Merle Marie McMorrow v Todarello Pty Limited trading as the Fruit House Faulconbridge
[2014] NSWDC 75
•28 April 2014
District Court
New South Wales
Medium Neutral Citation: Merle Marie McMorrow v Todarello Pty Limited trading as The Fruit House Faulconbridge [2014] NSWDC 75 Hearing dates: 18-21 February 2014, 24 April 2014 Decision date: 28 April 2014 Before: Knox SC DCJ Decision: (1)Judgment for the Plaintiff.
(2)The Defendant to pay the Plaintiff the sum of $140,945.10
(3)Costs reserved.
(4)Liberty to bring in short minutes as to costs within seven days or to restore for argument as to costs before 9 May 2014.
Catchwords: CIVIL LAW - judgment - duty of care - negligence - economic loss Legislation Cited: Civil Liability Act 2002 (NSW) Cases Cited: Australian Safeways Store Pty Ltd v Zaluzna [1987] HCA 7
Hackshaw v Shaw [1984] HCA 84
Ryde City Council v Smith [2003] NSWCA 57
Angel v Hawkesbury City Council [2008] Aust Torts Reports 81-955; NSWCA 130
CG Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136
Purkess v Crittenden (1965) 114 CLR 164
Ridolfi v Hammond [2012] NSWCA 3
Malec v JC Hutton Pty Ltd (No 2) [1990] HCA 20; 169 CLR 638
Watts v Rake (1960) 108 CLR 158 per Dixon CJ at 159
Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320
Mason v Demasi [2009] NSWCA 227
Southgate v Waterford (1990) 21 NSWLR 427
Coleman v Barrat [2004] NSWCA 27
Council v Macpherson [2011] NSWCA 422
Reece v Reece (1994) 19 MVR 103
Husher v Husher (1999) 197 CLR 138
Szittner v Harriott [1967] 1 NSWLR 233
Cochrane v Hannaford [1999] NSWCA 371
Selby v The Commonwealth (1946) 47 SR (NSW) 150
Mann v Ellbourn (1973) 8 SASR 298
Ahmedi v Ahmedi (1991) 23 NSWLR 288
Gillan v Brannan [1991] Aust Tort Reports 69,294 (¶81-136);
Brear v James Hardie & Coy Pty Ltd (2000) 50 NSWLR 388
Penrith City Council v Parkes [2004] NSWCA 201Category: Principal judgment Parties: Merle Marie McMorrow
Todarello Pty Limited trading as The Fruit House FalconbridgeRepresentation: Mr S E McCarthy - plaintiff
Mr M J Gollan - defendant
AC Lawyers - plaintiff
HWL Ebsworth - defendant
File Number(s): 2012/394753
Judgment
Background
Mrs McMorrow is aged 50. She is married with three children aged approximately 11, 13 and 15 years. She was born and grew up in Coonamble and completed her schooling there to the end of year ten.
Mrs McMorrow married in 1994 and continued working with computers in the hospitality industry until the birth of her first child in 1998. At that time she undertook home duties and over the intervening years started working part-time in her husband's real estate agency and increasing her responsibilities. She began working more or less full time in the business from about mid-2008 when their youngest child went to school.
Pleadings and court chronology
The accident occurred on 24 December 2009. The plaintiff's Statement of Claim was filed on 20 December 2012 together with a statement of particulars. The Defence was filed on 4 July 2013.
The case was set down for a two day hearing on 5 September 2013. That estimate was clearly inadequate, which is relevant to the application for an adjournment made during the hearing. The proceedings were set down for a further day of hearing to take evidence from Mr Todarello and hear final submissions on 24 April 2014. In the intervening period, counsel for both parties have submitted written submissions.
Facts
On 24 December 2009 Mrs McMorrow and her family were travelling from Sydney to Coonamble to visit her mother for Christmas. She undertook to purchase the fruit and vegetables for the family over the Christmas period. She stopped at the defendant's Faulconbridge fruit shop, which she had been to before - although with no particular frequency or familiarity.
