Mansell v Coles Supermarkets Australia Pty Limited

[2017] NSWDC 309

District Court

New South Wales

Medium Neutral Citation:

Mansell v Coles Supermarkets Australia Pty Limited [2017] NSWDC 309

Hearing dates:

24 and 25 October 2017

Date of orders:

03 November 2017

Decision date:

03 November 2017

Jurisdiction:

Civil

Before:

Judge D. Russell

Decision:

(1)   Judgment for the plaintiff against the defendant for $293,597.30.
(2)   Order the defendant to pay the plaintiff’s costs.
(3)   Grant liberty to the parties to apply to my Associate if any different costs order is sought by a party.

Catchwords:

TORTS – negligence – slip and fall – liquid spilt on supermarket floor – system of inspection and cleaning

 

LIABILITY – civil liability – failure to take reasonable precautions against risk of harm - causation

  DAMAGES – non-economic loss – out-of-pocket expenses – commercial care – economic loss and loss of earning capacity

Legislation Cited:

Civil Liability Act 2002

Cases Cited:

Australian Safeway Stores Pty Limited v Zaluzna [1987] 8 HCA 7; (1987) 162 CLR 479
Roads & Traffic Authorities (NSW) v Dederer [2007] HCA 42; (2007) 234 CLR 334
Francis v Lewis [2003] NSWCA 152
Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166
Kocis v SE Dickens Pty Limited [1998] 3 VR 408
Wilkinson v Law Courts Limited [2001] NSWCA 196 at [32]

Category:

Principal judgment

Parties:

Paul Douglas Mansell (plaintiff)
Coles Supermarkets Australia Pty Ltd (defendant)

Representation:

Counsel:
Mr E. Romaniuk SC (plaintiff)
Mr J. Masur (plaintiff)
Mr D. Priestley SC (defendant)

  Solicitors:
LHD Lawyers (plaintiff)
McCulloch & Buggy (defendant)

File Number(s):

2016/358561

Judgment

INTRODUCTION

1. By an Amended Statement of Claim filed on 10 March 2017 the plaintiff Paul Douglas Mansell has sued the defendant Coles Supermarkets Australia Pty Limited for damages arising out of an accident which occurred at the defendant’s premises on 23 February 2016.

2. On that date the plaintiff was shopping in the defendant’s supermarket at Vincentia on the New South Wales south coast. He slipped on a liquid on the floor in aisle 7 and fell onto his right shoulder.

3. The defendant’s Defence was filed on 21 March 2017. The issues for trial were further refined by the defendant’s Statement of Issues in Dispute. The issues which ran at trial were:

1. whether the defendant breached its duty of care as alleged;

2. whether any demonstrated breach was causative of any loss and damage suffered by the plaintiff;

3. quantification of damages.

4. The defendant accepted that it owed the plaintiff a duty to take reasonable care to avoid a foreseeable risk of injury to him arising from the physical state of its property, on the assumption that the plaintiff use reasonable care for his own safety.

5. The defendant accepted that the relevant risk of harm, slipping on a liquid on the floor and sustaining injury, was foreseeable and not insignificant, for the purposes of s 5B of the Civil Liability Act 2002.

6. The plaintiff gave evidence. He impressed me as a witness of truth who gave his evidence in a matter-of-fact fashion and answered all questions without prevarication. The defendant’s expert Dr Faithfull said that the plaintiff “presented in a straightforward fashion without exaggeration”. That was my impression as well.

7. The oral evidence for the defendant came from Mr Duffy who was the store manager at Vincentia and Mr Creer, who was the duty manager at Vincentia. Both impressed me as witnesses of truth, who were doing their best to provide their honest recollections of events. I formed the strong view that both Mr Duffy and Mr Creer were very conscientious employees of the defendant.

BEFORE THE ACCIDENT

8. The plaintiff was born on 27 April 1958 and is presently 59 years old. His wife is 55 years old. The couple have two grown-up foster children. Over the years they have taken in many other foster children for short terms. They live in rented accommodation at Coolum Beach in Queensland.

9. The plaintiff grew up in South Australia and finished school half way through Year 10. He then commenced an apprenticeship in glazing which took four years to complete. He obtained his trade qualifications at about 19 years of age. He then worked as a glazier for several decades.

10. In 1996 he set up his own glazing business at Airlie Beach in Queensland. At its peak the business had 18 employees. The business was sold in 2012.

11. The plaintiff then worked as a labourer for a plumbing company as he and his wife were under some financial pressure with large debts owing on residential property investments. He went into voluntary bankruptcy and was discharged in June 2015.

12. After being discharged from bankruptcy the plaintiff set up another business called Bay & Basin Glass in Jervis Bay on the New South Wales south coast. The plaintiff was the only full-time employee of the business. His wife did the office work and there were casual labourers engaged from time to time. The plaintiff has no computer skills and was not familiar with the proprietary software which can be used for quoting on large glazing jobs.

