Marmara v Kmart Australia Limited

[2024] NSWDC 89

District Court

New South Wales

Medium Neutral Citation:

Marmara v Kmart Australia Limited [2024] NSWDC 89

Hearing dates:

12, 13 February 2024

Date of orders:

26 March 2024

Decision date:

26 March 2024

Jurisdiction:

Civil

Before:

Gibson DCJ

Decision:

(1)   Judgment for the plaintiff.

(2)   Liberty to the parties to bring in short minutes of order reflecting the mathematically agreed quantum of the damages to be awarded, with liberty to apply if that sum cannot be agreed.

(3)   Costs reserved with liberty to apply.

(4)   Exhibits retained until further order.

Catchwords:

TORT – personal injury – Kmart customer in the self-service checkout section hit by a large and heavy trail bike box in another shopper’s trolley falling onto her from behind – duty of care – foreseeability – Kmart system for shoppers with outsize items - damages

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 5B, 5D, 13

Evidence Act 1995 (NSW), s 79

Cases Cited:

Alat v Franklins Pty Ltd (2012) 15 DCLR (NSW) 203

Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479

Clancy v Plaintiffs A, B, C and D; Bird v Plaintiffs A, B, C and D [2022] NSWCA 119; 318 IR 31

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588

Dotlic v Hannover Life Re of Australia Limited [2017] NSWSC 986

Fernandez v State of New South Wales [2019] NSWSC 1736

Grima v RFI (Aust) Pty Ltd [2013] NSWSC 1199

Health Care Corporation Pty Ltd t/as Wollongong Private Hospital v Cleary [2024] NSWCA 57

HG v The Queen (1999) 197 CLR 414

Houghton v Immer (No 155) Pty Ltd (1997) 44 NSWLR 46

Jafari v Khoury and McDonalds Australia Ltd [2019] NSWDC 394

Lang v The Queen [2023] HCA 29; (2023) 97 ALJR 758

LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490

Markus v Provincial Insurance Co Limited (1983) 25 NSWCCR 1

Mead v Kearney [2012] NSWCA 215

Merhi v Ford Motor Company of Australia Limited [2012] VSCA 147

Murko v Greenfields Narellan Holdings trading as Narellan Town Centre [2015] NSWDC 132

Penrith City Council v Parks [2004] NSWCA 201

Purkess v Crittenden (1965) 114 CLR 164

Ratewave Pty Ltd v BJ Illingby [2017] NSWCA 103

Ridolfi v Hammond [2012] NSWCA 3

South Western Sydney Local Health District v Sorbello [2017] NSWCA 201

State of New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133

Strong v Woolworths Ltd (2012) 246 CLR 182

Sullivan v Stefanidi [2009] NSWCA 313

Watts v Rake (1960) 108 CLR 158

Waugh v Kippen (1986) 160 CLR 156; [1986] HCA 12

Zamaglas v Saltalamaccia [2023] NSWDC 553

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Rita Marmara (Plaintiff)
Kmart Australia Limited (Defendant)

Representation:

Counsel:
R McIlwaine SC with R E Quickenden (Plaintiff)
D Priestley SC (Defendant)

Solicitors:
Brazel Moore Lawyers (Plaintiff)
Gilchrist Connell (Defendant)

File Number(s):

2021/00097031

Publication restriction:

Nil

Judgment

The plaintiff’s claim for damages

1. The plaintiff (by statement of claim filed on 7 April 2021 in the Gosford registry of the District Court) brings proceedings for damages arising out of the circumstances in which, on 29 September 2018, while at the checkout section of “Kmart” at Woy Woy, she was injured when one of two large mountain bikes, balanced on top of another shopper’s trolley, fell on her from behind.

2. The circumstances of the accident, which was captured on CCTV, may be briefly stated as follows. The plaintiff was waiting in one queue with a small child while another family member put purchases through the store’s “self-serve” checkout (a bay with checkouts on opposing walls), when a customer in another queue behind her, whose purchases were two mountain bikes, let go of his trolley while trying to manoeuvre these large items in the trolley through the checkout. The larger of the two bikes fell onto her, striking her back.

3. The defendant concedes that it owes the plaintiff a duty of care, the contents of which are not in dispute, but submits that the content of that duty is only a duty to take reasonable care to avoid foreseeable risk of injury to the plaintiff (Ratewave Pty Ltd v BJ Illingby [2017] NSWCA 103 at [52]-[54]), as determined from the facts of the case.

The issues for determination

4. The defendant provided a Schedule of Issues identifying the following matters as the issues for determination:

1. The cause or causes of the event of 29 September 2018.

2. The scope and content of the duty of care owed by the defendant to the plaintiff pursuant to section 5B of the Civil Liability Act 2002 (NSW) (referred to in this judgment as “the Act”).

3. Identification of the relevant risk of harm.

4. Whether the risk of harm was:

1. reasonably foreseeable; and

2. not insignificant.

5. Whether the defendant failed to take reasonable precautions to alleviate the risk of harm so as to breach any duty of care owed to the plaintiff.

6. Whether any such breach of duty of care by the defendant was causative of the plaintiff’s alleged injury and loss pursuant to section 5D of the CLA.

7. The nature and extent of any injury sustained by the plaintiff in the incident on 29 September 2018.

8. Whether any of the plaintiff’s alleged ongoing disabilities are the result of the incident on 29 September 2018, and if so to what extent, having regard in particular to the plaintiff’s medical history.

9. The Plaintiff’s credit in relation to her alleged injuries and disabilities.

10. The quantification of any recoverable injury and loss, referable to:

1. non-economic loss;

2. past and future out of pocket expenses;

3. past and future economic loss; and

4. past and future domestic assistance.

5. A statement of issues provided by the plaintiff sets out causation and quantum issues in a similar fashion and helpfully identified the following issues concerning s 5B:

1. The probability that harm would occur if care were not taken (s 5B(2)(a) of the Civil Liability Act).

2. The likely seriousness of the harm (s 5B(2)(b)).

3. The burden of taking precautions to avoid the risk of harm (s 5B(2)(d)).

4. The social utility of the activity that creates the risk of harm (s 5B(2)(d)).

The circumstances of the plaintiff’s accident

6. The whole of the incident, and the events immediately before and after it, are both clearly visible on the CCTV.

7. The plaintiff, her son, his wife and their daughter were in the self-checkout area of Kmart Woy Woy at about 12:40 PM where they were taken to a checkout by member of the defendant’s staff, who was one of several employees supervising the self-checkout process for customers paying for and collecting their purchases from this area. This area had checkout terminals displayed in a U-shape, so that customers coming through the main entry to the checkout could use a terminal on either side, which meant that their backs were turned to the customer on the opposite side. The plaintiff’s daughter-in-law commenced checking out their purchases while the plaintiff’s son was holding the trolley. The plaintiff was talking to her granddaughter.

8. At about the same time, two adult shoppers (a man and woman) came up to use the self-checkout terminal on the other side. It can be seen that one of the two very large, boxed items had simply been placed on the top of a standard shopping trolley basket while the other was underneath. The smaller of the two bikes had been slid into the trolley, but was still too big for it. It can be seen from the CCTV that the arrival of this trolley immediately drew the attention of the defendant’s staff working in the check-out area, at least one of whom came up to the shoppers as they tried to get through the check-out.

9. The plaintiff’s expert witness, Mr Jordan, made a series of detailed observations about the boxes, and how they fell, which I note included the following:

1. They were not secured in any way.

2. They were not the same size or stacked in the same way. The bigger box was resting on the small box as well as resting against the left-hand side of the frame of the top basket of the trolley. It was clear that the big box could not fit into the base of the basket of the trolley and that the box below it was impinging on the way that the box above was placed.

3. The male shopper can be seen attempting to maintain a hold on the trolley handle to prevent it from toppling due to the top-heavy overhang of the boxes. Both these boxes are leaning at an angle outwards and in the direction of the plaintiff, who has her back turned at all relevant times while she and her family are using the terminal opposite.

4. A member of the defendant staff approaches the male shopper immediately, although it is not clear what their conversation was about. Shortly afterwards, approximately one second after one of the shoppers released his grip on the handle of the trolley carrying the two bike boxes, the trolley toppled, the boxes spilled outwards and the larger of the two boxes struck the plaintiff in the shoulder, back and neck areas. The smaller box appears to be moving with the larger box, but did not strike the plaintiff. The trolley toppled in the direction of the plaintiff, which is when the larger of the two boxes in the trolley struck her.

5. The plaintiff can be seen to stagger forward under the weight of the blow. Other staff members then came to the scene.

