Le Cornu Pty Ltd v Millway No. Scciv-02-772

LE CORNU PTY LTD v MILLWAY
[2002] SASC 434
Full Court: Duggan, Debelle and Williams JJ

DUGGAN J I agree that this appeal should be allowed for the reasons given by Debelle J. I agree that there should be a re-trial.
DEBELLE J This is an appeal from a decision of a judge of the District Court holding that the appellant is liable to the respondent for injuries sustained in the appellant’s store. It is convenient to refer to the appellant as “the defendant” and the respondent as “the plaintiff”.
The court allowed the appeal and directed that there should be a re‑trial on the issues of both liability and damages. It announced that it would publish its reasons. I set out below my reasons for that decision.
The action arises out of an incident which the plaintiff alleges occurred in the defendant’s store at Keswick on 23 August 1998. The plaintiff was then aged 75 years. The plaintiff alleged that a large trolley being pushed by employees of the defendant struck her on the leg causing her to fall. The trial judge held that the defendant was liable for the accident. He awarded the plaintiff $80,000 general damages, $15,000 for Beck v Farrelly assistance as well as allowing $8,533.15 for special damages. The defendant appealed against the trial judge’s conclusions as to liability and damages.
The plaintiff had gone to the defendant’s store with her daughter and two grandchildren. Her daughter was looking for a bed. After purchasing the bed, the two grandchildren each received a free balloon. After leaving the store, the plaintiff’s granddaughter Sarah lost her balloon. The plaintiff and Sarah went back inside the store to acquire another balloon. They stood in a queue of people waiting to receive balloons. The plaintiff said that, while waiting in the queue, she was struck on the back of the legs by a large trolley carrying mattresses. She said that the trolley was piled high with mattresses and was being pushed by two men. She said that after being struck on the back of her legs she tried to walk a couple of steps but fell. She was taken to hospital.
The plaintiff’s granddaughter Sarah said that the plaintiff walked a few steps and then fell over. In cross‑examination she said that she was not sure whether she and the plaintiff had walked through the double doors.
The trial judge accepted the plaintiff’s account of the incident and found that the defendant was liable. He said that no witnesses of the incident were called other than the plaintiff. That statement was incorrect. The plaintiff had called her granddaughter Sarah and the defendant also called an employee who tended to the plaintiff after she had fallen as well as other employees.
The defendant did not simply deny the plaintiff’s allegations. It led evidence of the layout of the store, the system of operation, and as to the place where the plaintiff had fallen with the purpose of showing that the accident could not have occurred. The defendant’s case was that there were no loaded trolleys in the area of the store where the plaintiff said the incident had occurred. It said that only empty trolleys had been in that area. It called two employees who had each pushed an empty trolley near the queue waiting for balloons. The effect of their evidence was that they had moved carefully because people were in the area; that they gave a warning of their approach; and that they did not strike the plaintiff or any other person. They said that, if they had struck the plaintiff, they were unaware of it adding that they must have inadvertently brushed the plaintiff’s leg or legs as they passed her. There was other evidence that the plaintiff had fallen some eight to ten metres from the queue.
The defendant called a Ms Trezise, a supervisor and first aid officer. She had attended the plaintiff at the place where she had fallen. That was some six to eight metres inside double doors through which the plaintiff had passed after leaving the queue. The doors enabling customers to enter and leave the premises are quite separate from one another. It was the defendant’s case that the plaintiff had walked in the wrong direction, had realised her mistake, and had fallen when turning to walk back in the other direction.
The plaintiff was examined about two hours after she had fallen at the Royal Adelaide Hospital by a Dr Livesey. Dr Livesey’s evidence was that the plaintiff had told her she was shopping when her legs gave way. When asked whether they had just given way the plaintiff explained that her left leg had been caught from behind by a trolley and a short time later her right leg had given way causing her to fall. She had tried to stand up but could not. She said that she had fallen approximately five minutes after her leg had been hit. Dr Livesey’s account was based on notes she had made in the course of her examination of the plaintiff. She said that the plaintiff was alert and oriented.
The nursing assessment form which had been completed at the Royal Adelaide Hospital about 12.45am, not long after the plaintiff had been admitted, states that the plaintiff had been shopping at Le Cornu’s when her legs “gave way”. The nursing assessment form makes no mention of the plaintiff being struck.
The plaintiff had a history of falling. She had fallen on a pavement in Enfield shortly after her husband had died. About twelve months later she had another fall in the front of her house. When interviewed by nursing staff in April 1998, she admitted that she had had several falls at her house over the past few months.
The trial judge simply accepted the evidence of the plaintiff. He did not in his reasons refer to the other evidence. He was plainly wrong in stating that no witnesses of the incident were called. The reasons for judgment on the question of liability do not appear to represent an assessment of the evidence in any respect at all. Rather, it is little more than a recitation of the allegations in the Statement of Claim to which the judge has added that he accepts the plaintiff’s evidence. In all the circumstances I think that the trial judge has not examined the evidence but has simply recited the evidence of the plaintiff, accepted her as a witness of truth and found in her favour.
The evidence of the place where the plaintiff had fallen, the layout of the store, and the distance between exit and entrance doors calls into question the evidence of the plaintiff and of her granddaughter Sarah that she had walked only a step or two before falling. The fact that she was found by Ms Trezise some eight to ten metres from the queue indicated that she had walked through some double sliding doors. There was no evidence that she had been moved to that position. Ms Trezise found her where she had fallen. That evidence shows not only that she had walked a further distance than she and Sarah recall but also points to the conclusion they were walking into the store and away from the car park instead of walking towards the car park.
These are objective facts which the trial judge did not deal with when making his assessment as to liability.
There are other facts which, depending on the view taken of the witnesses, cast doubt over the plaintiff’s evidence. They include the fact that loaded trolleys were not in the area where the plaintiff says the queue was forming and the statements made by the plaintiff at the Royal Adelaide Hospital. These are all matters which ought to have been examined by the trial judge. They were critical to the assessment of the credibility of the plaintiff on the issues of both liability and damage. It is quite clear that the trial judge has not had any regard to them. In the result, there has not been a proper determination of the real weight of the body of the evidence presented by the defendant. His failure to do so coupled with the fact that he appears to have recited the statement of claim points to the conclusion that he has failed to weigh up the evidence. The trial judge has misused his advantage of seeing the witnesses and his conclusion must therefore be set aside: Devries v Australian National Railways Commissioner (1993) 177 CLR 472 at 479. However, it cannot be said that the evidence led by the defendant was so strong that this Court can substitute its decision for that of the trial judge. In all the circumstances, the proper course is to order a new trial.
As there has to be a re-trial on the question of liability, it is appropriate to order a re-trial on the question of the damages also, particularly as there are issues as to the credibility of the plaintiff which bear upon the assessment of damages.
For all of these reasons, I joined in the order to allow the appeal and to order a re-trial.
WILLIAMS J I agree with the orders proposed by Debelle J for the reasons which he has given.

[2002] SASC 434

20 December 2002