13. Prior to his accident in February 2016 the plaintiff was fit, performing his duties as a glazier, and engaging in the recreational pursuits of golf, fishing, camping and kayaking. The plaintiff did have problems from time to time with his shoulders before his accident in 2016. He described these problems as “tradie’s shoulders”. The pains in his shoulders never stopped him from working and they were not continuous. He used to go to chiropractors as he felt that his back was out, and the work which the chiropractors did also fixed his shoulder problems. Being a glazier is an occupation which is hard on the arms and shoulders, as glaziers work with their arms in an elevated position about 80% of the time.

14. In the Jervis Bay business the plaintiff sought out work known as heavy glazing work. This involves lifting and fitting panels of glass which weigh between 100kg and 400kg. This work was more lucrative than light glazing work. It takes many hands to manually lift such panels onto scaffolds and into openings. While he experienced some discomfort and pain before his accident in February 2016 these problems had never stopped him doing his heavy glazing work or pursuing his recreations.

15. Prior to the accident the plaintiff shared a large number of the household and gardening activities with his wife.

THE ACCIDENT

16. The plaintiff went to the defendant’s supermarket in Vincentia at about 4.00pm on 23 February 2016. He had been working that day, came home and went to the supermarket. He wore rubber thongs, which was his usual footwear at that time of year. He was walking in aisle 7 looking for batteries which were on one of the higher shelves. In aisle 7 there were no food products or refrigeration units. He was moving at a slow pace. While looking up he slipped and suddenly fell straight onto the floor without breaking his fall. His right shoulder and the right side of his neck came into contact with the floor or a support post or his shopping basket, or perhaps all of those things. Only one foot slipped. He had no opportunity to put out his hands to break his fall.

17. Once he had composed himself he got up and looked at the floor. He saw what looked like a small puddle of iced coffee on the floor. The puddle was elongated from where he had slipped in it. There was no iced coffee packaging, it was just the liquid on the floor. Two other shoppers came to help him, and a junior manager came to the scene. The junior manager was Mr Creer, who gave evidence for the defendant. He took the plaintiff’s telephone number and said that he would get the senior manager to ring the plaintiff the next day.

18. The plaintiff finished his shopping and went home. He became sore in the neck and shoulder as the night went on.

19. The next morning Mr Duffy from Coles rang the plaintiff and identified himself as the store manager. Mr Duffy said that he had viewed the CCTV footage and saw that the plaintiff had had a nasty fall and that two shoppers had come to help him. Mr Duffy told the plaintiff that when he viewed the CCTV footage he saw that a lady had picked up an iced coffee drink out of the freezers and was drinking it while walking around the store. Mr Duffy said that he saw the lady spill the coffee on the floor.

20. The plaintiff asked for a copy of the CCTV footage, but this was never provided. He asked for it at least five times. Eventually Mr Duffy informed the plaintiff that the footage had been deleted.

21. The plaintiff asked Mr Duffy in due course for copies of the defendant’s incident reports. He was provided with two documents which differed slightly from each other. Both were put into evidence. The incident reports were completed by the defendant’s staff, and not by the plaintiff.

22. Some time after the accident the plaintiff went back to Mr Duffy and asked whether he could have his medical expenses paid by the defendant. He was told to contact Head Office.

23. While the plaintiff was cross-examined to some extent about the circumstances of the fall, there was no challenge to the plaintiff’s version of events. Indeed, senior counsel for the defendant indicated early on in the case that there was no dispute that the fall had occurred in the way the plaintiff said it did.

24. The defendant’s incident reports recorded the time of the fall as 4.12pm. The first version of the report contained little or no information. The second version of the report referred to there being CCTV footage and nominated Mr Creer as the person who had reported the incident. The incident was recorded as a “Slip or Fall”. The document recorded that the floor where the incident occurred was last cleaned at 6.00am on 23 February 2016.

AFTER THE ACCIDENT

25. The plaintiff continued to work after the accident although he noticed that he had pain. Whereas before the accident his shoulders caused occasional difficulties, for the first time after the accident he experienced sharp pain in the right shoulder. He kept going to his usual chiropractor to have his back manipulated, as he had before the accident. He took an over-the-counter medication called Nurofen.

26. Eventually the chiropractor suggested that the plaintiff needed investigations on his shoulder. He had an x-ray and then an ultrasound and then an MRI. I will refer to the contents of the MRI report later.

27. After a discussion with his local general practitioner at the time of the MRI scan, the plaintiff started to employ people to do his work and finish off the jobs he had. He basically stopped running his business after the MRI. The business was sold for a very modest amount of money.

