Kelson v Northern RR Pty Limited

[2009] NSWDC 316

CITATION:	Kelson v Northern RR Pty Limited [2009] NSWDC 316
HEARING DATE(S):	20-21 October 2009
EX TEMPORE JUDGMENT DATE:	23 October 2009
JURISDICTION:	District Court - Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1. Verdict and judgment for the plaintiff in the sum of $232,065. 2. The defendant is to pay the plaintiff’s costs of the proceedings. 3. The exhibits are returned. 4. These orders are suspended for seven days in the event that the plaintiff wishes to raise the matter of care gratuitously provided to the date of the hearing.
CATCHWORDS:	OCCUPIER'S LIABILITY - Slip and fall in fast food restaurant - Adequacy and implementation of cleaning system - Apparent absence of complaint of ongoing symptoms - Whether plaintiff required to alter lifestyle to diminish requirement for domestic care
LEGISLATION CITED:	Civil Liability Act 2002
PARTIES:	Helen Janet Kelson (Plaintiff) Northern RR Pty Limited (Defendant)
FILE NUMBER(S):	72/08
COUNSEL:	T R Edwards (for the Plaintiff) M Vesper (for the Defendant)
SOLICITORS:	Bale Boshev Lawyers (for the Plaintiff) Sparke Helmore Lawyers (for the Defendant)

JUDGMENT

1 After work on 3 April 2007 Helen Janet Kelson went shopping with her daughter Hayley at the Waratah Shopping Centre. Having finished their shopping the two women decided to dine at the defendant’s premises, a Red Rooster restaurant within the shopping centre. While walking from their table after finishing their meal the plaintiff slipped on chips that were on the restaurant floor. She claimed that those chips were on the floor as a result of the negligence of the defendant. She claimed that she suffered injury to her right knee as a consequence of her fall.

2 The claim was brought under the provisions of the Civil Liability Act 2002. It was not questioned that the defendant owed a duty of care to the plaintiff; that the risk was foreseeable, not insignificant and that a reasonable person in the defendant’s position would take precautions to prevent the risk of harm. The issues dealt with the question of whether the precautions that were taken by the defendant were adequate. Those precautions involved a system of inspection and cleaning of food spillages. If the system was adequate the question was whether that system had been implemented. If it was not observed, the issue was whether the failure to observe the system was such that the defendant breached its duty of care to the plaintiff.

3 There was also an issue concerning the extent of the plaintiff’s injury and the extent to which she was to be compensated for non economic loss, loss of income earning capacity and the cost of securing assistance with home care.

THE SYSTEM

4 Jenae Hancock, the defendant’s duty manager at the time of the plaintiff’s fall, described the inspection and cleaning system for the defendant’s premises comprised as follows:

1. Responsibility for periodic inspection and cleaning was assigned to a particular member of staff. At the time of the plaintiff’s fall, one of the two cashiers employed in the restaurant was given this responsibility. One of those cashiers was stationed in a drive by section of the restaurant, the other within the restaurant itself. It was the responsibility of the cashier in the restaurant to undertake the inspection and cleaning role. The cashier on the drive by section relieved the second cashier to allow this to be done.

2. The periods between inspection and cleaning varied according to the numbers of patrons in the restaurant. At the time of the plaintiff’s fall, it was undertaken at intervals of 30 minutes.

3. The restaurant manager, or in his or her absence the duty manager, inspected the premises after each clean up and signed a check sheet. At the time of the plaintiff’s fall Ms Hancock was the duty manager. The store manager was not present.

4. The check sheet was signed by the responsible manager at the end of each shift, placed in the office and the check sheets were sent weekly to head office.

5. If a spill was reported it was to be attended to immediately.

ADEQUACY OF THE SYSTEM

5 This depended upon the numbers of patrons within the premises at a particular time. If there were significant numbers of persons in the premises, the evidence indicated that the system had two weaknesses.

1. The increased number of patrons increased the foreseeable risk of hazard to those patrons because of the likelihood that food would be dropped at greater frequency to the floor.

2. Both cashiers were likely to give greater priority to taking orders than to undertaking their cleaning responsibilities.

6 Ms Hancock’s evidence was that later in the evenings, at about 10.30pm when the restaurant was busy, cleaning was undertaken at ten to fifteen minute intervals. There was no evidence of how these intervals were determined in the course of various shifts, whether they were set at the discretion of the duty manager or predetermined based upon the general experience of customer numbers. Ms Hancock said that the interval of 30 minutes set at the time of the plaintiff’s fall was established because the incident occurred on a Tuesday which was not normally busy at the time of the day when the plaintiff and her daughter entered.

