McDonald, Dorothy Emily v Woolworths (Victoria) Pty Ltd
[1999] TASSC 41
•14 April 1999
[1999] TASSC 41
PARTIES: McDONALD, Dorothy Emily
v
WOOLWORTHS (VICTORIA) PTY LTD
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 1028/1995
DELIVERED: 14 April 1999
HEARING DATE/S: 4 and 5 February 1999
JUDGMENT OF: Evans J
CATCHWORDS:
Damages - Particular awards of general damages - Tasmania - Knee and wrist injuries - Woman aged 73 (77 at trial) - Diminished enjoyment of life - Award $12,703 (including $10,000 pain and suffering) - Reduced by 20% for contributory negligence.
Aust Dig Damages [61]
Torts - Negligence - Essentials of action for negligence - Duty of care - Reasonable foreseeability of damage - Duty of occupier - Employee of defendant deviated from usual open store practice - Plaintiff fell over stack of cartons left in aisle awaiting unpacking - Failure of employee to follow open store procedure causative of accident - Risk of injury foreseeable and not too remote - Breach of duty.
The Council of the Shire of Wyong v Shirt and Others (1980 - 1981) 146 CLR 40, applied.
Aust Dig Torts [32]
Torts - Contributory negligence - Apportionment of responsibility and damages - Apportionment in particular situations and cases - Plaintiff not entitled to assume no obstructions in aisle - Failed to keep a proper lookout - Fell over stack of cartons left in aisle - Defendant's failure to account for plaintiff's inadvertence and lack of care does not preclude plaintiff from liability for contributory negligence - Responsibility assessed at 80% defendant and 20% plaintiff.
Aust Dig Torts [71]
REPRESENTATION:
Counsel:
Plaintiff: P E Barker
Defendant: A B Walker
Solicitors:
Plaintiff: C H Hobbs
Defendant: Dobson Mitchell & Allport
Judgment category classification:
Judgment ID Number: [1999] TASSC 41
Number of pages: 8
Serial No 41/1999
File No 1028/1995
DOROTHY EMILY McDONALD v WOOLWORTHS (VICTORIA) PTY LTD
trading as PURITY SUPERMARKETS
REASONS FOR JUDGMENT EVANS J
14 April 1999
The plaintiff sues for damages for personal injuries she suffered when she fell in the Purity Supermarket at Eady Street, Glenorchy. The defendant is the occupier and operator of the supermarket. At the time of the accident the plaintiff was 73 years of age.
The accident
At about 10.15am on Monday, 27 March 1995, the plaintiff was shopping in the defendant's supermarket. She was carrying a plastic basket provided by the supermarket for the use of customers. After placing several items in the basket, she went to a freezer in the dairy section for some packets of frozen apple pies. The freezer was a long, open topped tub. It was approximately waist high to the plaintiff. Based on photographs and plans, I estimate that the freezer was about eighteen metres long, and that the aisle in front of the freezer in the vicinity of the plaintiff's fall was about three metres wide.
As the plaintiff moved along the aisle to the point where she anticipated the pies were, the freezer was on her right. It had a plain yellow front, topped by a brown strip approximately twenty centimetres wide. A lip, which protruded about five centimetres, separated the brown strip from the lower yellow portion of the front. At the base of the front, there was a metal "kick board", approximately fifteen centimetres high.
Upon locating the pies, the plaintiff leant into the freezer and took out two packets, placing them in the carrying basket hanging from her left forearm. She then turned to her left to walk on down the aisle to the checkout area. As she moved off, she came into contact with a stack of approximately six cartons of frozen pies on the aisle floor. This contact caused her to stumble, she fell to the floor and suffered the injuries for which she claims damages.
The cartons had been left in the aisle by Mr Gilley who was second-in-charge of the dairy section. His intention was to unpack the contents of the cartons into the pie section of the freezer, but he had not got to that task before the plaintiff's fall. At the time of the fall he was unpacking cartons of chicken. He saw the plaintiff fall.
The plaintiff believes that the cartons were placed beside her as she was getting the pie packets from the freezer. The basis for her belief is that she did not see the cartons before her fall and she recalls Mr Gilley apologising to her after her fall and saying that he had just put the cartons there.