The particulars of negligence

10. These are pleaded as follows:

1. Failing to identify the risk to patrons of transporting mountain bikes within the premises.

2. Failing to provide trollies to safely purchase and remove goods from the premises.

3. Failing to provide a safe means to take mountain bikes intended to be purchased to the cashier in the premises.

4. Failing to assist customers in the purchase of mountain bikes from the premise.

5. Failing to supervise customers in removing goods/mountain bikes from the premises.

6. Failing to prevent customers from unsafely loading trollies in the premises.

7. Failing to create a safe environment on the premises.

8. Failing to provide assistance to the customer to maintain the two mountain bikes.

9. Failing to warn the plaintiff of the risk of harm.

10. Failing to provide means to safely transport the mountain bikes.

11. Failing to prevent serious injury and harm to patrons on the premises.

12. There was a high probability that the harm would occur if care were not taken.

13. The likely seriousness of the harm was high.

14. The burden of taking precautions to avoid the risk of harm was slight.

15. Failing to have a flatbed trolley available for a customer to transport mountain bike boxes to the cashier.

16. Failing to provide a service for a customer to pick up boxes containing mountain bikes from the loading bay.

The evidence

11. The plaintiff gave evidence and was cross-examined. Her daughter-in-law gave evidence and was cross-examined on home care issues.

12. The plaintiff relied upon expert evidence from Mr Frank Jordan.

13. The defendant called the Kmart staff member who can be seen in the CCTV.

The challenge to Mr Jordan’s expertise

14. I made a ruling, before Mr Jordan was cross-examined, to admit Mr Jordan’s report into evidence and said that I would give my reasons for doing so in my judgment. These are the reasons for permitting its tender.

15. Mr Priestley SC submitted that this report was inadmissible in its entirety because Mr Jordan did not have the relevant specialised knowledge based on study, training and experience as required by s 79 of the Evidence Act 1995 (NSW). This was because his primary qualifications were in Occupational Health & Safety rather than any relevant field of specialised knowledge as to “the practices of department stores in so far as they are relevant to customer safety” (submissions, paragraph 14). To the extent that his general expertise may touch upon such matters, the practices of department stores relevant to customer safety could not be said to be a field sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience (citing HG v The Queen (1999) 197 CLR 414 at [58]).

16. In HG v The Queen, a psychologist purported to rely upon his professional training for concluding that the sex abuse perpetrated on the victim had been by someone other than the accused and some years previously. The Court held (at [41]) that this opinion was “based on a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise of a psychologist.” It was unreliable for those reasons, not because there was no field of expertise sufficiently recognised to be accepted. As the many decisions that have referred to this judgment make clear, what is to be avoided is “speculation” or “intuition” (Lang v The Queen [2023] HCA 29; (2023) 97 ALJR 758 at [13] per Kiefel CJ and Gageler J). Mr Priestley SC did not point to any portion of the report where Mr Jordan had indulged in speculation or expressed views without any factual or professional foundation. Nor could it be said that there is no field of expertise as to the safe handling of large or heavy objects (Waugh v Kippen (1986) 160 CLR 156; [1986] HCA 12 at [3] per Deane J); whether they fall on a third party, or simply injure the person transporting them, is a distinction without a difference.

17. The next issue is whether that field of expertise is the field of expertise to which Mr Jordan belongs. Implicit in Mr Priestley’s submissions is the proposition that occupational health and safety, Mr Jordan’s area of expertise, only relates to employees, and not to the members of the public who come to places where they work in order to look at or purchase items. Occupational health and safety issues are not limited to employees.

18. Mr Priestley SC also referred to the absence of standards as making it impossible or inappropriate for there to be expert evidence. Mr Jordan agreed that there are no formal standards about the best way to manage customers taking large items out of a shop through a self-checkout system, but did not consider that warranted no standard being required.

19. The facts of this case are a good example of the impact of modern technology on business methods, resulting in a gap in terms of appropriate regulation. A decade ago, self-checkout was a rare phenomenon; now this system is in use in practically every Kmart-style store. The technological advances which have resulted in self-checkout replacing traditional customer service have created new and different shopping procedures and this leads to new and different risks.

20. However, whether the system is self-checkout or not, the reality is that any customer in any store buying a large item needs to be able to transport it safely, whether the store in question is a garden or DIY shop (such as Bunnings), an electronics store, a bicycle shop or a shop of the kind that Kmart is. The mere fact that there is a self-checkout does not excuse the defendant from having staff to supervise customers taking their goods out of the store in a safe manner, particularly where these are obviously large or heavy items.

21. Another basis for objection is that if the expert’s opinion is that the staff present should have assisted the other customer with the boxes and that the defendant should have had systems in place for the purchase of bulky items, Mr Jordan does not explain how those opinions are based on any specialised knowledge that he had (Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 at [42], [129]).

22. I reject this submission. Evidence about safe loading systems, prevention of item-dropping or spillage and other work system-related is routinely given by experts; see for example Grima v RFI (Aust) Pty Ltd [2013] NSWSC 1199 at [104] (safe loading systems); Sullivan v Stefanidi [2009] NSWCA 313 at [29] (spillage). That evidence is frequently given by experts with qualifications of the same kind as those possessed by Mr Jordan. I am also satisfied that Mr Jordan used that expertise when he collected the relevant information about store systems.

Mr Jordan’s report

23. As neither the plaintiff nor her family members saw how the incident occurred, they could not give any description of how it happened. The plaintiff relied upon the CCTV and an expert report by Mr Frank Jordan (CB 52 – 96).

24. There is a preliminary difficulty in relation to his evidence, arising from evidence called by the defendant after Mr Jordan’s cross-examination was completed. Ms Loaney, one of the store assistant, gave evidence of these events and of the system in the store for heavy items of this kind. She could add nothing to the CCTV footage, but did give previously unknown evidence about the protocols in place in Kmart for the assistance of shoppers who had purchased large items. Unfortunately, her evidence was not put to Mr Jordan in cross-examination. (It is also unfortunate that a subpoena which would have resulted in the production of documents providing information about the system was not answered, even though it clearly calls for such material (Exhibits C and D).

25. Mr Jordan describes how he made inquiries at the major department stores about systems to assist shoppers leave the store safely when they had large and/or heavy purchases. He was asked about the information he collected, but the defendant’s system was not put to him. He had sought similar information from the defendant, but he was either told there was no system at all, or implied this from the information received. He wrote his report on that basis and was cross-examined on that basis.

26. Despite this, Mr Jordan’s report contains much helpful material. First, he sets out measurements for the boxes and the trolley. He sets out that the larger box was 145 cm long, 22 cm deep and 74 cm wide; the overall pack had a gross weight of 21.13 kg. The smaller box weighed 19.5kg. By comparison, a standard shopping trolley had a depth of 41 cm at the front and 49 cm at the handle end (at CB 63). These items could never have fitted into it.

27. Next, Mr Jordan set out protocols and practices for the purchase and removal in stores such as Aldi of large bulky items, noting that there were no industry standards for this and that Safe NSW had no protocols either. In the absence of industry standards, Mr Jordan states that he obtained this information from the defendant’s competitors (Aldi, Target and Big W).

28. Although he does not say so in terms, Mr Jordan clearly considered Aldi’s system to be the best. He noted that Aldi provided flatbed trolleys as well as assistance for customers loading heavy items; its customers were not permitted to move large items without the assistance of a staff member. He noted that Target and Big W offered less than Aldi, in the way of system, and there was no general standard for the services offered. However, Mr Jordan concluded, the absence of an industry standard did not excuse recognition of the problem.

29. Next, Mr Jordan concluded that the failure of the self-checkout staff to provide assistance or alternatives for the shoppers, in circumstances where their large purchases were a hazard and risk to other customers and staff, suggested either there was no process in place to assist customers, or that it had not been effectively communicated to staff, or that staff were ignoring it or otherwise disregarding it (CB 8.24). He said it would be easy to set up such a system, which would include the provision of equipment for large and bulky items, staff training, corridor width and risk assessment (CB 65 – 66). He set out in his report how a system of work for the store employees would have either eliminated or minimised the risk of accidents of this kind (CB 69 – 70) and came to the following conclusions:

“9.1 The defendant’s system for customers to remove and purchase large bulky items did not provide for the reasonable safety of the plaintiff.

9.2 The defendant did not have an alternative system in place for customers to pay and collect large bulky items, or if the defendant did have such a system in place then it was ignored, dismissed or otherwise disregarded by staff on the day.

9.3 The manner in which the two boxes had been placed and transported in the shopping trolley was not safe and was not without risks to the plaintiff.