28. Fortunately the plaintiff had income protection insurance which has paid him $870 nett per week.

29. The plaintiff has had, and continues to have, restriction of movement and reduction in strength in the right shoulder and right arm. He can carry something when his arm is by his side, but he cannot extend the right shoulder to lift something up from a low position. Nor can he lift in a sideways plane. If he reaches out to pick up something he gets a sharp pain in his shoulder.

30. After the plaintiff stopped working he became depressed. He felt bad that he could no longer provide for his wife and his family and he found this mentally debilitating. He wanted to go back to work and support his wife but he could not. The plaintiff saw a psychologist who gave him some limited help, but eventually he was put on medication. The medication has helped his psychological condition.

31. The plaintiff has not sought medical advice from a specialist for his shoulder. He said that he has not been able to afford specialist treatment for the shoulder. Given his limited income, and given that rent alone at Coolum Beach is $440 per week, it is understandable that the plaintiff has not been able to fund his own further medical treatment.

32. The plaintiff’s wife has significant health issues. She suffers from a bowel condition called clostridium difficile (CD). This condition is caused by bacteria which lives in the intestines. It is an extremely painful condition and on several occasions the plaintiff has had to call an ambulance to take his wife to hospital to be managed, because of her pain.

33. The plaintiff and his wife always intended to move back to Queensland after a few more years of running the glazing business in Jervis Bay. However, with the plaintiff’s injury and his wife’s increasing bowel problems, they decided to sell the glazing business and move a couple of years ahead of schedule.

MEDICAL EVIDENCE

34. The plaintiff first consulted his chiropractor after the fall on 28 April 2016. He complained of headache, back pain and bilateral posterior neck and shoulder pain and tightness. He then attended a chiropractor three times in May, and once in June, July and August 2016. There were also some visits after that time.

35. The only medical treatment he had was to attend upon general practitioners from time to time.

36. On 8 July 2016, at the request of the plaintiff’s Vincentia general practitioner, an MRI scan of the right shoulder was taken. The conclusion was expressed as follows:

There is an extensive labral tear starting at the superior aspect and involving the anterior inferior aspect and posterior inferior aspect, also associated with a large paralabral cyst. There is moderate to marked arthropathy of the glenohumeral joint.

There is supraspinatus, infraspinatus and subscapularis tendinosis with a focal intrasubstance tear of the supraspinatus tendon. There is evidence of subacromial bursitis and acromioclavicular joint moderate arthropathy.

37. For medico-legal purposes the plaintiff was sent by his solicitors to Dr Andrew Porteous, an occupational physician. The plaintiff saw him on 13 February 2017. Dr Porteous took a history of a burning type pain in the right lateral shoulder rated 3/10 on a pain scale. This increased with stretching or reaching up or out. If the plaintiff suddenly moves the shoulder to pick up something it can go to 10/10.

38. Dr Porteous also took the following history:

With regard to activities of daily living, Mr Mansell said he can do self-care, although he has trouble with dressing and using his right arm for some things. He said he had difficulty cooking and cleaning at home. He uses the left hand. He said he used to do the gardens and lawns. He said he can do the lawns at a slow pace pushing although it significantly increases his pain. He estimates that his wife is doing about an extra hour a day of domestic activity that he previously would have done.

39. Examination of the right shoulder showed significant restrictions in most planes of movement. Dr Porteous thought that the plaintiff already had degenerative change in the rotator cuff and the glenohumeral joint prior to the fall. He said that these degenerative problems had been aggravated by the fall. Dr Porteous thought that the plaintiff had a possible small labral tear, which had been aggravated by the accident.

40. Dr Porteous thought that the plaintiff would benefit from an orthopaedic surgeon review at a cost of $950. He said that surgery was probable, although he did not specify what surgery. He also talked about a shoulder replacement.

41. Dr Porteous thought that the plaintiff was not capable of returning to the manual work of glazing or of doing any other type of moderate or heavy manual work or work involving stretching or reaching up. Dr Porteous thought that the plaintiff was fit for sedentary or light duties in the future with no stretching or reaching, where he is able to work within his restrictions.

42. Dr Porteous thought that the plaintiff would be likely to get some improvement with the recommended treatment. It was not clear from his report what treatment Dr Porteous thought that the plaintiff should have.

43. The defendant sent the plaintiff to Dr Faithfull, an orthopaedic surgeon who is a specialist in the hand and upper limb. He provided three reports. I give weight to the opinion of Dr Faithfull as he is clearly more qualified than Dr Porteous to offer an opinion on the plaintiff’s shoulder problems. Dr Faithfull thought that the plaintiff had suffered a soft tissue injury to the right shoulder which had progressed on to an adhesive capsulitis. He thought that the plaintiff should see an orthopaedic surgeon for consultation. Dr Faithfull thought that there were degenerative changes in both the glenohumeral joint and the rotator cuff. The diagnosis was soft tissue injury which had aggravated pre-existing degenerative changes, plus the development of adhesive capsulitis.