Mr Gilley spoke to the plaintiff immediately after she fell and a little later at the service desk where she was reporting her fall to the manager of the supermarket and the safety officer. In the course of these discussions, Mr Gilley said words to the effect that he was sorry about what had happened to the plaintiff and she understood him to say that he had just put the cartons in the aisle. Whatever Mr Gilley's words were, I am satisfied that he did not mean that he had put the cartons in the aisle as the plaintiff was standing at the freezer and that that is not what actually occurred.
Mr Gilley's evidence is that the cartons had been in the aisle for about fifteen minutes before the plaintiff's fall. Accepting, as I do, Mr Gilley's evidence that he began unloading the pallet from which the cartons came, at about 9am, and that the task took about fifteen minutes, the cartons would have been in the aisle by about 9.15am. An Incident Report Form prepared by the store safety officer records the time of the plaintiff's fall at 10.15am. In the circumstances, I am satisfied that the cartons had been in the aisle from between fifteen and sixty minutes prior to the plaintiff's fall.
On the plaintiff's evidence, it would be open to find that the cartons were stacked some distance from the front of the freezer. Mr Gilley's evidence is that he stacked the cartons next to the front of the freezer, but not hard up against it so as to avoid the protruding lip which ran along the freezer front. The plaintiff's evidence on the position of the cartons was confused. As she was not aware of the cartons until after she fell, and by that time she was in a distressed state, I consider her evidence on the precise position of the cartons to be unreliable. Mr Gilley's evidence as to the position of the cartons was not shaken in cross-examination, and I accept it.
Stocking procedures
Generally the procedure adopted for stocking the supermarket varied dependent upon whether it was open or closed. Ordinarily, the dairy section was stocked with frozen products before the supermarket opened at 8am. The frozen stock was delivered on pallets at about 7am each morning. A pallet containing items required to restock the dairy section was moved to that section with the aid of a pallet jack. Each pallet contained about fifty cartons of varying sizes. Cartons of the size of the cartons the plaintiff fell over were quite common, they were about twenty centimetres by fifteen centimetres by forty centimetres. The cartons were manually removed from the pallet and carried to where they were needed. They were stacked up in front of the freezer or refrigerated display area where they were to be unpacked. After removing the empty pallet, the person performing the task unpacked the contents of the cartons, placing them in the appropriate section of a freezer or display area. I refer to this method of stocking the supermarket as the closed store procedure.
Stock needed to be replenished from time to time during the course of a shopping day. The method normally used to stock the supermarket when it was open was to take cartons of the required stock to wherever it was needed and immediately unpack the contents. In the case of frozen goods for the dairy section, this involved unpacking the pallet in the refrigerated storeroom and taking the cartons from there to where they were required. Depending on the quantity of stock needed, the cartons were carried manually or moved with the assistance of a silver flat tray trolley, or one of the trolleys the supermarket provided for the use of customers. The latter can carry up to about sixteen cartons. I refer to this method of stocking the store as the open store procedure.
For relevant purposes, the key difference between the two procedures is that the closed store procedure involves leaving piles of cartons unattended in the aisles of the supermarket, whilst the open store procedure does not.
Stocking on the day of the accident
On the morning of the accident, for some now unknown reason, the pallets of frozen goods for the dairy section were not delivered until about 9am, an hour after the supermarket had opened. Two pallets were delivered. One pallet was placed in the refrigerated storeroom. Mr Gilley was anxious to get the stock from the other pallet out on display as soon as possible. He considered that the closed store procedure for stocking was the quickest and most efficient means of achieving that end. He accordingly moved the pallet into the dairy section and unloaded it. The cartons were distributed throughout the dairy section, although primarily around the island created by the long freezer where the plaintiff fell. Mr Gilley stacked approximately six cartons of frozen pies adjacent to the front of the freezer where those cartons were to be unpacked. The stack was a little lower than the height of the freezer, the top of the stack was "just into the brown section, along the top of the front of the freezer." Cartons were stacked elsewhere as needed. There was a stack in front of the ice cream section and a stack in front of the chicken section. In all, Mr Gilley estimates that there were about ten to eleven stacks of various items. The stacks contained up to six cartons.
Having removed the empty pallet, Mr Gilley commenced unpacking the cartons. He started with the cartons of ice cream as he wanted to get them into the freezer first. By the time of the plaintiff's fall he had unpacked all but about two of the stacks of cartons. When she fell, he was working on cartons of chicken at one end of the freezer cabinet. He saw the plaintiff fall and went to her assistance.