7 The evidence of the plaintiff, her daughter and an independent witness, Ms Davies, suggested that at the relevant time there was a significant number of patrons on the premises ordering and waiting for their orders to be supplied.

IMPLEMENTATION OF THE SYSTEM

8 It was apparent from the evidence that the system was not implemented at the time of the plaintiff’s fall. The precise time of her fall was a matter of contention but the incident report form exhibit 3, completed by Ms Hancock, stated that the incident occurred at 6.40pm. I accepted therefore that the incident occurred within one or two minutes either side of 6.40pm.

9 On the same form it was reported that the area was last cleaned at 6pm and inspected at 6.10pm. Ms Hancock was initially insistent in her evidence that the area was cleaned at 6.30pm and inspected by her immediately thereafter. She claimed to have a specific memory of this and to remember specifically that the restaurant floor at the time of her inspection was spotlessly clean. On this basis, it was suggested for the defendant that the spill must have occurred within five to ten minutes of the last clean up and inspection.

10 Shown the incident report form, Ms Hancock conceded that the floor was not in fact cleaned at 6.30pm. The only evidence relating to the cleaning of the floor indicated that an interval of greater than 30 minutes passed between the time at which the floor was last cleaned and the time of the plaintiff’s fall.

11 On this aspect I find that the defendant’s system failed.

12 Ms Leah Davies went with a companion to the defendant’s restaurant on 3 April 2007. On entering the premises she noticed a number of chips on the floor. She brushed some of them to one side with her foot. Ms Davies told a staff member at the counter about the chips on the floor. Having done this she stepped back from the counter and allowed her companion to queue in order to place their orders. Her evidence suggested that staff members continued to attend to taking orders rather than to cleaning up the spill that she reported.

13 She said while she was standing back, she saw the plaintiff slip on the chips and fall to the ground. She saw that the plaintiff was assisted from the floor to a chair by her daughter who then went to the counter to report the fall.

14 It was apparent from this evidence that there was no immediate response to Ms Davies’ report of the presence of chips on the floor, nor was there an immediate response to the plaintiff’s fall as a consequence of the presence of those chips.

15 I find on these aspects that the defendant’s system failed.

16 Ms Davies offered her name and address as a witness to the incident and those details were recorded on the incident report form. She was not called as a witness in the defendant’s case although she was contacted by the defendant’s lawyers on the first day of the hearing. She was called in reply by the plaintiff. Her description of events and persons in the restaurant was very similar to the descriptions given by the plaintiff and her daughter and it was inconsistent with the evidence provided by Ms Hancock. For this reason I was satisfied that Ms Hancock was mistaken in her recollection of events and I was provided with a level of confidence sufficient to prefer the evidence of the plaintiff, her daughter and Ms Davies.

17 Their evidence established the following facts:

1. There was more than one chip involved, rather there were a number of chips.

2. The chips were not spilled by the plaintiff or her daughter.

3. There was a significant number of patrons in the restaurant waiting for takeaway meals or queuing at the counter section of the restaurant which was relatively busy at the time of her fall.

4. Ms Hancock told the plaintiff and her daughter after the fall that the area had not been cleaned because the staff had been very, very busy.

5. The plaintiff and her daughter and two elderly ladies sat at tables in the eating area of the restaurant to eat their meals. The elderly ladies were present when the plaintiff and her daughter entered the restaurant and present when the plaintiff fell. It was possible only that other persons were in that area but I did not accept without support Ms Hancock’s evidence of the presence of a young family with a child of toddler age.

6. The plaintiff and her daughter were in the eating area for about 20 minutes and therefore prior to 6.30pm.

18 The result was that I make the following findings.

1. The level of patronage between 6pm and 6.40pm of the defendant’s restaurant was such that more frequent cleaning and inspection was warranted and an employee, other than a cashier busy with taking orders, ought to have been given responsibility for periodic cleaning of the restaurant floors.

2. The system at the time of the plaintiff’s fall, given the level of patronage, was inadequate.

3. Even if 30 minute inspections were considered to be adequate, the system was not implemented because the floor was not cleaned at 30 minute intervals.

4. There was no immediate response by those at the counter to the report of a food spill or to the plaintiff’s fall.

5. It was probable that if an adequate system had been adopted or if the system in fact adopted had been implemented, the floor would have been cleaned at 6:30 or in the period within which the plaintiff and her daughter were present in the dining area and the chips would have been cleaned up.