9.4 A standard shopping trolley was not appropriate for transporting large and bulky items such as two boxed adult bikes.

9.5 An alternate system for removing and purchasing large bulky items could reasonably have been implemented by the defendant.

9.6 A member of the defendant’s staff could reasonably have intervened to remove the plaintiff from the risk of injury posed by the manner in which the two boxes were placed in the other shopper’s shopping trolley.

9.7 The same staff member could reasonably have requested the other shoppers to remove the boxes from their shopping trolley, or to maintain a secure hold on the boxes to prevent them toppling.”

Cross examination of Mr Jordan

30. Mr Jordan was cross-examined briefly, and on two topics only. First, it was put to him that that the Kmart system was the same as that in other stores, the inference being that this was all that was necessary, to which he responded:

“A. To the extent that they [the other stores] offered assistance to customers to carry boxes out or they provided a mechanism to carry the boxes out, bulky, large, bulky boxes. Kmart didn't do that. The other stores did to varying degrees and varying extents.” (Tcpt, 12 February 2024, p 59).

31. Mr Jordan went on to point out that Aldi provided a range of assistance as follows:

“Q. What about ALDI?

A. Well, at the time the - ALDI provided flatbed trolleys to carry big, large boxes out and they, they assisted customers to actually lift the bulky item onto the - onto the trolley. Customers themselves were not allowed to lift bulky items. They had to call staff assistance. And Aldi provided the trolley which the customer could take out to the car park and then they returned the trolley when they were finished loading the goods into their own car.” (Tcpt, 12 February 2024, p 59)

32. The second area of cross examination was that Mr Jordan was challenged concerning his failure to refer to the suitability of flatbed trolleys in his report. He said that he had made inquiries of Kmart and was told that flatbed trollies were unavailable:

“Q. But you did not consider in this Kmart store the suitability of the use of flatbed trolleys, did you?

A. I asked the question in Kmart stores and they don't use flatbed trolleys. It's not part of their system. That's not part of their system of work. It's not part of their system for moving bulky goods.

Q. My question to you is this: you did not consider in your report the suitability of the use of flatbed trolleys in the configuration of this store, did you?

A. I probably did consider it as part of my overall approach towards preparing the report. I mean, a flatbed trolley would've been the first thing that came to mind for an item that size so I certainly would've thought about why did they not use it.

Q. But you haven't said anything in your report about whether or not they could have been used in that store, have you?

A. Apparently they couldn't have been used, because I rang the store at one stage to inquire did they do that, and they said, "No, we don't".

Q. No, but what I'm directing your attention to is the practicability within that store of flatbed trolleys. You didn't consider that, did you?

A. I couldn't consider the practicability of them because I don't know the layout of the store or the design of the store. So whether, whether a flatbed trolley would've worked or not, I'm not quite sure, but it would've been the obvious option if it could've worked.” (Tcpt, 12 February 2024, p 60(17)-(40))

33. Mr Jordan was not cross-examined about his observations that if the defendant did have a system in place, either it had not been effectively communicated to the staff or it was being ignored. Questions concerning the efficacy of the system and place in the store were not put to him. It was in these circumstances that the defendant called a member of staff who gave evidence that such a system was in place.

The evidence of Megan Loaney

34. Ms Loaney was the staff member who was present at the time of the accident, which she said happened right in front of her. She said there was a system in place for customers with heavy items:

“Q. I just wanted to ask you this: at that time, were you aware of any ability or availability for customers to purchase bulky items in the store, without themselves taking them through the self-checkout area?

A. Yes, there was a procedure where customers could ask for, for products to be taken to the loading dock and delivered to them, in their car, so they wouldn’t have to take it out themselves.” (Tcpt, 13 February 2024, p 106).

35. Although Ms Loaney said she had seen customers do this “many times” (Tcpt 107), she agreed there were no signs on the walls telling the customers that such a service was available.

36. She was asked in cross-examination:

“Q. You were there to supervise what was happening in the area where this incident happened, is that right?

A. Yes.

Q. You were there and saw a customer enter that area with the two large boxes in the trolley?

A. That’s correct.

Q. You could have advised them to take those boxes in the trolley to a point where they could be taken to the delivery dock, is that correct?

A. Yes.

Q. But you didn’t do that?

A. I did not.” (Tcpt, 13 February 2024, p 107(10)-(28))

37. Ms Loaney’s recall of these matters was very general. A clearer picture of store policy may be seen in the incident report the defendant’s staff prepared.

The incident report

38. The incident report was as follows:

“A customer was in the SCO area paying for 2 adult bikes (Box 634 Holland and 636 Terrains Bike) and the trolley tipped, which hit the back of a customer that was standing on the opposite SCO.” (CB 48)

39. The report went on to note that the impact pushed the customer forward, but did not crush her. The accident was described as being caused by a “heavy or bulky product” and the injury as being caused by being “hit by falling object”. As to “suggested actions to prevent recurrence”, the report recommended:

“Training of SCO team members to assist with bulky products as it could have been avoided if the team member had helped the customer with the bulky bikes at the SCO.” (CB 50).

40. There is no reference in this report to any system for assisting customers with bulky products being in place, but it seems clear from the recommendation of training that any such system, if it in fact existed, had not been any part of staff training. This is a significant gap in the defendant’s system.

Application of the relevant principles to the facts

41. Section 5B provides that there is no breach of duty of care unless the risk of harm was foreseeable, not insignificant and one against which a reasonable person in the circumstances would have taken precautions to avoid. In determining whether a reasonable person would take such precautions, the court must take into account the probability that the harm would occur, the likely seriousness of the harm and the burden of taking precautions to avoid it.

42. Mr Priestley SC submits that the risk that a customer might overload a trolley with bulky items which might fall and injure someone was “relatively insignificant” (submissions, paragraph 3).

43. I do not accept this submission. The risk of customers emptying out the contents of their trolleys in a self-checkout area was that large or heavy items could result in injuries in a variety of scenarios. The self-checkout area in the Kmart store was thronged with customers concerned with their own transactions, rather than the safety of others, and who were putting their goods through the scanner at a great rate but without the benefit of the expertise of a trained check-out cashier. The possibility of items of 20 kg or more being mishandled by an untrained member of the public was not one that could or should have been treated as relatively insignificant.

44. The best evidence of probability that harm would occur if care were not taken (s 5B(2)(a)) is the defendant’s own evidence, namely the incident report and the evidence of Ms Loaney. The defendant was clearly aware of the need for there to be a system to assist customers with bulky or and/or heavy items. The defendant did not provide any training at all (as the incident report admits) or else it permitted staff who had been trained or otherwise informed about this system to disregard it. Equally importantly, there were no signs in the store to advise customers of this important service and there were (as Mr Jordan stated) no flatbed trolleys available to enable them to put into place as was possible for the more developed and efficient system in use at Aldi.

45. The presence of the system for assisting customers with heavy goods in use in the Kmart store, as well as the different (and better) system in stores such as Aldi, tells against the defendant’s submission (at paragraph 5) that the evidence does not establish it is common or standard for any particular precautions to be taken against the risk. As Mr Jordan said, it is not the case that other stores do not have a practice; the absence of a common or standard procedure in stores should not of itself excuse the defendant from complying with the system that it had itself set up.

46. There is another problem with the defendant’s evidence about its system for assisting customers with large purchasers, namely the failure to answer subpoenae that I am satisfied would have produced such evidence, or to have cross-examined Mr Jordan about that system.

47. As to the first of these (failure to provide documents under subpoena), in LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490 at 508, Hodgson J stated that the court should adopt a "robust" approach to proof where the actions of a party "whose actions have made an accurate determination so problematic" by not producing material under subpoena which later turns out to exist. Where the party who does not produce the documents is asserted to be a wrongdoer, the inference may be more readily drawn. In Houghton v Immer (No 155) Pty Ltd (1997) 44 NSWLR 46 at 59 Handley JA founded the "robust" assessment on the defendants' wrongdoing on failure to produce records.

48. As to the second (failure to cross-examine Mr Jordan about the adequacy of Kmart’s system to help shoppers with very large or heavy purchases), this omission should not entitle the defendant to argue that its system should be accepted as sufficient.

