Korda v Aldi Foods Pty Ltd
[2017] ACTSC 96
•8 June 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Korda v Aldi Foods Pty Ltd |
Citation: | [2017] ACTSC 96 |
Hearing Dates: | 1 May 2017; 25 May 2017 |
DecisionDate: | 8 June 2017 |
Before: | Robinson AJ |
Decision: | See [49]. |
Catchwords: | APPEAL – IN GENERAL AND RIGHT OF APPEAL – CIVIL LAW – Appeal against finding of contributory negligence – Cross-appeal against finding of liability – Application for leave to reopen appeal – Whether insufficient evidence to support Magistrate’s findings – Whether matter should be remitted to Magistrates Court NEGLIGENCE – Occupiers liability – Contributory negligence – Apportionment of responsibility and damages – Whether failure to install warning sign was a breach of defendant’s duty of care – Whether absence of a warning sign was causative of the plaintiff’s injuries |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) ss 102, 168 |
Cases Cited: | Hoyts Pty Ltd v Burns [2003] HCA 61; 77 ALJR 1934 Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 Water Board v Moutakas (1988) 180 CLR 491 |
Parties: | Jenny Korda (Appellant) Aldi Foods Pty Ltd (Respondent) |
Representation: | Counsel Mr J Purnell SC with Mr D Richards (Appellant) Mr N Polin SC (Respondent) |
| Solicitors Maliganis Edwards Johnson (Appellant) Ken Cush and Associates (Respondent) | |
File Number: | SCA 85 of 2016 |
Decision under appeal: | Court/Tribunal: Magistrates Court of the ACT Before: Magistrate Theakston Date of Decision: 2 November 2016 Case Title: Jenny Korda v Aldi Foods Pty Limited and Brice Australia (NSW) Pty Limited Citation: [2016] ACTMC 11 |
ROBINSON AJ:
On 19 December 2013, Ms Jenny Korda, to whom I will refer as the Plaintiff, was injured as a result of an incident at the entry gates for customers to the Aldi store at the Canberra Centre.
The Plaintiff brought proceedings against Aldi Foods Pty Ltd, to whom I will refer as the Defendant, as occupier of that store.
In the Magistrates Court, the Plaintiff obtained judgment in the sum of $56,054.93, which sum had been reduced for a finding that the Plaintiff’s damages should be decreased by 50 per cent on account of her contributory negligence.
The Plaintiff has appealed against the finding made of 50 per cent contributory negligence and the order for costs.
The Defendant has cross-appealed against the liability finding made against it.
No issue was taken in respect of the quantification of the Plaintiff’s damages.
The parties were agreed as to the identification of the law which was to be applied in the resolution of this dispute. Section 168 of the Civil Law (Wrongs) Act 2002 (ACT) (‘the Act’) applied to liability and s 102 of that Act applied to the finding of contributory negligence.
The entry gates
For customers, entry to the Aldi store on the day in question was via a gate assembly. This is a metallic configuration of two gates. When operating properly, there is an interdependence between them. The gates were designed to open when a customer approaches them from the outside of the store. The gates do not open when a customer attempts to exit the store through those gates. The two gates are not side by side but placed so that the customer passes the first gate and then the second gate. There is about a metre between the two gates. The entrance is more than a metre wide and a customer pushing a trolley through the gates will have no trouble doing so. Aldi kept its trolleys outside the entrance to the store. Accordingly, the contemplation was that customers would push trolleys through these gates as they entered the store.
The gate assembly manufacturer had two alternative ways of triggering the opening of the gates when a customer approached. They could be triggered by a radar sensor or the breaking of a light barrier. Obviously, to function properly, those methods of detection required that the working mechanisms be properly placed and adjusted. According to the evidence, there is doubt as to which method had been installed on this gate assembly.
It is common ground that on the day of the incident, the gate assembly mechanism was not working correctly. Ms Scott, an employee of Aldi, had had to disconnect the first gate and leave it permanently open because it had been swinging wildly.
Incident
It is not in dispute that, on the day of the incident, the Plaintiff entered the gate assembly pushing an empty shopping trolley. She pushed the trolley towards the closed second gate. As she did so, the Plaintiff looked to her right, away from the gate at a display of biscuits. She expected the gate to open automatically. It did not do so. The trolley hit the gate and the trolley struck the Plaintiff on her lower left shin. The Plaintiff moved her trolley back and forth and then the gate opened.
Findings of the Magistrate
On the pleadings, the Plaintiff gave nine particulars of negligence. The case, at trial, was much narrower.