Mrs McMorrow went into The Fruit House with her husband and children. They went through the passageways collecting fruit and vegetables. Mr McMorrow was pushing a store-provided trolley, in which the collected fruit and vegetables were placed.
One item was a four kilogram bag of potatoes. At the counter, Mrs McMorrow was informed that, because she had spent a particular amount of money, she could claim a special offer entitling her to a free bag of potatoes. She purchased the fruit and vegetables with a credit card linked to a joint account of her and Mr McMorrow. Mr McMorrow pushed the trolley out of the store and went and claimed the free potatoes, with Mrs McMorrow and the children following him.
After attempting to load the purchased items into their (full) family car, Mrs McMorrow decided to return the purchased bag of potatoes because of lack of space in the car. She re-entered the front door of the fruit market to return and get a refund on the sack of potatoes.
Layout of premises: route followed by Mrs McMorrow
After returning to the store and claiming the refund, Mrs McMorrow went to leave the store. Her recollection was that the area she walked through was clear. Her route out of the store involved going past a bread stand adjacent to a pallet near the exit. There were sacks of potatoes on about half of the surface area of the pallet.
Photographs (exhibit 3A) were tendered, including those of The Fruit House, pallets and a bread stand. These photos were taken by Mrs McMorrow in February 2010, about one to two months after the accident. Mrs McMorrow's recollections of where she was in relation to the other items on the photos were also marked - exhibit 3B.
Photo 4 of exhibit 3A showed a bread stand in a similar position to where it was positioned at the time of the accident. The items depicted in the photographs were very similar, if not identical, to the way they were at the time of the incident. However, the colour of the pallets in the photos in the exhibits produced by both sides was not identical to the various hues of colours of the particular pallet on which Mrs McMorrow actually tripped. Mrs McMorrow said that pallet on which she tripped was an old pallet which had no particular colour - other than that of grey weathered timber. She said it was very similar in colour to the concrete floor.
The photo demonstrates approximate distances between the bread stand, the adjacent pallet supporting the sacks or plastic bags full of potatoes and the counter of the fruit market.
The doors she used for her entry and exit to the store were marked (exhibit 3B: photo 2). The passageway she used was also marked (exhibit 3B: photo 4).
The bread stand was inside the shop on the right hand side of the door. The stand was about six feet high. The stand was on an angle on a path from the cashier's counter.
The defendant also tendered a photograph of the entrance to The Fruit House (exhibit 10) which was taken a few weeks prior to the hearing.
Fall
After she had passed the bread stand display, which oriented her towards the exit of the store, Mrs McMorrow took a step, then tripped on a pallet and fell on her mouth onto the grey concrete floor. She did not see the pallet at the floor level at any stage before tripping.
She skidded as part of the process of falling near a pole at the area of the pallet. She tried to stop herself falling across the empty section of the pallet but could not.
Pallet
After falling Mrs McMorrow saw the pallet on which she tripped. The pallet was adjacent to a bread stand. The bread stand was inside the store. She said that the pallet was protruding into the doorway passage area of the exit to the store. The portion of the pallet protruding (the front half) had nothing on it. Sacks of potatoes were placed on the other portion of the pallet. Mrs McMorrow tripped on the empty portion - "a good half" of the pallet was exposed below the piled potato sacks. That part of the pallet was not observable from where Mrs McMorrow was. It was about 60cm ahead of the balance of the pallet.
Mrs McMorrow had previously been aware of that pallet on her earlier walk through that section of the store. At that stage she had been following her husband who had stopped and collected potatoes from that pallet. Immediately prior to the fall, she said she was watching where she was going and being careful where she walked.
Immediately afterwards a number of people came to her assistance. She then went to a chemist shop, the directions to which she had been given by another shopper, Mrs Toft (see below). An attempt was made to contact a hospital. That was unsuccessful. She then rang her dentist, Dr Cannon, before she returned to Sydney.