44. In a second report Dr Faithfull said that adhesive capsulitis does usually respond to conservative care. The first step would be an injection of hydrocortisone followed by some physiotherapy. If there was no response to the injection then the plaintiff could have either a hydrodilatation of his glenohumeral joint or manipulation under anaesthetic. Dr Faithfull thought that the plaintiff should have an MRI arthrogram of the right shoulder before treatment starts.

45. Dr Faithfull said that a total shoulder replacement would not be the first line of treatment and this would only be considered after more conservative care. He thought that if the plaintiff did come to a total shoulder replacement, then this was because of the pre-existing degenerative changes, rather than the injury which he suffered. This too seemed to have been the view of Dr Porteous, who said that the plaintiff would come to a shoulder replacement earlier than if the accident had not occurred.

46. While Dr Faithfull was asked to set out the cost of the treatment for adhesive capsulitis, he did not provide a cost. However, he said that there would need to be three months of physiotherapy after the conservative treatment.

47. Dr Faithfull said that he could not tell whether or not the labrum required repair, as he would need to have the findings upon an MR arthrogram first. If it turned out that the labral defect was degenerative in origin, then he would not recommend a repair. Dr Faithfull also pointed out that an operation on the labrum could cause a reduced range of movement.

48. In a third report Dr Faithfull was asked to provide his opinion as to whether the plaintiff would be able to return to pre-injury work as a glazier once he recovered from the effects of surgery. Dr Faithfull said that he could not answer this question because that would depend on the findings at arthroscopy and the extent of the surgery. He thought that the plaintiff would be able to do administrative work as a glazier, and that if the plaintiff were able to obtain “the expected result from the treatment for adhesive capsulitis, he would be able to return to his pre-injury situation, that is, a shoulder with degenerative change”.

49. For medico-legal purposes the plaintiff’s solicitors sent him to Dr Tom George, a consultant psychiatrist, on 9 March 2017. The report of Dr George is in line with the evidence the plaintiff himself gave. Dr George thought that the plaintiff suffered a depressive episode which had resolved since medication had been given. Those psychological difficulties were secondary to the orthopaedic injury to the shoulder. He thought that it was important to maintain the anti-depressant therapy and to have regular medical reviews to monitor the plaintiff’s response.

50. The defendant sent the plaintiff to Dr Leonard Lee, a consultant psychiatrist, on 11 July 2017. Dr Lee took a different view of the plaintiff, suggesting that the plaintiff had feigned or exaggerated his symptoms. He said that the plaintiff did not then present as someone who suffered from a major depression with co-morbid anxiety. It is to be noted that at the time of the consultation with Dr Lee, both the plaintiff and Dr George say that the plaintiff was well and truly over his depressive episode (with the benefit of medical treatment).

51. I reject the opinion of Dr Lee regarding feigning and exaggeration on the part of the plaintiff. I have already recorded my findings about my impression of the plaintiff and of his credibility. I have also already noted that Dr Faithfull, for the defendant, found the plaintiff to be a credible historian. Further, everything the plaintiff says about the fall is corroborated by the defendant’s evidence.

THE DEFENDANT’S EVIDENCE

52. Mr Duffy was the store manager at the defendant’s Vincentia supermarket. The day after the fall he viewed the CCTV footage. On the footage he saw an iced coffee spill on the floor in aisle 7. He saw the plaintiff slip and fall in the iced coffee. He then looked back in the CCTV footage and saw that the iced coffee spill came from another customer who was shopping with an iced coffee in her hand. The liquid had come out of the bottle and onto the floor. The CCTV footage was not retained and was overwritten and lost.

53. Mr Duffy said that he could not say exactly how long before the accident the spill occurred. He initially said “it was definitely no more than an hour”. He was asked to put a minimum time on the gap between the spill and the fall and he said that he could not nominate a minimum time.

54. Mr Duffy said that the defendant’s team members had been trained that if they saw a spill on the floor their initial response was to stand with the spill and then flag for assistance to get someone to come and clean up the spill. Team members were instructed that as they walked around the store doing their tasks, they should make sure that the aisles were clean and free of hazards.

55. Mr Duffy said that there were employees in the store employed by Coles Services. The responsibility of Coles Services employees was to clean the premises and collect trolleys. He said that they too were trained to look up and down the aisle and make sure that any spills which were seen were cleaned up or called out straight away.

56. Mr Duffy was cross-examined and made the following concessions:

1. He knew that a slipping or tripping hazard on the floor of a supermarket created a risk of harm to customers;

2. The response of the defendant by way of a reasonable precaution was to have in place a system, as explained by Mr Duffy in his evidence-in-chief;

3. That system was designed to avoid customers becoming injured by a contaminant on the floor;

4. With the type of floor which was in the Vincentia store, a fluid contaminant on the floor was a slip hazard.

57. The entire floor of the Vincentia supermarket was cleaned between 5.00am and 7.00am, when the store first opened. At four o’clock in the afternoon there would have only been one Coles Services employee, and Mr Duffy said that that person should have been inspecting the floor every hour and a half. He said that he would have preferred the inspection to be an hour at the maximum, but that things happened in retail and that an hour and half was the maximum amount of time before each part of the floor was inspected by a Coles Services worker.