49. Mr Priestley SC further submits that it would not be reasonable to expect the defendant staff to be required to inspect every trolley to make sure they are safely loaded. Looking at the CCTV, the defendant has placed staff in the area with a specific task of supervising customers during the checking out of items in an efficient manner. They were on the lookout for problems customers were having, and the likelihood is that they scrutinised nearly all of the customers passing through the check-out for reasons other than heavy loads in any event, because this was their job, namely to make sure the customers were passing through the checkout quickly and without incident. The CCTV shows that Ms Loaney and another of the defendant’s employees in fact went straight over to the trolley with the two mountain bikes and I am satisfied this was because they were looking for difficulties and recognised the potential for problems, albeit too late to prevent the spillage causing the plaintiff to be injured.

50. The likely seriousness of the harm (s 5B(2)(b)) was high. The dimension and weight of both boxes was considerable. Although the plaintiff was struck only by the larger box, the impact of the blow was considerable. The plaintiff was holding the hand of a small child at the time. That child could have been struck by one or both boxes falling out. As the CCTV shows, Kmart customers include a wide range of vulnerable customers such as children, the elderly and persons who appear to have mobility problems.

51. The burden of taking precautions to avoid the risk of harm (s 5B(2)(d)) was trifling. Kmart was already sufficiently aware of the danger to put a system in place to assist customers with large or heavy purchases. All that was required was some staff training and notices on the wall alerting customers, particularly in areas where large or heavy items were being sold, such as the two items which were in the trolley at the time of the incident. Flatbed trolleys, if added to the system, or a system for collection of large items at the loading dock, would be an added bonus for customers who were making multiple purchases, a not uncommon practice in stores of this kind. If the other shoppers had purchased two large bikes instead of one that was smaller, or four bikes instead of two, and these items had fallen from the trolley, the injury caused could have been even more substantial than that suffered by the plaintiff.

52. I do not understand the social utility of the activity that creates the risk of harm (s 5B(2)(d)) to be challenged.

Causation

53. As the issue of causation is essentially a medical one, I have dealt with this issue in the section of this judgment concerning damages.

Conclusions concerning liability

54. Duty of care of the kind generally owed to shoppers has been established (Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479). Breach of that duty, in terms of the particulars pleaded and the relevant provisions set out above in the Civil Liability Act, has been established. The plaintiff has accordingly succeeded on liability.

Quantum

55. The plaintiff has worked since she was 15 years old, having left school in Year 8. She has been in full-time employment for the whole of her adult life apart from the period 2007 to 2013, when she was caring for her elderly mother.

56. The plaintiff enjoyed excellent health prior to these events. She had made no prior claim of back injury of any kind. She was a fit and healthy person who walked to work full-time and performed a job which had a significant physical activity component. That physical work included dragging trolleys, cleaning pots and assisting in the care of residents whose physical health was fragile in circumstances where they would have been dependent upon her strength if called upon.

57. The plaintiff has particularised the following injuries:

1. Mild right convex scoliosis of the cervical spine;

2. Aggravation of right-sided facet joint arthropathy;

3. Narrowing of the right C4/5 neural exit foramen;

4. Changes to the C5/6 level with compression of traversing C6 nerve roots bilaterally;

5. Subacromial bursitis of the right shoulder.

58. The plaintiff has particularised the following disabilities:

1. Residual pain in cervical spine;

2. Residual pain in the base of the neck, upper back, interscapular region of the thoracic spine and right periscapular region;

3. Residual pain in right shoulder

4. Brachialgia (numbness and tingling) radiating to middle and ring finger of the right hand.

The plaintiff’s medical history

59. The plaintiff was taken by ambulance from Kmart to Gosford District Hospital on the day of the accident. The clinical history given was of trauma to the cervical spine, midline tenderness but no radiculopathy. She was discharged home and stayed with her son and daughter-in-law. She immediately noticed that she could not turn her neck and was in pain.

60. The plaintiff attempted to return to work a few days later, in September 2018. She found that she was unable to perform a number of the physical tasks with which she had not had previously had difficulty, such as scrubbing pots and pans in the kitchen. She ceased employment on 3 October 2018 and continued with conservative treatment including physiotherapy. She underwent an ultrasound of the right shoulder on 15 October 2018 by reason of the continuing pain in that area. She was given a prescription for Tramal but continued to complain of neck pain. Other medications were tried, without success. By July 2019 her shoulder pain had become chronic despite increased medication. She was referred to an orthopaedic surgeon in September 2019, who noted her difficulty in elevating her arm for long periods of time and problems with daily living. Pain continued to be a significant difficulty and injections gave only limited relief, although Endep had some success.

61. The plaintiff was seen by Dr S Suttor, a spinal surgeon. He noted she complained of pain around the right paraspinal muscles which radiated down posteriorly around the scapula. She also had symptoms extending down into her hand, pain around the right shoulder and difficulties with overhead activities. He noted she had not had any previous surgery on the neck. And MRI scan of her neck demonstrated mild to moderate foraminal stenosis at C4/5 and C5/6. An MRI of the shoulder demonstrated subacromial bursitis with no evidence of cuff tear. The question of surgery was raised, as can be seen in Dr Suttor’s report to Dr Baba. Dr Bodel, an orthopaedic surgeon qualified by the plaintiff, provided a report on 15 December 2020 outlining this history.

62. On 4 November 2021, Dr Suttor performed a C4 – C6 anterior discectomy neck fusion at Westmead private hospital. She took some time to recover from the surgery. Dr Suttor noted, in a report dated 2 June 2022 that she was reporting radicular symptoms in the right arm, axial neck pain and limitation of rotation to the right. He considered it was difficult to determine whether she had fusion across the C5/C6 disc space and recommended a CT cervical spine scan.

63. The CT scan demonstrated solid fusion at the C4/5 level, but unfortunately there was no definite fusion across this disc space at C5/6; there was also some lucency around the C6 screw. This was consistent with a non-union and may have been contributing to her neck pain symptoms. This required a second fusion operation, which occurred on 6 September 2022.

64. In October 2022 the plaintiff reported the neuropathic symptoms in her arms were much improved but she was concerned about difficulties in lifting and whether she would be able to return to work.

65. On 6 February 2023 Dr A Smith, an orthopaedic surgeon, was qualified by the defendant.

66. By mid to late 2023, the plaintiff’s condition had plateaued. Her neck symptoms had settled and she had a reasonable range of movement, although she still had right shoulder pain. She continued to require pain relieving medication. By the end of the year, although her pain level improved after the second operation, in that it did not cause her to walk in a hunched way as had been the case before the operation, pain still persisted in her arms, shoulders and neck. It was at this stage that she was seen by the occupational therapist qualified by the plaintiff.

67. The plaintiff gave the following evidence about her ongoing pain and restrictions since the second fusion:

“A. I could - I can slightly turn my neck around now.

Q. How slightly? How restricted is it?

A. Just nearly to the shoulders, I can slightly turn it around now, which before I couldn't do that.

Q. Does that mean you can't rotate 90 degrees? A. No. No I cannot. Q. You're indicating there rotating something like about 40 degrees, would you agree with that?

A. Yes.

Q. Yes all right please go on?

A. But before I couldn't do that at all. And the, the relief of the pain all across, all across my shoulders that wasn't as severe after I got over the operation.

Q. Has that situation continued up to the present time?

A. Yes.

Q. Has Dr Suttor been able to offer you any further relief?

A. No.

Q. Would you be able to do the work required of you that you'd been doing before at the Hardi—

A. No.

Q. If you could work would you want to?

A. Yes.” (Tcpt, 12 February 2024, p 35(01)-(29))

The medical evidence

68. The difference between the views of the plaintiff’s and defendant’s medico-legal experts is stark.

69. Dr Bodel considers that the plaintiff suffered a soft tissue injury to the region of the right shoulder and that while subsequent investigation showed some age-related degenerative change and bursitis, her previously asymptomatic degenerative cervical disc pathology was triggered and there was a significant change in her clinical picture. Dr Suttor agrees that she has had an aggravation of a degenerative cervical spine as a result of this mild trauma which, on her history, was previously asymptomatic.

68. Dr Smith states that there was no injury to the right shoulder but that there was no requirement for spinal fusion of any kind and that the plaintiff’s symptoms consisted of embellishment of her claim for financial purposes. He is critical of the plaintiff for having “elected” to undertake a surgical treatment of any kind, let alone the two that were performed by Dr Suttor (Exhibit Y, p. 7). He says that she has made a complete recovery within months of the injury.

69. Dr Smith says that the degree of pre-existing cervical degenerative disease that the plaintiff had is what “100%” (Exhibit Y, p. 4) of people in her age group have. She has suffered a mild injury that has completely recovered. Moreover, she is not a very good embellisher, in that the symptoms she says she has could not relate to the injuries she claims. In other words, Dr Smith does not assert that the plaintiff has some other injury or condition, but rather that she has no injury at all. He confirms this in his report of 27 February 2023:

“if one consults with large numbers of patients who have symptomatic survival degenerative disease, 90% of the time the symptoms even eight from degenerative pathology at C5-6 and C6-7, no matter what the x-ray appearances are. It is very uncommon to have symptoms from pathology above C5.

