper perimeter of the salad bar and the lower perimeter of the sneeze guard. He said that that had nothing to do with spills. Speaking for myself, that seems a reasonable explanation. I draw no conclusion that the change suggested earlier problems with spills.
He also confirmed that, about 6 years later, in 2001, the salad bar was removed altogether and salads were thereafter served to customers by staff from behind the deli counter. He denied that that had anything to do with spills. It seems to have been a change made to all of the defendant’s stores. Certainly this would prevent spills in the public area, but I accept that it is not established that the defendant changed because of spills. It is established that a different system was feasible and would have been feasible at the time of the incident.
On the left of the store, as one enters, was the fruit and vegetable area. That was also a self-service area. Mr Robertson accepted that spills, or dropped bits of vegetable material were regular enough to call for special measures. In that area runners of rubber backed synthetic carpet were placed. They were changed weekly. The store had two sets of such carpets, one for immediate use and one to be at the cleaners. That not in use might, I infer, be back at the store some days before it was needed. Thus, at times there was carpet available and not in use at the store. It appears that there was also some spare carpet, which Mr Robertson said was occasionally laid in other areas, if he saw a need – e.g. in the bakery section at Easter, when customers would access and eat buns with fruit, which fruit was prone to drop on the floor.

Mr Robertson told me that his use of carpets, and the sort of carpets he had, accorded with a policy applicable to all of the defendant’s stores. Similarly, the absence of carpet at salad bars accorded with the defendant’s general policy. He agreed that there was no physical or financial reason why such carpet could not have been used in the vicinity of salad bars. If he had perceived a need, he could have arranged for carpet to be laid. Mr Beazley, Q.C., for the plaintiff, suggested that, just as extra staff patrolled the fruit and vegetable area, because it was known that items were dropped there, if mats were not to be used by the salad bar, then more frequent cleaning or more careful and frequent inspection was called for. Mr Robertson agreed that that could have been done, but said that he had not thought it necessary.
Mr Robertson said that, based on his lifetime of experience with the defendant generally, and on his years as manager of the Murray Bridge store, he had not been aware of any other cases of people slipping on spilled salad. I accept that he would have known of any claim and would have known of any regular problem with spills. He agreed that, infrequently, salad was dropped onto the floor by customers. He was aware of that possibility, but did not assess it as a danger calling for permanent use of mats. I accept counsel’s contention that, just as he was, until it was reported, unaware of this incident and this spill, there could have been others. But that is a long way from proof that there were.
Should Mr Robertson, or, more accurately, should the defendant, with the benefit of all of the experience of its staff at all of its many stores, have regarded the possibility of salad spills as being significant enough to call for action, by putting down carpet, or by removing the salad bar altogether, or by more detailed or frequent inspection?
It is clear that the court must exercise its own judgment in deciding whether a defendant was negligent. That is so even where a defendant is alleged to have fallen short of a high technical standard – such as that applying to a specialist medical practitioner. Here the practices relating to the salad bar seem to have been those applicable to the defendant’s stores generally. The expertise and experience of an entity like the defendant in managing supermarkets is not to be dismissed lightly. Here the criticism is not of some casual failure of an otherwise adequate system, but that the system deliberately chosen was inadequate.
One proved instance of a very small amount of food on the floor, when no-one knows how it came to be there, is not, in itself, proof that the system was inadequate. After such an event, the light of hindsight always burns brightly and it is often possible to point to arguably better systems.
If, as suggested, the easy solution was to lay non-slip carpet, how extensive should that be? A single runner around the salad bar would probably have caught this spill, which seems to have been close (though the distance was not deposed to and the width of runners is not known). However, if the spill was from an overfilled container, such a container placed in a shopping trolley could also drip anywhere else. If it came from staff re-filling, or removing containers, should carpet cover the whole route, at least through public areas from the bar to the preparation area? Do such mats, in an area where customers are not used to them create any risk of tripping? I readily accept that an entity like the defendant, which trades on the busy and distracted presence of millions of customers in hundreds of stores, must take great care for the safety of those customers. Amateur standards which might suffice for a small corner shop fall short of what must be expected of the defendant.
Did the defendant fall short? Mr Robertson obviously thought it did not. The practice criticised was the defendant’s standard practice. Despite that, I could still conclude that it fell short. However, it is for the plaintiff to prove that. In my view she has not. I do not find negligence or other breach of duty proved. In case I am wrong, I shall consider quantum, though not in as much detail as otherwise I might have.
As she slipped, the plaintiff felt a sharp pain in her lower back. She and Ms Rigney hurried home, probably in the car I referred to. That evening the pain increased. Ms Rigney, as she had often done before, had Ethan to stay. The plaintiff retired to bed for most of the weekend. She believes the incident was on a Friday afternoon. On the next Monday she sought medical help.
The date of 6^th October for the incident is supported by her general practitioner, Dr Thompson, who says he first saw her on Monday 9^th October 1995, complaining of left sciatic pain after a fall while shopping. Dr Thompson gave evidence that he believed there was some unspecific soft tissue injury to the lower back. It appears that he referred her to Dr Ghan, an orthopaedic surgeon, on a couple of occasions. He came to the same conclusion. Conservative treatment, with physiotherapy and “moral support” has followed and has been extensive. On three occasions the pain has been so bad that the plaintiff has had epidural injections. She seems to have spent much of the month after the fall in hospital, resting.