19 I find that in failing to implement an adequate system, the defendant was in breach of its duty of care to the plaintiff.

EXTENT OF INJURY

20 I noted that the plaintiff was 46 at the time of her injury and is now 49 years old. She said that when she slipped she fell onto her right knee, she heard a cracking sound and she felt immediate pain. After providing her details to Ms Hancock she drove herself to the Mater Hospital where she was X-rayed and sent home. By this time her right knee was very swollen.

21 The plaintiff’s general practitioner referred her to physiotherapy at the Royal Newcastle Hospital. She undertook this therapy twice a week for four or five weeks but said she stopped because it was aggravating the condition of her knee. After a short period of time she returned for further physiotherapy but again found it to be aggravating and did not pursue it. The plaintiff said she took painkilling medication for a short period after her injury. She was employed in retail sales and therefore on her feet all day.

22 The consequences to the plaintiff of her injury were stated to be that discomfort and swelling in her knee increases throughout the day so that when she gets home after work it is necessary to rest her leg. She finds the knee painful at night to the point of disturbing her sleep. She was diagnosed with diabetes five years ago; this was managed prior to the incident with diet, medication and exercise. Prior to the incident her family bought her a dog to encourage her to walk and she walked the dog an hour a day. Since the injury she has found that she cannot do this for more than 30 minutes and that it causes her pain. As a result of the decreased capacity to exercise, she has suffered weight gain and her blood sugar levels have increased. She is now required to inject insulin in addition to taking tablet forms of medication.

23 The plaintiff said she can travel in a motor vehicle for only 30 minutes as a passenger. She said she uses handrails on stairs and in her shower. She suffers discomfort rising from chairs, squatting and kneeling. Her leg gives way from time to time causing her to stumble. The leg still swells although with less frequency.

24 The plaintiff said that she took Nurofen, an over the counter pain killing medication. She takes it as little as possible but takes Nurofen every second day. She was recently referred by her general practitioner to Dr Tarrant for specialist advice. He recommended that an MRI study be undertaken but it has not yet been performed because apparently it is inadvisable to undertake this procedure until an adequate period has elapsed following surgery for an unrelated condition that was performed on the plaintiff in July 2009.

25 The plaintiff’s evidence was challenged by the defendant because clinical notes of her general practitioner indicated that the plaintiff rarely complained concerning the condition of her knee between 2007 and May 2009, when she was referred to Dr Tarrant. Further, in this period there was no record that she received treatment or prescriptions for painkillers or anti-inflammatory medication.

26 The plaintiff’s explanation for this absence of record was that she persevered with her knee expecting it to recover. When it did not do so, she raised the matter again with her general practitioner. It was apparent that her general practitioner considered the condition of her knee sufficiently serious to warrant specialist attention. The evidence of the plaintiff’s daughter supported the plaintiff’s statements concerning her ongoing discomfort and disability.

27 The medico legal experts whose reports were placed in evidence accepted the plaintiff’s complaints as consistent with patello femoral problems. Dr Millons noted marked irritability in the plaintiff’s right knee at that level and recommended further investigation through X-ray or MRI study and possible arthroscopy. He suggested that if damage was found there may be ongoing degenerative change and increase in pain and stiffness in the plaintiff’s right knee. He recommended that she commence hydrotherapy to improve her mobility although he noted that the plaintiff does not swim and that she feared water.

28 His diagnosis was “almost certainly” traumatic chondromalacia of the patella. In this respect he agreed with both Dr Gabhrial and Dr Sage. Dr Millons accepted that the plaintiff was permanently impaired although he said it was difficult to assess the level of her impairment without further investigation. He was ambivalent in his response to the question of whether her condition was likely to improve with treatment.

29 Dr Sage, as noted, diagnosed traumatic chondromalacia of the patella and recommended an arthroscopy. He considered however that the plaintiff had reached maximum medical improvement.

30 Dr Tarrant was consulted in August 2009 for treatment purposes. His report was indefinite in the absence of the MRI study that he recommended but he noted that the plaintiff complained of pain and discomfort in a manner consistent with her evidence. Dr Tarrant accepted the plaintiff’s complaints of pain in the patello femoral joint. He set out alternative explanations for her pain and the means by which, in the absence of investigation, it might be treated.

31 No doctor expressed doubt that the plaintiff’s complaints were genuine. All indicated that further investigation and treatment was warranted. The plaintiff stated that she will attend to these matters when her other medical conditions permit her to do so.