She is embellishing her condition. There is no organic illness that could reduce the pattern of weakness that she exhibits in the right upper limb. Shoulder elevation and neck rotation of movements performed by the trapezius muscles and the sterno mastoid muscles respectively. Those muscles are supplied by the 11^th cranial nerve. That nerve exits the skull via its own foramen, located just behind the ear on each side. It penetrates and supplies the overlying sterno mastoid muscle, then crosses the anterior neck to penetrate and supply the trapezius on the same side. Those nerves and those muscles would not have been involved in any way in the accident that occurred on 29 September 2018. Neck rotation to the right, which is weak, is a function of the left sterno mastoid muscle.” (CB 336)

72. The picture that is painted of the plaintiff is of a woman fabricating (for this is what “embellishing” means) symptoms, in circumstances where that has led her to undergo two unnecessary operations and to take a considerable amount of pain medication, where she has hoodwinked or otherwise misled all her treating doctors and her surgeon, as well as Dr Bodel.

73. The first issue for determination is what to make of these wholly inconsistent views. As appellate courts have noted, the role of the judge when determining medicolegal issues in the absence of oral evidence or some form of opportunity for further explanation is often a difficult one. Conclave evidence was introduced to assist judges, but if all the experts do is to restate their opinions (as is the case here) the differing views remain difficult to reconcile.

74. The role of the medico-legal expert is discussed in Jafari v Khoury and McDonalds Australia Ltd [2019] NSWDC 394 (“Jafari’) at [55]-[59], where Levy SC DCJ says:

“[55] In modern litigation conducted according to the Uniform Civil Procedure Rules 2005 (NSW), where an expert is to be called to provide opinion evidence on an issue that is critical to a pivotal question of fact in dispute in the proceedings, cogent reasons must be supplied for such opinions so that questions can be resolved in an appropriately reasoned manner: UCPR r 31.27(1)(c), Sch 7.

[56] Historically, it was not always so. One commentator with firm negative views on unregulated expert evidence described the expert’s role as follows:

“Once we recognise the expert witness for what he is, an unusually privileged interloper, it becomes apparent why we must limit just how far the interloping may go. A witness cut loose from time-tested rules of evidence to engage in purely personal, idiosyncratic speculation offends legal tradition quite as much as the tradition of science.”

[Peter W Huber, Galileo’s Revenge: Junk Science in the Courtroom (1991, Harper Collins) p 204]

[57] At p 157 of the same publication, the author observed:

“The art of junk science is to brush away just enough detail to reach desired conclusions, while preserving enough to maintain an aura of authoritative science.”

[58] At p 158 of the same publication, the author went on to observe:

“Whatever his credentials, publications, or affiliations, a scientist who becomes the alter ego of a lawyer is no longer a scientist. At the very least, rules to maintain some minimum separation of egos are thus urgently needed. They are not difficult to devise.”

[59] In this jurisdiction, the historical problems reflected by those sentiments have been acknowledged and addressed by the provision of safeguards in the form UCPR r 31.27(1)(c) and UCPR Sch 7. Those provisions require experts to not only be suitably qualified by training and experience, but those rules also require the provision of cogent reasons for each opinion expressed.”

75. This quotation is apposite because one of the issues in Jafari was whether psychometric testing could demonstrate that a witness was exaggerating or lying about symptoms. Levy SC DCJ went on to stress that the task of determining credit was one for the court, not for the medico-legal expert, adding at [59]:

“It is difficult to see how an expert would, by psychological testing, be able to determine the truthfulness of a witness. That is a function of the Court.”

76. Similar observations have been made concerning treating doctors, as well as for medico-legal experts. In Dotlic v Hannover Life Re of Australia Limited [2017] NSWSC 986 at [13], Pembroke J referred to “the problem that sometimes arises in the lingering cases where medical practitioners – especially a claimant’s general practitioner – simply accept the patients account, questioning neither its truthfulness nor its completeness.” Pembroke J went on to note that:

“… Medical practitioners are not as well suited, by nature, training or circumstance, to detect lies, dishonesty, exaggeration or embellishment. The usual, and entirely understandable, starting premise of a medical practitioner is to accept and believe a patient’s account.”

77. Where a medico-legal expert is retained, and is required to assist the court by an objective analysis and enquiry into the facts, that expert should remain neutral on issues which are the function of the Court. Conclusions as to embellishment or other forms of dishonest conduct cannot but intrude into the fact-finding process that is the role of the judge, especially where the expert may not have all of the relevant information.

78. This is not the first time that a judge in this court has had to endeavour to reconcile medical opinions of so different a nature. In Zamaglas v Saltalamaccia [2023] NSWDC 553, Ainslie-Wallace ADCJ analysed conflicting reports of which, by coincidence, had been prepared by the same medico-legal experts as have been retained in this case, and where Dr Smith had said, as he does here, that there was embellishment. Her Honour summarised that evidence at [72] – [74] as follows:

“[72] The Defendant obtained an expert opinion from Dr Anthony Smith, an orthopaedic specialist.

[73] Dr Smith said that if the Plaintiff fractured the C2 vertebral body, it would appear to have healed. Equally, he could have aggravated his moderately advanced cervical degenerative disease at C6/7 and could have sustained soft tissue injuries.

[74] In short, Dr Smith said that whatever injuries the Plaintiff sustained in the accident, he had made a complete recovery and he was embellishing his symptoms. Dr Smith said that the significant restriction in neck movement would not be expected as a result of the C2 fracture and that the degenerative change at C6/7 would have no real effect on neck flexion and extension. He said that there was no physical basis for the weakness in his upper limbs nor any organic illness that could produce the pattern of weakness complained of by the Plaintiff. He concluded that the Plaintiff was embellishing his symptoms.”

79. Her Honour’s findings (at [77] – [82]) were as follows:

“[77] Dr Smith maintained his opinion that the Plaintiff made a complete recovery within six months of the accident and could have returned to his pre-accident occupation. Dr Bodel was of the view that the Plaintiff has made progress in his recovery and has improved over time, but said that the injury has impacted his capacity for employment.

[78] Dr Bodel did not agree that the Plaintiff’s complaints were confected nor that there was no basis for them. He said that the Plaintiff’s fracture and aggravation of the pre-existing degenerative changes were due to the moderate to high speed sudden deceleration in the accident and that he cannot return to his pre-accident employment.

[79] As to Dr Smith’s opinion that the Plaintiff’s complaints of pain were not anatomically consistent, Dr Bodel said that he took a more global assessment of the Plaintiff and found that he had suffered a soft tissue injury and fracture and aggravation of the pre-existing degeneration involving the whole of the neck and left upper limb. He was satisfied that the clinical presentation of the Plaintiff was due to genuine pathology.

[80] On this point of whether the Plaintiff was confecting or embellishing his symptoms, it is important to note that it was never suggested to the Plaintiff in cross-examination that this was the case.

[81] Dr Darwish, a neurosurgeon, has been consulting with the Plaintiff’s general practitioner since the accident and has produced a number of reports to the general practitioner, Dr Ali, the basis of which is the acceptance of the Plaintiff’s complaints of pain and stiffness. Further, Dr Ali did not apparently doubt the genuineness of the Plaintiff’s complaints nor the association with the accident. The report of the Vocational Assessment of the Plaintiff conducted at the Defendant’s request clearly accepts the Plaintiff’s accounts of disability and “ongoing dysfunction”.

[82] I do not find that the Plaintiff is embellishing his symptoms nor that he has made a full recovery from his injuries. But for the opinion of Dr Smith, the medical evidence, both expert and treating, is that the Plaintiff’s present disabilities are genuine, continue and have impeded his return to his former occupation.”

80. The same is the case here; these matters were not put to the plaintiff. When I drew this decision to the attention of Mr Priestley SC, I invited him to draw my attention to any suggestion he made to the plaintiff in cross examination that she had been exaggerating or embellishing his symptoms, beyond a question to the effect that she could in fact lift one arm higher than she claimed (Tcpt 110). He did not refer to any other examples where it was put to the plaintiff that she did not suffer from the pain and/or disabilities claimed.

81. What Mr Priestley SC did put to the plaintiff was something very different, namely that she did not complain of neck pain at all:

“Q. I want to suggest to you that the only symptoms you were complaining to him about at that time, was shoulder pain. What do you say to that?