Duty of care
The defendant owed a duty of care to its customers. The test to be applied in determining whether that duty of care has been breached is laid down by Mason J (as he then was) in The Council of the Shire of Wyong v Shirt and Others (1980 - 1981) 146 CLR 40 at 47 - 48:
"In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position."
The application of the test involves an assessment of whether a reasonable person in the position of the defendant would have foreseen that leaving a stack of cartons in the supermarket aisle involved a risk of injury to users of the supermarket. If so, the assessment of whether there has been a breach of the duty of care because of the response to that foreseeable risk involves a consideration of:
· the magnitude of the risk;
· the degree of the probability of its occurrence;
· the expense, difficulty and inconvenience of taking alleviating action; and
· any conflicting responsibilities of the defendant.
The stack of cartons was at the side of the aisle. The stack was less than the height of the adjacent freezer, which itself was about waist height to an adult. The bulk of the stack was not so great as to make it inevitable that a person moving up or down the aisle would see it. End-on, which is all that such a person would see, the stack was approximately twenty centimetres wide and ninety centimetres high. The light brown colour of the cardboard cartons in the stack was not startlingly different to the yellow and brown colours of the freezer front.
Supermarket customers include the elderly and others who, for various reasons, may be unstable on their feet, as well as customers with poor sight. Not uncommonly, customers carry baskets or items to be purchased which can interfere with their view of the floor. Customers occasionally fail to check where they are walking, due to haste or distractions such as items displayed for sale. As items are displayed along the side of aisles, there is a tendency for customers to move along an aisle looking to the side, rather than in the direction in which they are going.
A reasonable person in the position of the defendant, who considered whether leaving a stack of cartons on the side of the aisle of the supermarket involved a risk of injury to users of the supermarket, must have concluded that it did. Mr Gilley readily acknowledged that there was a risk of customers falling over obstructions left in an aisle.
As to the stack of cartons which the plaintiff fell over, in my view, there was a real risk that a customer moving along the front of the freezer as he or she checked its contents, could stumble into the cartons without seeing them.
Mr Gilley gave evidence that on previous occasions when stock had been delivered late, he had adopted the same unpacking procedure, that is, the closed store procedure, which involved leaving piles of cartons in the aisles to await unpacking. In his nine to ten years of experience prior to the plaintiff's fall, Mr Gilley had not had a problem with a customer falling over a pile of cartons. This does not persuade me that the likelihood of a fall occurring was so remote as to justify ignoring that risk. Mr Gilley said that late deliveries occurred very rarely, so there would not have been many occasions on which he had adopted the closed store procedure for stocking the store when it was open.
Mr Gilley stocked the store as he did because he wanted to get the stock out as quickly as possible and he considered the procedure was quick and efficient. Whilst he was aware of the risk of customers stumbling over obstructions left in an aisle, such as a pile of cartons, he did not give that risk any thought.
The risk created by leaving the cartons in the aisle could have been avoided without expense or difficulty. Had Mr Gilley adopted the open store procedure, no cartons would have been left in the aisle to await unpacking. Mr Gilley would have unloaded the pallet in the storeroom, placed the necessary cartons on a trolley and taken them where they were needed. He would have unpacked the contents of the cartons there and then. At no time would a pile of cartons have been left unattended in an aisle.
When customers are about, the open store procedure for stocking the store is inherently safer than the closed store procedure. The closed store procedure adopted by Mr Gilley on the day of the plaintiff's fall, resulted in ten to eleven stacks of cartons being left in the aisles of the supermarket. The size of the stacks varied and they would not have been as immediately apparent as a trolley loaded with cartons accompanied by a worker who was unpacking the contents of the cartons and placing them on display. That is the obstruction which would have been created had Mr Gilley adopted the open store procedure. The risk of someone stumbling into that single obstruction was significantly less than the risk of them stumbling over up to ten or eleven unattended stacks of cartons.
Pursuant to the open store procedure, it was necessary to make a number of trips with a trolley through the store moving the cartons from the pallet to wherever they were required. Counsel for the defendant submits that these trips constituted a potential risk to customers and the avoidance of this risk warranted Mr Gilley's adoption of the closed store procedure, rather than the open store procedure. I do not agree. Mr Gilley could and should have used one of the supermarket trolleys provided for customers. They are regularly in use in supermarkets. Customers expect their presence and look out for them. Whilst there are risks involved in the use of a trolley, the risks do not justify the adoption of the closed store stocking procedure which involved leaving up to eleven unattended stacks of cartons in aisles throughout the supermarket whilst customers were in the store.