The Magistrate summarised the “two cases” he ultimately considered at paragraphs [65] to [67]:
[65] ... The plaintiff submitted that an appropriate precaution would have been to leave the second gate open. No evidence was led by the plaintiff about this precaution, and the possibility was not put to the defence witnesses. There is, accordingly, no direct evidence about the utility or burden of taking that precaution. Presumably, it would have been simple for someone, such as Ms Scott, to disconnect the sensor to the second gate, as she had done so for the first gate, leaving both gates open. A consequence would be customers could exit the store through that gate assembly, potentially with unpurchased stock. That consequence could have been mitigated by placing a staff member adjacent to the gate assembly. However, the burden of employing a staff member to do so, other than attempting to identify the means of the defendant, was not otherwise explored during evidence.
[66] The burden of leaving the second gate open, with or without the placement of a staff member, would therefore not have been insignificant. However, on the evidence it is impossible to quantify that burden further.
[67] The plaintiff’s pleadings claim that the defendant should have given shoppers a warning that the gates were not operating correctly and there was a risk to the shoppers. Presumably such a precaution could have involved placing a warning sign proximate to the gate. That would not have carried much of a burden, and could have been actioned simply and quickly.” (emphasis added)
I interpolate here to record that I have underlined the word “pleadings” in the extract above. This forms the basis of a submission sought to be made on the Defendant’s cross-appeal. I will return to this submission below.
The Magistrate continued his further analysis of the “two cases” and derived conclusions at [68] to [73]:
[68] Determination of Precautions. I now turn to the question of whether a reasonable person in the defendant’s position would have acted as the defendant did, or would have taken either of the two precautions suggested by the plaintiff. I note that the fact that a risk has materialised or could have been avoided is not determinative of the question.
[69] This assessment is made in the context of the defendant actively encouraging the plaintiff to enter its store through the gate assembly, while pushing a trolley, and knowing that the first gate was fixed open and that the second gate may not open every time a shopper approached. There was social utility in the defendant using the gate assembly for the purpose of cost-effectively reducing theft. The plaintiff had a clear view of the closed gate and had the ability to appreciate the risk that if the gate did not open, the trolley could collide. However, the plaintiff did not have the ability to appreciate that the gates would remain firm, without any give, causing the trolley to stop abruptly.
[70] The gate was designed to open automatically and there was no warning that it may not do so. Shoppers would expect the gate to open. The plaintiff did expect the gate to open.
[71] While the likelihood of harm occurring was low and the likely seriousness of the harm was minor, it was foreseeable that more serious harm could potentially occur. The precaution of placing a warning sign adjacent to the gate involved only a minimal burden upon the defendant. On the balance of probabilities I find that a reasonable person in the defendant’s position would have displayed such a warning sign, and that it was unreasonable for the defendant, in the circumstances, not to have done so.
[72] Due to the uncertain burden of leaving the second gate open, I am unable to form a view about whether a reasonable person would have taken that precaution.
[73] Accordingly, I find that the defendant breached the standard of care, to take all care that is reasonable in the circumstances to ensure that anyone on the premises does not suffer injury or damage because of the state of the premises or things done or omitted to be done about the state of the premises. (emphasis in original)
After coming to the finding in [71] and [73] that there had been a breach of duty, the Magistrate did not make any finding, observation or assessment of whether the breach of duty caused the loss. No words were written on this issue by the Magistrate.
Judgment has been given for the Plaintiff and so it can be inferred that the Magistrate was at least of the view that the Plaintiff had won her case. The Magistrate’s reasoning process is not identified.
On appeal, the Plaintiff submitted that in some situations, it can presumably be inferred that the loss suffered has been caused by a breach of duty.
Cross-appeal
It is convenient to deal with the cross-appeal first. The Notice of Appeal Cross-Appeal contained eight grounds. It is sufficient to deal with the two of those grounds which were canvassed on appeal.
A further matter was raised by the Defendant in written submissions which were filed shortly prior to the hearing of the appeal. The submissions articulated the further proposition that it was not open for the Magistrate to find the Defendant has breached its duty by:
...failing to erect a warning sign in circumstances where:
(a) that was not a case run by the appellant at trial.
(b) that was not a case that was put to the respondents witnesses at trial.
(c) that was not a case that was supported by any evidence of the Appellant at trial.
(d) that was not a case upon which the Learned Magistrate was addressed at trial (either orally or in written submissions) by either the Appellant or Respondent.”
If made out on the facts, this proposition was potentially decisive: see Water Board v Moutakas (1988) 180 CLR 491. That proposition was not, however, expressly encompassed in the grounds of appeal. After argument concerning whether an amendment should be allowed to the Notice of Cross-Appeal to rely on this further proposed ground, it was withdrawn by the Defendant. The two disputed grounds argued were: the finding that a failure to install a warning sign was a breach of the relevant duty of care owed and the finding that the absence of a warning sign was causative of the injuries. As will be clear, many of the elements which went to make up the proposition discussed above, were at play in the second of the two grounds of contention.