A. I don't know.

Q. Does that sound reasonably possible?

A. I can't recall just saying that.

Q. Can you think of any other symptoms, apart from limited movement of your neck and shoulder pain?

A. The symptoms?

Q. Yes, any other symptoms at all - restriction or pain, this is six months after the second operation?

A. Yes, still - I still have pain, not as severe the pain on my neck, but it's still always there. And my shoulder is always sore.

Q. I suggest you didn't complain to him about neck pain, what do you say? A. Well, I went and had a neck operation.

Q. Yes, but this is six months after—

A. Yes.

Q. --the second operation—

A. Yes.

Q. You didn't have any neck pain then, did you?

A. I would've. Because I've still got it now. Maybe it - maybe I've - because I did feel a lot of relief after that operation, I have to tell you, because the pain before was absolutely terrible when it wasn't fused. It was terrible.

Q. How long was it between the two operations in which you had that severe pain, six months or less?

A. After the second operation?

Q. I'm sorry, we do have the dates but there was about six months, wasn't it, between the two operations?

A. It was a year.” (Tcpt, 12 February 2024, p 43 – 44).

82. Whether or not the plaintiff told her doctors she was in pain can generally be ascertained from the relevant medical records. The hospital admission notes confirm that the plaintiff complained of shoulder (CB 87, 95), back and neck pain (CB 85, 91) on admission and her general practitioner’s notes confirm that she complained of pain in both areas (CB 141 – 143). Dr Suttor’s reports are replete with references to the plaintiff complaining of pain in the shoulder and neck, including after the second surgery:

1. “…approximately three-year history of right shoulder and arm pain…pain up around the right paraspinal muscles that does radiate down posteriorly around the scapula …pain around the right shoulder…the neck if the more troublesome of her symptoms” (12 August 2020) (CB 312).

2. “…her main complaint is axial neck pain symptoms …limitation of rotation to the right” (2 June 2022, six months after the fusion) (CB 317).

3. “…current neck pain symptoms…quite troubled by the axial neck pain symptoms” (9 June 2022) (CB 318).

4. “…still some minor residual stiffness and discomfort and the pain” (20 October 2022, six weeks after the second fusion) (CB 319).

5. “…still particularly troubled by pain around the right shoulder that radiates mainly down the lateral aspects of the elbow, She has been trying different analgesics but with minimal benefit… right arm…limited by pain…significant pain on testing of the supraspinatus muscle layer…right greater than left should pain symptoms…she has also asked me about analgesics… (29 March 2023) (CB 320).

83. The plaintiff’s responses to these questions, namely that she did complain about pain in all areas, are corroborated by these medical reports. It is clear her treating surgeon considered these complaints to be more or less constant because he uses the word “still” several times. I accept her evidence that she did complain of pain.

84. The first difficulty with this style of questioning, in terms of the plaintiff’s credit, is that putting it to the plaintiff that she did not complain of pain is a long distance away from putting to the plaintiff that she did complain of (non-existent) pain and that this was the way she was embellishing her case.

85. The second, and more important, difficulty is that, where a claim is made of confection or embellishing, that is a serious matter that must be put to the plaintiff bringing the claim (generally supported by evidence; see, for example, Merhi v Ford Motor Company of Australia Limited [2012] VSCA 147 at [5]). It may be necessary, if that claim is supported by film, social media posts or other evidence of this kind, for that documentation to be served in compliance with UCPR r 31.10, unless a Markus ruling (Markus v Provincial Insurance Co Limited (1983) 25 NSWCCR 1) is made, but nevertheless, the questions must be put. In the present case, no such evidence was put forward, although these are the commonest means of establishing that a plaintiff is concocting, exaggerating or embellishing a claim, and no such questions were asked.

86. There is also the problem of lack of specificity of the embellishing or exaggerated symptoms (apart from putting it to her that she could raise her arm higher than she said). It was not even put to the plaintiff in a general way that she was embellishing. Those portions of her evidence which were challenged (such as the assertion that she did not complain of neck pain) are not merely contrary to the medical evidence, but counter-intuitively different to exaggeratedly complaining of pain.

87. In circumstances where the allegation of embellishment was never put to the plaintiff, and where those challenges to her credit in relation to reporting pain were obviously wrong, I accept the plaintiff as a witness of truth and reject the medico-legal opinion of Dr Smith in its entirety.

88. As noted above, this is not the first time Dr Smith has asserted that a plaintiff is guilty of embellishment. It is important to deal with evidence of this kind, in another court proceeding, with the utmost care. Mr Sheldon SC did not put to me any submission that the findings of Dr Smith were rendered less credible by reason of his having made them in other litigation involving other plaintiffs. He was correct not to make this submission. In Jafari, Levy SC DCJ responded to an attempt to canvass multiple judgments where a medico-legal witness had been challenged with the following warning:

“[52] The plaintiff’s submissions made critical reference to evidence given by Mr Haralambous in other cases where he was criticised as a witness for being argumentative and combative; as to his compliance with the Experts’ Code of Conduct; and because of an apparent unwillingness to make relevant concessions: Cosgrove-Kaye and Comcare (Compensation) [2019] AATA 1238, at [115]; Martin v TAL Life Limited [2015] VCC 1283, at [64], [71].

[53] In my view it is not necessary to further analyse and consider those particular submissions, and the cases referred to in this context because, the credibility and the reliability of an expert witness should not be determined in a blanket fashion to cover all cases in which the expert has provided opinion evidence. Such questions must be determined on a case by case basis according to the evidence adduced in each particular case. Furthermore, Mr Haralambous has no voice in these proceedings to address such matters.”

89. In the present case, I have exercised the same caution. As a result, although the reasons given by Ainsley-Wallace ADCJ for rejecting submissions of the same kind as are made to me here appear similar to the findings that I have made, I have reached those conclusions on the evidence before me, and not by any reliance whatsoever on her Honour’s views.

Causation

90. Section 5D provides:

5D General principles

(1) A determination that negligence caused particular harm comprises the following elements—

(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and

(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).

(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent—

(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

91. The causation issue here is quite narrow. The plaintiff’s evidence that she had no prior disability in her cervical spine or shoulder is not challenged; her evidence that she was working full-time job which required a good deal of physical work is not challenged. She was completely unable to return to work and complained consistently of pain although she improved after the second fusion.

91. As the conclave report makes clear, the medical evidence (apart from Dr Smith, whose opinion I do not accept) is that the injury suffered by the plaintiff, namely large containers falling onto her upper body, caused the plaintiff’s pre-existing but asymptomatic degenerative condition to become symptomatic. The defendants breach of duty of care leading to the injury was thus a necessary condition of the occurrence of the harm for the purpose of s 5D: Strong v Woolworths Ltd (2012) 246 CLR 182. These medical opinions would be enough to satisfy the causation test in relation to the right shoulder and arm unless they can be displaced by the defendant, who bears the onus of proof: Watts v Rake (1960) 108 CLR 158; Purkess v Crittenden (1965) 114 CLR 164.

92. The defendant has not discharged the onus.

Conclusions concerning liability

94. The plaintiff has established that her injuries and ongoing disabilities were caused by the negligence of the defendant. The defendant has not discharged the causation onus.

The quantum of damages

95. The defendant provided a schedule of damages as follows:

Head of Damage	Amount
Non-economic loss (less than 15% MEC)	Nil
Out-of-pocket expenses	$5,000
Future treatment	Nil
Past economic loss	Nil
Future economic loss	Nil
Past domestic assistance	Nil
Future care	Nil
Total	$5,000

96. The plaintiff’s schedule of damages is as follows:

Head of Damage

Amount

Past treatment

$10,000.00 estimate

Future treatment

$20,000.00

Past economic loss

$710 x 278 weeks

$197,380.00

Past superannuation

11%

$17,943.00

Future economic loss

6 years x 271.4 x $740 less 15%

$170,710.00

Future superannuation

12.5%

$21,338.00

Past voluntary care

7 .5 hours per week x 250 weeks at $32 per hour

$30,000.00

Future care

2 hours commercial per week at $52.30 per hour for 20 years (666.4)

$60,000.00

Non economic loss

32%

$216,600.00

Total

$743,971.00

97. The parties later agreed on past out of pocket expenses as being $3,470.55. This seems a very low sum for two fusion operations. It is lower than the pre-hearing estimate of the plaintiff. In case any out of pockets have been overlooked, I have taken the precaution of not entering judgment for a specific sum.