Injuries
Mrs McMorrow essentially fell flat on her face. The fall broke her left front tooth and pushed her right front tooth in. She was bleeding. Her teeth were recessed. She couldn't close her mouth. It was very painful.
Photos were tendered of Mrs McMorrow's face and mouth (exhibit 4). They were taken immediately after the incident on 24 December 2009.
The photos were consistent with Mrs McMorrow's evidence as to what she experienced from, and after, the fall on the defendant's premises.
Prior to the accident, Mrs McMorrow had no problems with her teeth or jaw and was happy with her appearance, including her teeth. She said she was confident and had a good social outlook and general interaction with people.
Treatment
After the incident, Mrs McMorrow had a number of treatments including having a cap placed on her teeth, in one case after anaesthetic was used. She experienced considerable plain - particularly eating and drinking and after exposure to temperature changes from food and liquid. She still experiences this discomfort. The photos tendered also show bruising and swelling on her face. That continued for some weeks.
Mrs McMorrow was very distressed about the pain and subsequent treatment, along with her changed appearance. She underwent root canal work and permanent fillings. Two of her teeth ultimately died and another was broken (exhibit 6). She has been wearing permanent braces since 2011. The braces are to be removed in February 2014. The braces were necessary to prevent movement of the teeth and consequent pain. A photograph of the current presentation of her mouth and teeth was tendered (exhibit 7). She was, and is, self-conscious and unhappy about her appearance and, as a result, has limited her socialisation. She stressed she lacked confidence in going out and meeting people in a social context.
Mrs McMorrow's mouth and teeth remained very painful and she experienced ongoing discomfort, including when eating and brushing her teeth. Her pain levels did not abate for a period of 18 months at least after the accident. Mrs McMorrow described her situation as ongoing "trauma teeth". She saw Dr Bomba, a peridontist, (report ex 2, dated 21 January 2011) about the pain she was experiencing. She has difficulty biting anything with any significant density, such as an apple, or with any extreme temperature, such as an ice cream. The injuries affect her in normal activities on a daily basis. It also has caused difficulties in talking to people in a public, social or work context. Despite those difficulties, Mrs McMorrow agreed that she has resumed all the work activities that she was completing prior to the accident (T 209).
Dr Andrew Howe
Dr Andrew Howe, consultant dentist, in his reports (dated 26 September 2012; 20 August 2013) was of the opinion that, while Mrs McMorrow's dental injuries had not then stabilised, traumatic dental injuries are regarded as approaching stabilisation five years post-trauma. It will have been five years since Mrs McMorrow's accident in December 2014. Dr Howe also assessed Mrs McMorrow as having a zero percent permanent disability and no permanent change to her ability for speech or mastication. He also noted a series of factors which necessitate a guarded prognosis - for example, with implants and crowns requiring replacement as well as different retention rates. Those factors may mean further treatment. Dr Howe recommended that Mrs McMorrow see an occlusal specialist to assist in removing traumatic occlusal forces from her teeth.
Dr Howe also reported that Mrs McMorrow was distressed at some erroneous information she had been given by the defendant's dental expert, Dr Paul Nichols (see below), and Dr Nichol's view about what he considered to be inappropriate treatment. Dr Howe considered Dr Nichol's comments to be gratuitous and ill-considered.
Ongoing symptoms and future treatment for physical injuries
The ongoing physical symptoms of which Mrs McMorrow complained to the psychiatrist, Dr Klug, were:
(1) Pain over the upper front teeth;
(2) Recurrent severe right sided headaches;
(3) Symptoms associated with blurred vision; and
(4) Occasionally a right sided aching jaw.
The accident has also had a negative impact on her sexual relationship with her husband - it would appear that arises because of her pain and discomfort around her mouth and the negative impact on her confidence.
Mrs McMorrow will have to wear a top retainer plate and requires the removal of temporary fillings in the two dead teeth including associated and consequential teeth bleaching. That impending treatment has caused her anxiety because it has led to difficulties in speaking: effectively needing to learn to speak again. She anticipates her bottom teeth will be permanently wired, requiring a canal to be cut into the rear of her lower teeth to accommodate the wire.