32 As a result of this supporting medical evidence I rejected the defendant’s contention that the absence of complaint and treatment in 2008 indicated that the condition of the plaintiff’s right knee was at a nuisance level only. Her complaints, supported by the medical evidence, established an injury resulting in chondromalacia patella affecting her right knee.

33 The defendant questioned whether some improvement might be gained through treatment. However the report of Dr Millons indicated that there was also a prospect that the plaintiff’s condition will deteriorate. In the circumstances I decided that I should assess her non economic loss on the basis of her current pain and discomfort causing a moderate level of disruption to the plaintiff’s enjoyment of life and interfering with the treatment of her pre-existing condition of diabetes. I assess the plaintiff’s non economic loss at 28 percent of a worst case and award $66,500 in damages on this part of her claim.

34 In relation to the income loss, the plaintiff was employed in retail sales as a manager of Wombat Fashions clothing store at East Maitland at the time of the accident. The store was some distance from her home at North Lambton and she was required to drive for 50 minutes to and from her home. She persevered with this work for six to seven months and then relinquished her position because of the discomfort caused to her by driving for these periods.

35 She secured another position closer to home but that came to an end through her employer’s financial difficulties.

36 She was out of work for a period of nine months until December 2008 when she secured her current management position in retail premises selling housewares. She still holds this position and fulfils it on a full time basis, although not without discomfort. It requires her to stand virtually for the whole day. As the manager she has some flexibility that allows her to delegate and avoid activities such as squatting to stock or retrieve items at lower levels.

37 The plaintiff claimed past economic loss in the lump sum of $10,000 and this was not opposed by the defendant. Past superannuation was also allowed in the sum of $900.

38 As to the future, the plaintiff stated that she had worked in retail sales for the whole of her working life to date and it was her intention to continue with that work. She intended to work to retirement age but she was now uncertain as to whether she could continue to that point. The defendant argued that the plaintiff had capacity to retrain into other types of more sedentary work. There was some validity in this suggestion, although the defendant put forward no evidence that a vocational assessment had been undertaken to identify the types of work that might be vocationally suited to the plaintiff. The plaintiff stated that she had no experience in office or clerical work; that she enjoyed her work in retail sales and that she wished to continue it while she was able.

39 For the purposes of s 13 of the Civil Liability Act I find that the most likely future circumstances for the plaintiff’s working life, but for the accident, were that she would remain in employment in management in retail sales. I find that her prospects of continuing in that type of employment to the age of retirement have been diminished by her injury.

40 I consider reasonable the plaintiff’s claim of a lump sum of $65,000 based upon the equivalent of two year’s salary at her current rate. This figure I regarded as adequate to compensate the plaintiff for the potential shortening of her working life or for a period of unemployment whilst retraining.

41 I awarded superannuation on the basis of that figure in the sum of $7,150.

42 Much time was spent in evidence dealing with the exact number of minutes required to perform the numerous domestic tasks involved in running the plaintiff’s household. To date, assistance has been provided on a gratuitous basis by the plaintiff’s husband and to a lesser extent her daughter. The plaintiff said that if funded she would pay for commercially provided assistance.

43 The defendant challenged the plaintiff’s claim. It was argued that she should rearrange the way in which she chose to live her life in order to diminish the need for assistance with her housework. I do not accept that the principle of mitigation extends to a requirement that a plaintiff substantially alter his or her lifestyle.

44 In this case the plaintiff is continuing to work full time with the result that I find that her discomfort reaches levels where it is unreasonable to expect that she should also continue to be responsible for all of the domestic work involved in managing her house and garden. I do accept that some of the care that she is currently receiving gratuitously will continue. I considered however that four hours a week of commercially provided assistance would be necessary to deal with the heavier aspects of her housework, gardening and shopping that she is no longer capable of performing. This results in an allowance on this head of damage of $80,380.

45 Past out of pocket expenses are agreed in the sum of $135. For the future I have allowed for medication and the MRI study as claimed in the sum of $2,000.

46 In summary the awards made to the plaintiff are as follows: non economic loss at 28 percent, $66,500; past income loss $10,000; past superannuation loss $900; future income loss $65,000; future superannuation loss $7,150; future care $80,380, past out of pocket expenses $135; future out of pocket expenses $2,000. This results in a sum of $232,065.

47 The orders that I make are as follows:

1. Verdict and judgment for the plaintiff in the sum of $232,065.

2. The defendant is to pay the plaintiff’s costs of the proceedings.

3. The exhibits are returned.

4. These orders are suspended for seven days in the event that the plaintiff wishes to raise the matter of care gratuitously provided to the date of the hearing.

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