98. The schedules of damages could not be further apart. The defendant essentially provides only for past out of pockets. In the course of argument, Mr Priestley SC appeared to acknowledge that future out of pockets of $2,000 should be paid. He does not make any submissions of the kind made in Murko v Greenfields Narellan Holdings trading as Narellan Town Centre [2015] NSWDC 132 at [95], namely an award of zero dollars, but it is definitely at the bottom of the range.

99. The practice of providing schedules which are astronomically high or low is not one that assists the court in arriving at a fair assessment of the damages. In Alat v Franklins Pty Ltd (2012) 15 DCLR (NSW) 203, a decision of such usefulness in this court that it was included in the District Court Law Reports, Letherbarrow SC DCJ expressed concern about the practice of putting extreme positions before the court, noting (at [47]) that the defendant’s schedule of damages was approximately 5% of the amount sought by the plaintiff. The percentage in these Schedules is far greater even than the discrepancy Letherbarrow SC DCJ was concerned about. Estimates of this extreme nature are of no assistance to the court.

100. In the present case, the amount sought by the plaintiff is a not unreasonable estimate, although perhaps towards the top of the range, but the defendant’s estimate is so unrealistic as to amount to a refusal to enter into any meaningful determination of quantum issues at all. Where unrealistic estimates are provided by one of the parties, the court should be entitled to be bolder in the assessment of damages than might otherwise have been the case.

General damages

101. As to general damages, the defendant repeats its earlier submissions on causation that the medical evidence does not establish the connection between the plaintiff’s cervical disc surgery. It is submitted that the medical evidence diverges as to whether this was permanent or temporary and whether the asserted continuity of symptoms is enough on its own to establish the link (submissions, paragraph 11).

102. These submissions are in conflict with Dr Smith’s assertion that there are no real symptoms (whether continued or not) and that the plaintiff is embellishing her symptoms. I am not directed to any expert opinion provided on behalf of the plaintiff which contains an acknowledgement that the plaintiff’s symptoms are “temporary”. Her lay evidence is that her condition improved after the second fusion, but that is not an admission that she now has no symptoms.

103. Mr Priestley SC next submits that the medical evidence also diverges as to “whether the asserted continuity of symptoms is enough on its own to establish the link” (submissions, paragraph 11), although without drawing my attention to the relevant parts of the medical evidence. Where a plaintiff asserted a continuity of symptoms and that continuity is confirmed by the medical evidence, as is the case here, the onus in relation to causation lies on the defendant. That onus has not been discharged.

104. Mr Priestley SC next submits that the mechanism of the plaintiff’s injury, which showed “not apparently great force”, was “objectively unlikely to have been a cause of any need for fusion surgery” (submissions, paragraph 12). If so, I would have expected Mr Jordan to be cross-examined about this, or for this issue to have been raised in the conclave. These submissions effectively invite me to go behind the expert evidence and substitute my own opinion based on my own experience, a course warned against in Dasreef Pty Ltd v Hawchar at [44]. In Dasreef, the first instance judge drew upon his own experience as a judge in a unique specialist court, which was the first of its kind. The appellate court considered this reliance to be impermissible, despite the role played by the judges in that court not only in setting up specialised case management for dying litigants but in its very creation (as acknowledged in Hansard on a number of occasions, such as the moving speeches made by parliamentarians on 25 May 2005, on the second reading of amendments to the claims resolution legislation). If a judge in those circumstances cannot draw upon such knowledge, it would be wholly inappropriate for me to determine, without the benefit of expert evidence or anything other than the briefest of submissions, that the mechanism of the plaintiff’s injury was “objectively unlikely” to have caused the injury.

105. Mr Priestley SC next drew my attention to an asserted delay between dates of the injury and first fusion as evidence that the injury and fusion surgery cannot be connected and that the surgery was “elective”. No medical evidence is referred to on the first point, in circumstances where the plaintiff’s medical evidence makes it clear that the initial approach was to treat the injury conservatively and to consider surgery later.

106. As to the second point, this reads a meaning into the word “elective” that I have no evidence to support, namely the inference that it is an unnecessary procedure. The plaintiff did not have health insurance, which is why she was on a waiting list for elective surgery, as she did not fit the criteria for urgency which would enable her to avoid the queue.

107. The “elective surgery” system is the subject of regulation in New South Wales, a topic about which I was not addressed (a description is set out in Fernandez v State of New South Wales [2019] NSWSC 1736). Judgments routinely refer to “elective” surgery in terms where it describes surgery in a public hospital where the patient is on a waiting list; see for example Merhi v Ford Motor Company of Australia Limited at [7], where Nettle JA noted the use of waiting lists for operations such as fusions in public hospitals. I do not see the word “elective” as meaning that it was not the solution to the plaintiff’s condition and thus impliedly a frolic of the plaintiff’s own.

108. The plaintiff’s medical evidence paints a picture of the plaintiff being in chronic pain, even after the second surgery, for which she is receiving regular medication. She also has surgical scarring on the front and back of her neck. I do not accept that any of the submissions the defendant puts forward can negate these findings.

109. Taking all of the above into account, I consider that the plaintiff’s estimate of 32% for non-economic loss ($216,600.00) should be accepted.

Past and future economic loss

110. The plaintiff left school at Year 8. She has never held a driver’s licence. Although she has been fully employed for all of her teenage and adult life (apart from a period of time when she cared for her mother), those jobs have been of the simple and active kind, such as her job at the retirement home. I have no information about her having any clerical skills or being able to use a computer (although the occupational therapist notes that she is able to use a mobile phone to pay bills).

111. The plaintiff’s evidence as to how long she proposed to go on working was as follows:

“Q. Did you have any thoughts at all about when you might want to retire?

A. I, I think I would've had to retire at, at the end like as long as I could work I think it's 67 or whatever. I would’ve had to work for as long as I could.”

(Tcpt 31)

112. Mr Priestley SC identified three main problems in the plaintiff’s case on past and future economic loss:

1. The absence of evidence about the plaintiff’s residual earning capacity. He submitted that there was no “evidence in the defendant's case from a workplace expert identifying the fact that she could work as a cashier or something like that, that sort of evidence that's called up to meet what's been said by the High Court about evidentiary onus.” (Tcpt 82).

2. The “embellishment factor” (Tcpt 83). The plaintiff was embellishing her evidence and her claims of being unable to work (and the opinion of medico-legal experts based on those lies) meant that there should be at least a substantial discount in both past and future economic loss. He referred in particular to the occupational therapist’s report setting out observations of the plaintiff, when unaware of being watched, performing tasks she claimed she could not carry out. These incidents were not identified.

3. The vicissitudes factor. The vicissitudes allowance should be increased from 15% to 30% because of the plaintiff’s embellishment and her underlying ability to work.

113. As to the first of these, what must be established, if a plaintiff proves incapacity as a result of the injuries sustained in an accident, he or she is entitled to damages in respect of the incapacity: Ridolfi v Hammond [2012] NSWCA 3 at [83], citing Watts v Rake at 160 (per Dixon CJ) as to the principles in relation to pre-existing conditions. However, the defendant bears the onus of establishing that the plaintiff’s loss under the respective heads of damage arise from causes other than the defendant’s negligence: Purkess v Crittenden.

114. The plaintiff’s case on past and future economic loss is to prove a very simple case as best she can: State of New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133. She has an extremely limited education, cannot drive and has no known work skills such as ability to use a computer (as noted above, the occupational therapist notes (at CB 320) that she can use her phone for banking but, since this is the way financial transactions are done in the modern world, this is not a skill of particular note). Her former employment and similar physical strength-based jobs are all she can do.

115. Given the facts of this case, there was perhaps a degree of unconscious irony in Mr Priestley SC’s suggestion that the plaintiff should have proved that she could work as a cashier. In these days of self-checkout, QR codes and scanners, cashiers are a vanishing race and the pool of jobs for untrained persons such as the plaintiff is very small. Lack of computer skills is a serious problem for any job applicant. The plaintiff, born in 1959, was educated before technology became widespread and the social handicaps that come with being in that age bracket are significant for this reason, as well as inter-relating to other age-related difficulties.

116. As to the second and third submissions, I have rejected Dr Smith’s opinion that the plaintiff was embellishing her claims. However, the occupational therapist’s observations must also be taken into account. Mr Priestley SC drew my attention to observations made by Ms Dinley, an occupational therapist who tells the Court that she is “an honorary adviser to the Canadian, USA, UK and New Zealand Courts, and … used as a ‘virtual’ expert witness” (CB 399), which is put before me to demonstrate that her expert skills are of a very high order. She opines:

“Ms Dinley would agree with Dr Smith in that her pain and extreme losses of joint ROM in her neck and right shoulder/UL are embellished as her self-reporting and self-demonstrations conflicted in the formal V informal assessments.”