58. Mr Duffy acknowledged that the team members were not just looking out for problems on the floor, but were also doing jobs around the store, and depending on where they were doing those jobs, they may or may not be able to look at a particular aisle or part of the floor. No-one had a general roving role just to walk up and down the aisles looking for spills. Mr Duffy said that he could not say when someone last looked at aisle 7 before the fall. The system at Coles did not encompass aisles being inspected at prescribed intervals.

59. Mr Duffy said that when he viewed the CCTV footage, he focussed on the incident and the cause. He did not give any evidence that he saw Coles employees in aisle 7 at any time between the spill and the fall. He did not look at the footage earlier than the spill to see the last time when an employee was in the aisle. He said that he did not need to go back any further in the footage than ascertaining that there had been a spill.

60. From this I infer that Mr Duffy did not observe any Coles employee in the footage, in aisle 7, between the spill and the fall. He referred to the time between the spill and the fall as being “less than an hour”, but again used the phrase “no more than an hour between the spillage and the customer slipping” in the same passage in his evidence.

61. Mr Duffy was cross-examined about the one and a half hour time frame applicable to the Coles Services employees. He said that this time frame was not prescribed by Coles, but was his own figure. He thought they should do it quicker and go around every hour. Mr Duffy acknowledged that there was no record of when a Coles Services employee was last in aisle 7 or when a team member was in aisle 7.

62. Mr Duffy said that he would be happy if his team (that is, the store workers, not the Coles Services workers) were able to walk around in half hour intervals and he did not think the job required intervals of any less than that. Again, this half hour period was not specified in any defendant’s documents, it was just Mr Duffy’s expectation.

63. Mr Duffy was re-examined on this issue. He said:

I’d love every team member to walk around every half an hour. The fact of the matter is that I think an hour is a sufficient amount of time to be able to prevent as many injuries as we possibly can, but I think with safety, and it’s something that I’ve always told myself, is no matter what the safety issue is, any business anywhere, I’d never think we can lay safety to rest.

64. Mr Lance Creer also gave oral evidence. He was the duty manager at the time of the fall. He also watched the CCTV footage, but only as far back as the point of the fall. He did not wind it back earlier to see the cause of the spill.

ECONOMIC LOSS

65. The plaintiff was working unimpeded in his glazing business until his fall in February 2016. He continued working in the business until the MRI scan in July 2016. It was said that he had to employ people to finish off his work which he could not do and that this diminished his earnings. There was no satisfactory documentary evidence to support that submission.

66. The plaintiff tendered the Bay & Basin Glass Summary of Profit & Loss Statements for the years 2013, 2014, 2015 and 2016. In 2013 the business made a loss of $1,842. In 2014 it made a profit of $28,567. In 2015 it made a profit of $31,218. In 2016 it made a profit of $45,492. All of these amounts were nett profit, being gross profit minus overheads. Tax would have to be deducted to obtain the nett income of the plaintiff.

67. The plaintiff tendered his Notice of Assessment for the year ended 30 June 2016. His taxable income was $45,500. The assessed tax payable was $5,700.28. This gave the plaintiff earnings, nett of tax, for the year ended 30 June 2016 of $39,800. This equates to $765 nett per week.

68. I have already recited the submission that the earnings in the year ended 30 June 2016 were diminished because the plaintiff had to pay others to perform the harder work after his fall. However, contractor costs, set out in the Summary of Profit & Loss Statements, was the figure of nil. In the 2016 tax year there was a generic overhead of “All Other” being $13,788. There is no evidence which would allow me to infer that some or all of this amount represented payments to contractors.

69. With the evidence in that unsatisfactory state, the only finding I can make is that the possible earnings of the plaintiff, undiminished by any injury, was the figure of $765 nett per week.

FINDINGS OF FACT

70. I have already indicated that I accept the plaintiff as a witness of truth. I also accept the evidence of Mr Duffy and Mr Creer.

71. I accept the opinions of Dr Porteous and Dr Faithfull, but place greater weight on the opinions of Dr Faithfull. I accept the opinion of Dr George and reject the opinion of Dr Lee.

72. My findings of fact are those matters set out in the preceding paragraphs of this judgment.

73. I make the following additional findings of fact. I find that the iced coffee spill was on the floor of the supermarket for about an hour before the plaintiff fell. Mr Duffy put it at no more than an hour. However, he was not willing to commit to any time less than an hour. The defendant had the perfect means of proving how long the spill was on the floor, in that it had CCTV footage which could have been retained and shown. It is surprising that the footage was not retained, since the plaintiff had asked for it at least five times, and since the plaintiff had come back to the store asking for the defendant to pay his medical bills.