Had Mr Gilley adopted the open store procedure to stock the dairy section on the morning of the plaintiff's accident, her fall would not have occurred. No stack of cartons would have been left in the aisle. The use of a procedure which involved leaving an unattended stack of cartons in the aisle amounted to a breach of the defendant's duty of care to the plaintiff and caused her injuries.
Contributory negligence
Had the plaintiff kept a proper lookout, she would have seen the stack of cartons. She was not entitled to assume that there would be no obstructions in the aisle. However, it was unusual for cartons to be left where they were. This was noted by the store safety officer in her Incident Report Form. The front of the freezer was not a display area. The freezer was set up in a manner which encouraged customers to work their way along its front as they checked its contents. The plaintiff, having leant into the freezer to collect the packets she required, did not notice the cartons as she turned and moved off. To a limited extent, her view of the cartons would have been interfered with by the basket she was carrying.
The defendant was responsible for the creation of the obstruction in a place where it was not to have been expected, although it was reasonably apparent. The inadvertence of customers was something the defendant had to take into account.
Both the plaintiff and defendant departed from the standard of care required of them. I assess the defendant's responsibility at 80 per cent and the plaintiff's responsibility at 20 per cent.
Injuries
The plaintiff is now 77 years of age and has a life expectancy of 10.75 years.
When the plaintiff stumbled over the cartons she fell heavily. The weight of her fall was taken by her right knee and left hand. She landed on the shopping basket she was carrying. It dug into her left ribs. She was winded by the fall and had difficulty getting her breath back. The plaintiff declined an offer by one of the defendant's employees to drive her home. She drove herself home and then to her general medical practitioner Dr Wayne.
Dr Wayne prescribed pain killing medication. The next day the plaintiff returned to Dr Wayne because of her pain. He arranged for x-rays to be taken and for a brace to be fitted to her left arm.
As a consequence of the fall, the plaintiff suffered significant trauma to her left wrist, right knee and left ribs, and this caused her considerable pain. Immediately following her fall she was most concerned about her rib pain. The bruising in this area made it difficult and painful for her to breath. As the bruising cleared, so did her rib pain. Her ribs have not been an ongoing problem.
The plaintiff's orthopaedic surgeon, Mr Binns, says that at the time of her fall she had degenerative changes in her left knee and left wrist and the joint at the base of her left thumb. He says that these changes were not caused by her fall, but a fall such as she had could well have precipitated symptoms from the underlying degeneration.
The plaintiff fell on the front of her right knee. This caused swelling in the area of her right knee and pain radiating around to the left side of her knee. The swelling cleared up but the pain has remained. She was provided with an elastic circular stocking-like bandage to support her knee. She found that wearing the support was a nuisance and it did not help. She obtains some relief from the use of an arthritis cream which she uses daily. It is available in supermarkets. She uses it on her wrist as well as her knee.
She suffers continuing pain in her knee and has difficulty walking, particularly on stairs or slopes. She cannot kneel. She takes Panadeine Forte, Panamax, Voltaren and Naprosyn to ease the pain and relieve inflammation. On occasions the knee swells and she needs to rest it to reduce the swelling. She complains of cracking in the left side of her knee when she walks. I understand this to be a complaint of crepitus.
Immediately following the fall, the plaintiff was conscious of pain in her left wrist. The pain radiated up her arm from her thumb. The pain was initially present all the time, and this continued for quite a few weeks. It was worse when she moved her wrist. She was fitted with a wrist brace which extended from her thumb to her elbow. She wore the brace for about three months. She still uses it occasionally if her wrist aches a lot. She wears an elastic wrist band for support when she performs some tasks such as driving her car.
Second wrist injury
On 16 December 1997, the plaintiff fell as she was leaving a restaurant. She missed a step which was the same colour as the footpath. She broke her left wrist, suffering a comminuted fracture of the distal radius and a fracture of the distal left ulna. The fracture was reduced under anaesthetic and the arm was put in plaster for three months. She subsequently received physiotherapy for a few months. There was a malunion of her distal left radius and she has a deformity of her left wrist with a shortening of the radius and radial deviation of the hand. She has about half the normal range of movement of her left wrist. She has pain on stressing the inferior radio-ulna joint and there is crepitus in the joint on stressing it and on forearm rotation. Her grip is weak when using her hand in the fist position, and her pinch grip is also weak. Mr Binns says that her second wrist injury has left her with a significant disability in her left wrist which is now quite severely deformed and painful.