117. Ms Dinley does not identify what these embellishments are. Whatever they are, they were not put to the plaintiff in cross-examination. Rather inconsistently, at 4.1.3 of her report, Ms Dinley has retreated to the claim that “there was some embellishment and ‘drama’ surrounding the incident and her resulting injuries, with some denial of her comorbidity impact”. There is no identification of any, let alone “some” or of any “’drama’”.

118. Ms Dinley’s long report covers many topics, ranging from the definition of “gratuitous” in the Oxford and Merriam dictionaries to advice given by a speaker at a conference in Otago in 2018. It would have been more helpful if consideration had been given to explanation of the asserted inconsistencies between her complaints and what she is actually capable of.

119. The plaintiff also served a lengthy occupational therapist report which was, if anything, even less helpful than Ms Dinley’s report. Neither report provides assistance in determining whether the plaintiff has a capacity for work in the future or that she had such a capacity in the past.

120. The weight that I give to these reports, given their interweaving of medical issues which should be left to the doctors and evidentiary conclusions that should be left to the court, is very slight.

121. The defendant bears the onus. The plaintiff’s written submissions (at paragraph 12) draw to my attention that, while a defendant asserts the plaintiff has a retained capacity to earn, no evidence has been provided to discharge the onus as required: Mead v Kearney [2012] NSWCA 215; South Western Sydney Local Health District v Sorbello [2017] NSWCA 201.

122. The plaintiff’s evidence was that she would have continued to work for as long as she could. She was 59 years old at the time of the accident and is presently 64 years old. I am satisfied that she would have worked until the age of 67. The average earnings for the past is $728. The plaintiff estimates, for the past 5.5 years, a sum of $208,208 plus compulsory employer superannuation contribution of 11%. The current comparable earnings at her former place of work are approximately $800 net per week, which results in a sum of $157,352, plus compulsory employer superannuation contribution.

123. As to future economic loss, s 13 of the CLA applies to all future economic loss claimed, including future medical expenses.

124. There are a number of imponderables concerning the plaintiff’s future employability taking into account her age, her future employability and the length of time for which she is likely to have continued working. Where there is this degree of uncertainty, consideration may be given to awarding damages for future economic loss by way of a buffer (Penrith City Council v Parks [2004] NSWCA 201 at [5]), if it is difficult or impossible to be more precise. This does not obviate the need to comply with s13 which requires the supplying of “some meaningful and transparent basis for the award of damages for future economic loss”: Health Care Corporation Pty Ltd t/as Wollongong Private Hospital v Cleary [2024] NSWCA 57 at [103], following Clancy v Plaintiffs A, B, C and D; Bird v Plaintiffs A, B, C and D [2022] NSWCA 119; 318 IR 31 at [277]. I am satisfied that that basis exists.

125. I propose to award the amount sought for past economic loss in full ($197,380.00) together with superannuation at 11% ($17,943.00),

126. I propose, however, to award future economic loss by way of a buffer. The question is what the size of the buffer should be, and I am handicapped in this regard by the defendant’s steadfast adherence to no award being made, although there is a fallback claim for increased vicissitudes. While I do not propose to increase the vicissitudes allowance, I consider that a buffer is the correct way to approach future economic loss. I agree with Mr Priestley SC’s submissions concerning the uncertainties of age and employability for the plaintiff. I propose to award a substantial buffer which will include future superannuation entitlements. I put this at the figure of $100,000.

Past and future home care

127. The plaintiff said that since the date of her injury she has required additional assistance from her daughter-in-law Tracey as well as her son:

“Q. As we know you live in Sydney and Justin and Tracey live on the Central Coast?

A. That's correct.

Q. Can we take to say the first 12 months after the incident on 29 September did Tracey need to do things for you?

A. Yes she did.

Q. Can you first of all, and we'll break it up this way, can you explain what Tracey did, she living on the Central Coast and you living in Sydney, where she did it? And if you can take a week as a reasonable average how much time did Tracey spend doing things for you that you couldn't do for yourself? Are you with me on that?

A. Yes.

Q. You understand what—

A. Six to eight hours a week, on the weekend she'd come down. She, she'd wipe down all the kitchen benches down, the cupboards, do the fridge, change my sheets, vacuum, mop, bathrooms, scrub everything out.

Q. Did she help you with shopping?

A. Yes she'd do all my shopping she does - yes she does, she does all my shopping.

Q. We're just dealing with the first 12 months to start with.

A. Yeah.

Q. Has that assistance from Tracey continued?

A. Yes it has.

Q. Does it continue at the same or a different level?

A. Same level yeah.

Q. When she comes down does Justin come down with her?

A. Sometimes, sometimes he does yes.

Q. Does he do anything?

A. Maintenance work, if I need anything done like that, garbages - I don't have a - yeah.

Q. When you say "garbages", do you mean he takes the garbage out for you?

A. Yes, he takes the garbage out.

Q. Is there a regular day that your garbage is collected?

A. Sundays.

Q. That's in addition to the six to eight hours that Tracey does?

A. That's correct.” (Tcpt, 12 February 2024, p 36(06)-(38))

128. In addition, the plaintiff spends a great amount of time in their home, where Tracey does “everything” (Tcpt 36):

Q. Do you go and visit them at their home on the Central Coast?

A. I do.

Q. When you're there, does Tracey do things for you?

A. Everything I - yes, she does.”

129. The defendant submits that even on the plaintiff’s own occupational therapist report, the plaintiff falls below the threshold for past care. As was the case in relation to economic loss, I found both occupational therapists’ report to be of little or no benefit or assistance concerning home care, and I prefer the evidence of the plaintiff and her daughter-in-law. They were witnesses of truth who gave realistic estimates in terms of what work was done, when,, and by whom. I accept that the plaintiff required a great deal of assistance from both her daughter-in-law and her son in terms of performing household tasks, and that the amount of time she has spent at their home very significantly increased as a result. I am satisfied that this was a practical way of dealing with the plaintiff’s need for assistance.

129. The amount sought to past gratuitous care is seven hours per week at $34 per hour or 286 weeks which total $68,068. I propose to award this sum in full although I suspect that there has been a tapering-off from about six months since the second operation, to the extent that such assistance is likely to fall well below the threshold in future.

130. The amount claimed for past gratuitous care is calculated on $66 per hour for the agreed rate for a standard two hours per week for commercial care. This is a total of $68,068.

131. No evidence was given as to commercial care being provided to date or for that matter being provided in the future. The likelihood is that the plaintiff will continue to rely upon assistance of a gratuitous nature from her daughter and that this will fall well below any threshold. Accordingly I do not propose to make any allowance for future commercial care.

Past and Future out of pocket expenses

133. I have expressed some doubts about the adequacy of the sum for past out of pockets and invite the parties to confirm the sum agreed to, as it was given in some haste during final submissions. Whatever that sum is, it can be accommodated in the Short Minutes of Order which I have directed the parties to bring in.

134. The defendant submits (written submissions, paragraph 20) that the plaintiff takes only “some” medications which are presently minimal. That was not the plaintiff’s evidence. She told the court that she continues to take Gabapentin and Panadol and to see her general practitioner. (Tcpt 36 – 37). She agreed that she had not seen her specialist for approximately one year. No claim is made for physiotherapy; when asked, the plaintiff said that this had never been suggested for her.

135. A modest sum by way of a buffer for future medication and visits to the general practitioner should be allowed for, but this should be discounted for the same reason as future economic loss. I fix this sum as $10,000.

Concluding observations and orders

136. I have prepared a provisional table of damages, subject to the position of past out of pockets being clarified:

Head of Damage	Amount
Non-economic loss (32%)	$216,600.00
Out-of-pocket expenses	$3,470.55 (To be confirmed by the parties)
Future treatment	$10,000
Past economic loss ($197,380.00) and superannuation ($17,943.00)	$215,323
Future economic loss including superannuation (buffer)	$100,000
Past domestic assistance	$68,068.00
Future care	NIL
Total	$613,461.55 (subject to out of pockets being confirmed)

137. I have reserved the issue of costs, with liberty to apply.

Orders

1. Judgment for the plaintiff.

2. Liberty to the parties to bring in short minutes of order reflecting the mathematically agreed quantum of the damages to be awarded, with liberty to apply if that sum cannot be agreed.

3. Costs reserved with liberty to apply.

4. Exhibits retained until further order.

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Decision last updated: 26 March 2024