Failure to install a warning sign
As set out above, at [71] and [73] the Magistrate made a finding in favour of the Plaintiff on this issue. Part of the reasoning process to get to this conclusion involves the finding of fact at [69] concerning the Defendant’s knowledge:
…the defendant actively encouraging the plaintiff to enter its store through the gate assembly while pushing a trolley, and knowing that the first gate was fixed open and that the second gate may not open every time a shopper approached.
There was no challenge to this finding of fact. However, there was a difference between the parties, deriving from latent ambiguity, as to what precise knowledge the Defendant was said to possess at that time. I was taken to the evidence. Although it is by no means the firmest foundation for the finding of that fact, I cannot say that the Magistrate was in error in making the above finding.
Once this finding is made, the conclusion of breach of duty would follow in the circumstances, and the challenge to it fails.
Absence of a warning sign was causative of the injuries
At the trial, the Plaintiff led no evidence of the type of sign, the wording of such a sign or the position that such a sign could or should have been placed.
There was, as would be expected in those circumstances, no evidence of whether the Plaintiff would have reacted to the warning and, if so, how. Of course, in the first instance, that would have been a function of where the Plaintiff was looking at the time of entry, where the sign was placed and what other visual attractions were competing for the Plaintiff’s attention.
The lack of evidence by the Plaintiff on this topic is certainly explicable by the fact that this was not the Plaintiff’s primary case. This was, in contrast, a case where “[t]he Plaintiff’s pleadings claim” that a warning sign should have been present: as underlined at [13] above. The Plaintiff’s primary case was instead that the Defendant was required “to leave the second gate open”. If this gate was left open, no warning was required. There could be no collision. The Plaintiff did not need to lead evidence of her reaction to a warning sign and, accordingly, she did not give evidence on the topic.
At [14] to [15] the Magistrate found that:
[14] Just prior to the plaintiff entering the store two shoppers, without a trolley, walked through the gate assembly without incident. The second gate opened just as the first shopper placed his hand out in front of him towards the gate, and shortly thereafter closed behind the second shopper.
[15] Seconds later the plaintiff entered the gate assembly while pushing an empty Aldi shopping trolley. As she pushed her trolley towards the closed second gate, she looked up and to her right, away from the gate and towards a display of biscuits. She expected the second gate to open automatically. It did not. The trolley collided with the closed second gate and stopped. (emphasis added)
On that uncontested finding, there is no doubt that the factor of the distraction of the Plaintiff at the critical time is operative, and account must be taken in any analysis of causation: see Hoyts Pty Ltd v Burns [2003] HCA 61; 77 ALJR 1934 at [26].
On the state of the evidence, as referred to at [25], [26] and [29], in my view, it is not possible to infer that the breach of duty identified by the Magistrate caused the loss suffered. Senior Counsel for the Plaintiff colourfully said that only 11 words were missing from the judgment:
But what [the Magistrate] didn’t say in [paragraph] 71 was 11 words, a failure to do so caused the injury to the plaintiff.
It is not so simple. There is no inescapable or even probable inference which arises in favour of the Plaintiff. There is simply an inadequacy of evidence available for this to be so. Importantly, the Magistrate would not have been able to find, according to law, causation proved on the balance of probabilities on the existing state of the evidence. That is so even had his Honour turned his mind to the task.
The Defendant has made out this ground on its cross-appeal. The appeal must be allowed.
Disposition
The question which next arises is as to the proper disposition of the appeal. Senior Counsel for the Plaintiff again put the submission colourfully and passionately. He said:
But in any case, if you don't accept my submission that you can draw the inference of those 11 words that he didn't put in paragraph 71, then it is simply unjust to visit upon us the magistrate not completing his task by turning his mind to that task. It should be remitted back. How can the - how can the respondent complain about the magistrate doing his duty to look at the case properly? That's what he hasn't done. He's left out one thing. They can't be seen to complain about that, and your Honour, as a judge administering justice to both sides should sen[d] it back.
I am unable to accede to this submission that a new trial should be ordered. As a matter of legal principle, a party has usually only one opportunity to call the evidence he or she wishes to call in support of the case they seek to make. As a matter of legal principle, he or she is then normally bound by the case they have made.
In Coulton v Holcombe (1986) 162 CLR 1, the High Court observed at a general level at 8:
Finally, in a recent decision of six justices of this court — University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483; — the court said:
“It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.”
The Court of Appeal recognized the great importance, in the public interest, of these principles. Their Honours summarized them in the following terms:
“the finality of litigation; the difficulty of inducing an appeal court to consider new facts; the undesirability of encouraging tactical decisions not to present an issue at first instance: keeping it in reserve for appeal; and the need for vigilance to avoid injustice to a party having to meet new facts and new issues of law for the first time at the appeal court.”