Psychiatric/psychological injuries
Part of Mrs McMorrow's claim is for damages for ongoing anxiety as a result of the accident. Mrs McMorrow had had psychological problems following the birth of her third child. Her oldest child was then aged three and a half. She was subsequently diagnosed with post-natal depression and prescribed Zoloft in 2002, which made her feel better. She took it for two years after her child was born and had weaned herself off it before the accident.
Mrs McMorrow was prescribed Zoloft again in 2004. In 2005, in the context of the burden of caring for her ill father and the diagnosis of her mother with leukaemia, she recommenced taking Zoloft which she did until approximately 2006.
In 2007, Mrs McMorrow attended her general practitioner, Dr Valliappan. He outlined a mental health care plan to treat depression and anxiety (exhibit 15). She does not recall signing these care plans.
Mrs McMorrow had also had a fall in 2007 which led to a notation (30 January 2007) of "recurrence of depression and anxiety, constant stress as carer for 3 children...low back pain...onset after fall three weeks ago...anhedonia, tearfulness, irritability, guilt, not coping, insomnia c/w major depression." She was prescribed Zoloft again, although by March 2007 she reported that she was not using anti depressant medication as she felt better. It appears that Mrs McMorrow had taken Zoloft on and off prior to the accident -see below [41].
Mrs McMorrow agreed that she had suffered anxiety and panic attacks in the past, with the worst stress she experienced being around the stock market collapse of 2008 (T 273) and the consequential impact on her financial position and that of the small family business she and her husband operated. There is an entry in the medical notes (exhibit 15: 14 October 2008) that she "...has been depressed in the past and now denies depression although her business closed 2 months ago."
Mrs McMorrow had, in the years prior to the accident, accepted responsibility for the ongoing care of her mother during her chemotherapy treatment and later, her 95 year old father, who, for a period, lived with Mrs McMorrow and her family. Her father died some four months prior to the accident. Those arrangements led to on-going stress for her.
Psychiatric/emotional experiences after the accident
Mrs McMorrow described her psychological reaction to the incident, including daily (and nightly) experiencing flashbacks and dreaming about the accident. The impact on her has been much worse than the postnatal depression she experienced.
Mrs McMorrow had seen Dr. Valliappan from 2011 and a psychologist at the Maroubra Medical Centre, and another counsellor. She was distressed by both those experiences and has not continued seeing those practitioners. She has not utilised prescribed anti-depressant medication regularly, if at all - although she has received prescriptions of such medication. However Dr Nichols reported that Mrs McMorrow said that she had taken Zoloft (for anxiety) as at August 2013.
Notwithstanding the prescriptions recommended to her, Mrs McMorrow's preferred treatment was for a herbal anti-depressant supplement, which she considered to be a more natural approach. She has taken that herbal supplement for the past 13 months at a cost of approximately $18 per month. She says she has received some benefit from that.
Mrs McMorrow and her son also had a physical altercation apparently arising out of adolescent tensions which led to her seeking medical attention from Dr. Valliappan in July 2013. At that stage she also reported long standing depression and the desire to recommence taking Zoloft, although she has not done so.
Relevantly, Mrs McMorrow otherwise has a stable marriage and family life punctuated by normal concerns as a parent, for example with her son with whom there were some incidents of tension.
Preliminary issue: use of medical file; statements made to treating psychiatrist
Mrs McMorrow had been to see Dr Champion of Idamenio Medical Practice. A file of those medical notes was produced on subpoena.
The defendant sought to rely on those notes to establish what Mrs McMorrow said to treating doctors, her observations and opinions. The defendant submits that Mrs McMorrow did not give details of those injuries or what she had said to her treating doctors about her depressed condition to the psychiatrist relied on by the plaintiff, namely, Dr Klug. Accordingly, the defendant submits that the factual bases on which Dr Klug gave his opinions was wrong and, consequently, his prognosis was fallacious.
The defendant submits that the report of Dr Klug should not be admitted. Dr Klug was not required for cross-examination.