74. I find that no employee of the defendant walked into aisle 7 in the hour during which the spill lay on the floor, or if they did, they failed to observe the presence of the spill on the floor. Once again, it would have been a simple matter for the defendant to retain the footage and prove whether or not there was any inspection of aisle 7. However, having regard to my finding that the spill was there for an hour, I find that there was a failure by the defendant to do anything to observe it or clean it up in that time.

75. I further find that a reasonable system of inspection, on the evidence, would have been for aisle 7 to have been inspected no more than every 30 minutes. This was the standard set by Mr Duffy, in the absence of the defendant actually prescribing the number of inspections which should take place of any aisle in the store.

76. Previous cases have held that inspection of a supermarket floor is required every 15-20 minutes. That has usually been the finding made in cases where there is expert evidence as to the appropriate standard of inspection, or cases where the supermarket itself prescribes the time limit between inspections. It could well be that, if such evidence had been called, a finding could have been made in the present case that inspections every 15-20 minutes were required.

77. However, in the absence of such evidence, I accept the evidence of Mr Duffy and find that his regime was a reasonable one. The defendant failed to follow it.

DUTY OF CARE

78. The occupier of retail premises has a duty to take reasonable care to avoid a foreseeable risk of injury to the claimant, arising from the physical state of its land, on the assumption that the claimant uses reasonable care for their own safety: Australian Safeway Stores Pty Limited v Zaluzna [1987] 8 HCA 7; (1987) 162 CLR 479 at 488; Roads & Traffic Authorities (NSW) v Dederer [2007] HCA 42; (2007) 234 CLR 334 at [45].

79. The defendant admits that it owed a duty of care.

80. I find that the defendant owed a duty of care to avoid a foreseeable risk of injury to the plaintiff arising from a liquid being on the floor at its Vincentia premises, upon which customers might slip and fall.

BREACH OF DUTY OF CARE

81. Foreseeability of risk is not determinative of breach of duty of care: Francis v Lewis [2003] NSWCA 152 at [40]. The occupier’s obligation is that of reasonable care. Its duty is not to make the premises as safe as ‘reasonable care and skill on the part of anyone can make them’: Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 at [92]. It is not an insurer of entrants: Kocis v SE Dickens Pty Limited [1998] 3 VR 408 at 429. What constitutes the exercise of reasonable care depends on the circumstances of each case: Wilkinson v Law Courts Limited [2001] NSWCA 196 at [32].

82. The question whether the defendant breached its duty of care to the plaintiff is governed by s 5B of the Civil Liability Act 2002. The criteria in s 5B were not put in issue by the defendant and in the light of that very sensible and proper concession I make the following findings:

1. The risk was foreseeable;

2. The risk was not insignificant; and

3. In the circumstances, a reasonable person in the defendant’s position would have taken precautions against the risk of harm.

83. In the present case I find that the relevant risk is that a customer would slip on the floor if there was liquid upon it.

DID THE DEFENDANT FAIL TO TAKE PRECAUTIONS AGAINST THE RISK OF HARM WHICH A REASONABLE PERSON IN ITS POSITION WOULD HAVE TAKEN?

84. I find that the defendant failed to take reasonable precautions against the risk of a customer slipping and falling on a liquid on the floor. Those precautions were:

1. Inspecting the floor of aisle 7 at intervals of no more than 30 minutes;

2. Observing any spills on the floor during such inspection;

3. Cleaning up any spills so observed.

85. I therefore find that the defendant breached its duty of care to the plaintiff.

CAUSATION

86. Section 5D of the Civil Liability Act 2002 prescribes a “but for” test. I find that the negligence of the defendant caused the harm to the plaintiff because:

1. the breach of duty of care by the defendant was a necessary condition of the occurrence of the harm; and

2. it is appropriate that the scope of the defendant’s liability extends to the harm so caused.

87. But for the failure by the defendant to take reasonable precautions against the risk of a customer slipping and falling on a liquid on the floor, the harm to the plaintiff would not have occurred. I find that the breach of duty of care by the defendant was a necessary condition of the occurrence of the harm which occurred to the plaintiff. I also find that it is appropriate that the scope of the defendant’s liability extends to the harm so caused. Mr Duffy acknowledged in his evidence that the supermarket had an obligation to take reasonable care for the safety of both staff and customers. The defendant was running a business at the Vincentia supermarket. Mr Duffy acknowledged that customers would have been looking at the products on the shelves rather than at the floor or their feet. In those circumstances, it is appropriate that the scope of liability extends to the harm so caused.