The plaintiff's claim for damages was not put on the basis that the injuries she suffered when she fell in the supermarket on 25 March 1995 were causative of the fall which resulted in her second wrist injury. I do not understand it to have been contended that the consequences of her second wrist injury were more severe because of her first wrist injury. In any event, I should say that I am not satisfied that either of these matters have been established. The onus referable to them is on the plaintiff. Edwards v Hourigan and Others [1968] Qld R 202.
The trauma of the plaintiff's first fall precipitated symptoms from the underlying degenerative changes to her wrist. The second wrist injury was more severe than the first wrist injury. The wrist was broken; it is deformed and she now only has about half the normal range of movement in her wrist. She suffers from more wrist pain now than she did after her first wrist injury. Her second fall is just as likely, if not more likely than her first fall, to have precipitated symptoms from the underlying degenerative changes to her wrists. It is probable that even if the plaintiff's first fall had not occurred she would, as a consequence of her second wrist injury, be suffering from the wrist symptoms she now complains of. The effects of the first injury to her wrist have been subsumed by the second injury. The contingency that the plaintiff might suffer a further wrist injury subsequent to her first injury has become an actuality. As the effects of the plaintiff's first wrist injury have been overtaken by the effects of her second wrist injury, she can not substantiate an ongoing claim for damages referable to her wrist subsequent to 16 December 1997.
Damages
Prior to her fall in the supermarket, the plaintiff enjoyed activities such as gardening, lawn bowls, knitting and sewing. She was also able to perform housework and other chores. After her fall she endeavoured to resume lawn bowls, but as a consequence of the combined effect of her knee and wrist injuries, she was unable to continue. The combination of these injuries also substantially reduced her capacity to garden. She has been unable to knit or sew because of her wrist injury. I consider it likely that following her second wrist injury she would in any event have been unable to play lawn bowls, knit or sew, and would have had a substantially reduced capacity for gardening. She said that because of her wrist injury she would not be able to garden, even if she had no problem with her knee, and that as a consequence of her wrist injury she was unable to lift a lawn bowling ball. Whilst her second wrist injury also impacts on her ability to do housework and domestic chores, it is apparent that her knee disability plays an ongoing part in her reduced capacity in these areas. Her knee continues to give her pain and restricts her mobility.
For pain and suffering and loss of amenities, I award the plaintiff damages of $10,000.
The plaintiff has a claim for past pharmaceutical and related expenses. Pharmaceutical expenses of $285.32 are detailed in a statement from her local pharmacy for the period from the date of her accident to 9 March 1998. That account includes items referable to the plaintiff's wrist, incurred subsequent to the date of her second wrist injury. These items are not recoverable. The plaintiff is entitled to be recompensed for pharmaceutical expenses which were not incurred at her local pharmacy, and for related expenses such as the cream she applies to her leg and wrist. I allow the plaintiff $300 for past pharmaceutical and related expenses. In assessing her claim for future pharmaceutical and related expenses I make no allowance for expenses she may suffer referable to her wrist. I allow $300 for this item.
The following claims for special damages are agreed:
Past medical expenses -
Commonwealth Department of Veterans' Affairs $766.70 Health Insurance Commission $486.15
Total $1,253.00
Past domestic expenses $50.00
Past travelling expenses $150.00
A claim is made for future medical expenses. I expect that in the ordinary course, and as a consequence of the plaintiff's ongoing disabilities arising from her second wrist injury, she will attend her general practitioner from time to time. The frequency of her attendances will be increased a little because of her need for medical assistance in relation to her knee. A claim is also made for the possibility of surgery on her knee at some time in the future. The plaintiff does not want to undergo any further surgery and I consider that it is unlikely that she will do so. For this possibility and future medical expenses, I allow the plaintiff $650.
In summary, I assess the plaintiff's claim as follows:
Pain and suffering and loss of amenities
$10,000.00 Past medical expenses $1,253.00
Past domestic expenses $50.00
Past travelling expenses $150.00
Past pharmaceutical and related expenses $300.00
Future pharmaceutical and related expenses $300.00
Future medical expenses $650.00
$12,703.00 Less 20% contributory negligence
$2,540.60
TOTAL $10,162.40
=======
There will be judgment for the plaintiff in the sum of $10,162.40.
0
0
0