This general principle has been considered or applied on numerous occasions where an unsuccessful party seeks to make a new case on appeal. For present purposes, it is possible to divide those cases into two situations. First, where an appellant argues a new case solely from the existing evidence. Second, where the new case requires additional evidence not tendered by that party in the court below. In this appeal, we are clearly dealing with a situation where additional evidence is required to fill a gap in the factual matrix from which causation can be found.
The appeal
In light of the above, I will set out my brief reasons as to why I would have allowed the appeal on the ground that the Magistrate erred in his assessment of contributory negligence.
The Magistrate dealt with this matter at paragraphs [74] to [76]. His Honour said:
[74] I have considered the issue of contributory negligence on the basis that the duty described at s 168(1) of the Act does not trigger the bar to contributory negligence provided at s 102(2) of the Act. This is consistent with the approach taken in relation to contingent damages in Brozinic.
[75] For reasons described above, the risk of the trolley bumping into the gate, should it not open, was a risk that was obvious. This was the case, notwithstanding any expectation that the gate would open. In contrast to the shoppers who entered through the gate immediately before and after the plaintiff, the plaintiff did not pay attention to the state of the gate, and instead pushed her trolley towards the gate while looking up and to her right towards a display of biscuits. A reasonable person would have been aware of his or her surroundings, taken reasonable care for his or her own safety, waited for the gate to open and not inadvertently struck the trolley against the closed gate. This represented a failure of the plaintiff to take reasonable care, and the injury suffered by the plaintiff is partially because of this.
[76] I therefore reduced the overall damages awarded to the plaintiff by 50% on account of her contributory negligence. In accordance with s 102 of the Act, I find that reduction is just and equitable having regard to the plaintiff’s share in the responsibility for the damage.
I take the relevant law to be applied as that in Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492, 494. It is not necessary, for present purposes, to canvass other authorities:
The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man (Pennington v Norris (1956) 96 C.L.R. 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] A.C. 663 at 682; Smith v McIntyre [1958] Tas.S.R. 36 at 42-49 and Broadhurst v Millman [1976] V.R. 208 at 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.
It is clear that the Magistrate did not undertake any examination of the Defendant’s responsibility for the damage. He focussed entirely on the Plaintiff’s responsibility for that damage. Nor did he focus upon the degree of departure from the standard of care by the Defendant.
I would have allowed the appeal on this basis.
The assessment of contributory negligence would have been set aside for error. It would have fallen for reassessment. On the issue of the degree of contributory negligence, I would have brought into the mix:
(a)That the Defendant’s store set up contained displays which the Defendant positioned and hoped would attract attention from customers.
(b)That familiarity with the store and the repetition of entering through the same gateway would induce complacency and that the chance of inattention on the part of shoppers, to even an objectively obvious danger, was heightened.
(c)That the Defendant had a capacity to warn of the danger through inexpensive means but did not do so.
My own assessment of the contributory negligence would have been that the verdict should have been diminished by only 20 per cent.
Application to reopen the appeal
After I had written the above in draft, the Plaintiff sought leave to reopen the hearing of the appeal. I received written submissions from the parties and a further hearing took place.
The Plaintiff raised two main issues. First, it was said that, after a careful consideration of the grounds set out in the Notice of Cross-Appeal, the error of law, being the failure to make a finding on causation, was not within the grounds set out. Second, there was power to remit the proceedings to the Magistrate for causation to be determined according to law.
Ground seven of the Notice of Cross-Appeal was as follows-
The Learned Magistrate failed to provide any, or any sufficient, reasons for his finding that the absence of a warning sign was causative of the Appellant’s injuries.
With due respect to the Plaintiff, I would regard the formulation of this ground as sufficient to cover the attack made by Defendant’s counsel upon the judgment under consideration. The use of the word “any” appears apposite to the situation and the use of the expression “or any sufficient” appears to have been used to negate the possible argument that, by inference from the simple fact of a verdict, it can be reasoned that causation was proved in some unspecified way.
I have no doubt that in an appropriate case there is power to remit the matter to the Magistrate for further hearing. In some cases there will be an obligation to do so. As I explained above, this is not such a case. Whether deliberately or inadvertently, the Plaintiff did not call evidence relating to causation in her “warning sign” case. It is easy to see why she did not call that evidence. It was not her primary case.
Orders
I make the following orders:
(a)That the cross-appeal be allowed.
(b)Judgment in the court below is set aside.
(c)In lieu thereof, order that the Statement of Claim be dismissed.
(d)That costs be reserved.
| I certify that the preceding forty-nine [49] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Robinson. Associate: Date: 8 June 2017 |
2
4
1