88. There will be judgment for the plaintiff.

DAMAGES – NON-ECONOMIC LOSS

89. Damages for non-economic loss are governed by s 16 of the Civil Liability Act 2002. No damages may be awarded for non-economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case. If that condition is satisfied, then the task of the court is to fix a percentage to reflect the severity of the non-economic loss as a proportion of a most extreme case.

90. I find that the plaintiff, before the fall in the supermarket, was a relatively fit man who could pursue a quite physical occupation without any significant problems. He also pursued several physical recreational activities and helped around the house.

91. I find that after the fall in the supermarket the plaintiff suffered soft tissue injuries to his right shoulder, which was already beset with some degenerative problems. However, those problems only caused inconvenience from time to time and never stopped the plaintiff from working. At the most, he sought chiropractic treatment for what he described as “tradie’s shoulders”.

92. I accept the opinion of Dr Faithfull that the fall caused soft tissue injuries to an already degenerate right shoulder. I accept the opinion of Dr Faithfull that this has led to the condition of adhesive capsulitis. While an MRI scan shows a tear in the labrum in the right shoulder, I find that due to the plaintiff’s degenerative condition there was already a tear to some extent in the shoulder. It is impossible to say whether or not the extent of the tear in the labrum has been increased by the fall, but I find that the fall, combined with the pre-existing condition of the shoulder, led to the plaintiff developing the new condition of suffering sharp pains in the right shoulder.

93. I accept the opinion of Dr Faithfull that there is treatment available for adhesive capsulitis which will probably improve the plaintiff’s condition. However, that is not a certainty. On the balance of probabilities, the plaintiff should with such treatment improve in the future, although he may not improve at all. I find that there is a possibility but not a probability the plaintiff will have an operative repair of the tear in the labrum and I find that the plaintiff will not have a shoulder replacement, as a result of an injury suffered in the fall.

94. The plaintiff said that he has not been able to afford any specialist treatment for the right shoulder, and in view of his financial circumstances I accept him in this regard. After he receives this judgment he will have the funds to pursue the conservative treatment recommended by Dr Faithfull. I find that with funds in hand the plaintiff will pursue such treatment, rather than continuing to seek symptomatic relief only from chiropractors.

95. I find that any relief obtained from the conservative treatment for adhesive capsulitis will not be instantaneous, and I note that any such treatment includes a prolonged course of physiotherapy and rehabilitation.

96. I find that as a result of his injuries and his inability to work, the plaintiff did suffer from mild psychological difficulties which required medication. I find that he is now much improved, although he needs to continue taking his medication. Hopefully if he improves further with treatment for adhesive capsulitis, he may be able to abandon the medication. That will be a matter for medical opinion.

97. In the light of those findings I assess the plaintiff’s non-economic loss as 27% of a most extreme case. In dollars this is $61,500. That is the award for non-economic loss.

DAMAGES – OUT-OF-POCKET EXPENSES

98. Out-of-pocket expenses for the past were agreed at $2,993.50. That will be the award.

99. The evidence regarding the cost of future out-of-pocket expenses was left in a most unsatisfactory state. No costing for Dr Faithfull’s proposed treatment for adhesive capsulitis was given. I do note that some of the methods of treatment would require hospital admission, and I have already recited that extensive physiotherapy will be required.

100. While I have found that the plaintiff will probably not have operative repair of the tear in the labrum, I acknowledge that that remains a possibility. Even if he has it, Dr Faithfull cannot say whether or not the tear was entirely degenerative or was an existing tear which has been aggravated by the fall. I will take into account that there should be a small allowance for the possibility of the need for any repair of the tear to be related back to the fall.

101. Senior Counsel for the defendant very fairly submitted that in the light of the evidence (which of course came from the defendant’s own specialist), it would be appropriate to consider future out-of-pocket expenses of between $10,000 and $20,000. I note that Dr Faithfull prescribed two possible routes for treatment for adhesive capsulitis. I have also noted the need for physiotherapy. Doing the best I can, I will make an allowance of $15,000 for future out-of-pocket expenses.

DAMAGES – FUTURE COMMERCIAL CARE

102. Senior Counsel for the plaintiff very sensibly and properly abandoned any claim for gratuitous domestic services. This was because the plaintiff’s wife has been so unwell that the plaintiff could not satisfy the dual threshold in the Civil Liability Act 2002. However, the plaintiff made a claim for future care at commercial rates.

103. There was no evidence of the rate, but I indicated to both sides during submissions that I would adopt a figure of $30 per hour, which is about the same as the present prescribed rate for gratuitous domestic assistance.

104. The plaintiff can really do most things now by using his left hand or arm, or by doing things slowly. Hopefully the treatment for adhesive capsulitis will be successful, in which case the plaintiff will be able to do more with his right arm and shoulder than he can presently manage. The treatment will take some time to be administered and then to be effective. No doubt while the plaintiff is in his rehabilitation phase after the treatment is administered, he will need assistance even with the tasks he can presently do.