Messrs Potter and Johnson, surgeons, have reported to generally like effect. The prognosis is that the plaintiff will cope with most things she wants to do, but will need to be a bit careful. She should minimise bending, lifting and twisting. She will remain prone to intermittent exacerbations of her pain.
As a young adult the plaintiff was keen on sport, particularly netball, and played regularly. She was good at it. It is reasonable to expect that she will play little, if any sport in the future. Over the last eight years she has played none.
She believes that, because of inactivity following the incident, she has put on a lot of weight. I accept that that is her honest belief, but various medical records belie it. She put on weight before the incident – indeed, just before the incident she was a fraction heavier than she is now. She would like to lose some weight: her back makes this more difficult, but I do not think it prevents it. The plaintiff finds it hard, as do most of us, but the incident is not the main cause. She has been depressed at times, partly through pain and frustration with her back and partly through dissatisfaction with her weight. I do not conclude that that was at a pathological, or clinical level – rather that it was a perfectly normal reaction to her situation.
She has needed some help in managing her house – to the extent that she moved to an easier house with a smaller garden. She used to enjoy gardening. She still cuts a small lawn with a power mower. Ms Rigney has been a good friend for a long time. Before the incident she and the plaintiff were often in each other’s houses and often helped each other. Ms Rigney has continued to help when she is at Murray Bridge, though she no longer lives there. Ethan’s father does not reside with the plaintiff, but frequently stays there for several days. He also helps. There has been a need for more help than was given before the incident. No records have been kept (and I am not surprised by that). It is all rather vague. I shall allow for about an hour per week for 5 years at $10 per hour, which gives $2,500. I do not make any allowance for the future, as need precipitated by the incident has now merged into habit and lifestyle.
For past pain and suffering, I would allow $20,000 and for future $10,000.
All her adult life she has been a good worker in a variety of jobs. Most of them have been with the local aboriginal community. Without wishing to sound patronising, they have been proper, useful jobs, rather than the limited, rather artificial employment one sometimes sees. I think her favourite job is as a child care worker, which is what she does now. She is well on the way to obtaining tertiary qualification. She believes that, on graduating, she has good prospects of employment as a director of child care. In such a position she will do far less of the physical child care work she now does and far more administration, with which her back will not interfere much.
She has worked for a sobriety group, spending long, regular hours looking after young people with problems. She has been a seamstress. She has been curator of an art gallery (demonstrating good administrative skills). She impresses me as being a person who would be reliable and who would be well regarded by her employers.
I therefore believe that her future prospects are good, but I must allow for the chance that there will be times when exacerbations of her back keep her from work (in circumstances where she will not be paid) and for the chance that there will be work opportunities which she would otherwise have pursued, but which she will not now take up.
There are some fairly clear periods over the last 8 years when she has been unable to work, but mostly she has done much what she would have done. There is a reasonable argument that her practical and academic progress to the qualification of a director of child care has been put back by a few years. That may have cost her a few thousand a year. Generally I think she has worked with supportive employers who have cooperated with her when she has had trouble. When she has lost good jobs, such as curator of a gallery, it was when funding ran out, rather than because she was not wanted.
Mr Beazley, Q.C., addressed me on figures taken from taxation and other records, submitting that they demonstrated actual losses of income of about $22,000, to which should be added more for the chance that she would actually have done better, for example by qualifying earlier as a director of child care. He suggested an overall, broad axe figure of $30,000 for the last 8 years. I accept that there is no chance of mathematical precision in this case. I think his estimate is as good as any that can be made and assess past loss of earnings and earning capacity at $30,000.
For the future, I allow $25,000 for loss of the chance to exercise earning capacity which she would otherwise have used. I refer again to the estimate of a 20% loss of use of the low back.
Past special damages are extensive. There has been a lot of chiropractic treatment. It is arguable that so much chiropraxy , in addition to extensive physiotherapy, was more than was necessary. However, it has not been proved on the evidence. The quantum for all special damages was agreed, as to amount, appropriateness of rate charged and that the item charged for was performed. That the need for those services was reasonably caused by the incident was not conceded. It seems to me that the perceived need for them clearly arose from the consequences of the incident. The real complaint is that the plaintiff should have mitigated her loss by not having so much treatment. The onus of establishing that is on the defendant, and, in my view, it has not succeeded. The figure agreed is, in total, $4,546.15.
The plaintiff will need intermittent treatment in the future, including analgesics, physiotherapy and, perhaps, more active treatment at times of particular exacerbations. Again, without going into detail, Mr Beazley, Q.C.’s submissions that $4,000 to $5,000 would be appropriate seems fair. I allow $4,500.
I summarise the figures:
Pain, suffering and other non economic loss
         Past  20,000.00
         Future  10,000.00
Economic Loss
         Past  30,000.00
         Future  25,000.00
Special Damages
         Past    4,564.15
         Future   4,500.00
         Beck v Farrelly allowance    2,500.00
  Total          $96,564.15
Should it become necessary, I will hear the parties on interest.
For the reasons I have given earlier, the plaintiff’s case must be dismissed.

[2003] SADC 65

8 May 2003