105. There was no report from an occupational therapist which might assist the court to ascertain how many hours per week of commercial care the plaintiff might require. There is also no evidence as to how long the plaintiff might take to get more function back into his right shoulder after he commences treatment for adhesive capsulitis.

106. Doing the best I can, I will allow two hours of commercial care per week from now onwards, for a period of three years. As I have said, hopefully after the treatment is concluded, the plaintiff will be in a position to do just about everything around the house, although he will need to take his time and take care.

102. The award for future commercial care will therefore be: $30 x 2 hours x 145.6 = $8,736.

DAMAGES – ECONOMIC LOSS AND LOSS OF EARNING CAPACITY

108. I have already found that the measure of the plaintiff’s earnings as at the date of the fall was $765 nett per week. The plaintiff ceased work on about 1 July 2016, although prior to this date he finished off his existing jobs by using contract labour. As I have already recited, there is no evidence to enable me to find that there was a diminution in his earnings during that time.

109. I find that the plaintiff has had a complete loss of earning capacity from 1 July 2016 to 3 November 2017, a period of 70 weeks.

110. The award for past economic loss will thus be: $765 x 70 weeks = $53,550.

111. Pursuant to s 13(1) of the Civil Liability Act 2002 I find that the plaintiff’s most likely future circumstances but for the injury would have been to work as a glazier in his own business until age 65. Firstly, I do not think that the plaintiff would have been able to work past that age, given that he was already suffering from “tradie’s shoulders” and given that the medical opinion which I have accepted is that he had a significant degenerative condition in his shoulders even pre-accident. Secondly, the plaintiff and his wife had plans to move in a few years to Queensland. They have brought these plans forward as a result of the plaintiff’s injury and inability to work, as well as the plaintiff’s wife’s illness. Thirdly, the illness of Mrs Mansell is chronic and debilitating. I find that it would have been a factor in the plaintiff deciding to give up work at age 65. Fourthly, if the couple had moved to Queensland in a few years time, the plaintiff would have faced the difficulty of re-establishing a glazing business in a new location.

112. For the future, I repeat my finding that I have adopted the period of three years from now for the plaintiff to have his treatment for adhesive capsulitis and improve to whatever extent he is able. On my findings he is presently completely disabled from doing work as a glazier. Given the plaintiff’s lack of education and past history, I do not think that there any occupations the plaintiff could embark upon at his age. I find that for the next three years the plaintiff will suffer a total loss of earning capacity to be measured at $765 nett per week.

113. From November 2017 to November 2020 the calculation for future loss of earning capacity is: $765 x 145.6 = $111,384.

114. In three years’ time the plaintiff will be 62.5 years old. I have already found that the plaintiff would not have worked past 65 years of age. Even without the injuries suffered in the fall, by that time his “tradie’s shoulders” would have meant that he could no longer be a glazier. Further, the ill health of his wife and the intention of the couple to move to Queensland in any event, would have meant that he would stop working.

115. The second period of loss of earning capacity runs from November 2020 to April 2023. If the plaintiff has his treatment for adhesive capsulitis and improves, then I find that in three years time he would be fit enough to go back to light glazing work. While this would involve the use of his arms above shoulder height, he would no longer have to carry heavy sheets of glass. He could do general suburban light glazing. On the evidence this is not as lucrative as heavy glazing work. I also find that the plaintiff could not go back to full-time work, even doing light glazing duties. I will therefore assess his economic loss for last 2.5 years of his notional working life at half his rate of earnings. The multiplier for 2.5 years on the 5% tables is 122.5. The deferral figure for three years is 0.864.

116. The calculation from November 2020 until notional retirement at age 65 in April 2023 is: $382.50 x 122.5 x 0.864 = $40,483.80.

117. The total award for loss of future earning capacity is: $111,384 + $40,483.80 = $151,867.80.

118. I do not apply any discount for vicissitudes. Firstly, the period of three years is so short, that I find that if uninjured in the fall, the plaintiff would have been able to work full-time as a glazier for those three years without any problems. For the second period of 2.5 years, I have already reduced the figure of weekly earnings in half, and to my mind such a reduction incorporates any necessary discount for vicissitudes.

CONCLUSION

119. There will be judgment for the plaintiff. I summarise the findings I have made above as follows:

HEAD OF DAMAGE	AMOUNT
Non-economic loss	$61,500.00
Past out-of-pocket expenses	$2,993.50
Future out-of-pocket expenses	$15,000.00
Future commercial care	$8,736.00
Past economic loss	$53,500.00
Future loss of earning capacity	$151,867.80
TOTAL	$293,597.30

120. My orders are:

1. Judgment for the plaintiff against the defendant for $293,597.30.

2. Order the defendant to pay the plaintiff’s costs.

3. Grant liberty to the parties to apply to my Associate if any different costs order is sought by a party.

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Decision last updated: 09 November 2017