Mrs McMorrow and her lawyers had seen and inspected that medical file. Notice was given on 31 January 2014 by way of service that the defendant intended to rely on the subpoenaed material.
In opposition to the tender, Mr McCarthy for the plaintiff, relied on rule 31.28 of the UCPR. He submitted that notice was given late and that there was no detailed or specific indication of what was being relied on by the defendant. He submitted that, had that indication been given, a supplementary report would have been obtained from Dr Klug.
The defendant had not sought nor obtained a countervailing expert as to psychiatric matters.
The report was admitted over opposition on the basis that what discrepancies there were between the history given to the treating doctors, and the opinions expressed, went to the weight to be given to the opinions rather than its admissibility.
I also ruled that extracts of the notes could be tendered (exhibits 13, 14 and 15) which related to what was said by Mrs McMorrow to her various treating doctors.
I permitted (also over opposition) Dr Klug to be called to give evidence, and the admitted extracts of those notes were given to him. He said that the contents of the medical notes would not have altered his opinions.
Dr Campion was not required for cross-examination. Matters relevant to the consideration he may have given are set out below (paragraph 62).
Report of Dr. Klug
Dr Klug said that apart from Mrs McMorrow's post-natal depressive episode from about 2002 to 2004 there have been no other depressive episodes. and that there is "no other psychiatric history" (report page 6). Mrs McMorrow's evidence was that that description was given in the context of there being no further instances of post-natal depression. Indeed Mrs McMorrow said that she has been depressed since that time in 2002-2004 and, upon her own self-diagnosis of depression, sought medical help for it. Further, Mrs McMorrow also said that she had experienced panic attacks in the past, contrary to the history outlined by Dr Klug. She also agreed that the limited history - being the two years she suffered post natal depression - she gave to Dr Klug was incorrect (T 273).
Dr Klug's report was to the effect that, at the time of his consultation a year ago (that is, in February 2013), Mrs McMorrow continued to suffer from various physical and psychological symptoms. From a psychiatric perspective, she continues to suffer from a depression of mood, anxiety about dental appointments, partial anhedonia, social withdrawal, self-consciousness about her teeth, hyper-vigilance regarding herself and her family, a preoccupation with the experience of the fall, diminished libido and irritability. Dr Klug recorded that "her symptoms had fully reduced years prior to her fall" (report, page 6). It appears to have been a mixture of both anxiety based and depressive symptomology.
Dr Klug considered that Mrs McMorrow suffered from a chronic non-specific anxiety disorder, falling short of post-traumatic stress disorder. Further, that she was in a state of partial remission from a prior chronic major depressive disorder. Mr Klug characterises this as a major mood disorder in the context of both the fall and her extensive physical problems and treatments. Dr Klug was of the view that her previous history of post-natal depression did not bear upon the consequences of her current state, which he said was wholly caused by the accident.
Dr Klug recommended that Mrs McMorrow attend a psychiatrist fortnightly for three months, monthly for another six months and on a two to three monthly basis for a further twelve months. It is recommended that that should be supplemented with a regime of anti-depressants and that Mrs McMorrow should also attend approximately twelve to eighteen cognitive behaviour therapy sessions.
In his oral evidence, Dr Klug said that having read exhibits 13, 14, and 15, his opinions in his report (exhibit 16) were unchanged. He had not had the opportunity to check the contents of the exhibits with Mrs McMorrow nor her ongoing use of Zoloft. He relied on the history he had been given, the references in exhibit 14 to her reports of Dr Campion to suicidal ideation, panic attacks and depression in about January 2007. Mrs McMorrow denied any suicidal ideation nor any suggestion of panic attacks.
It does not appear that Mrs McMorrow has complied with those recommendations other than in a very limited way by occasionally taking Zoloft. There is no objective indication of any disease of the mind.
Employment of other staff by McMorrow business: Alex George
After the accident, Mrs McMorrow had a lot of time off work and felt less effective while working. That appears to be primarily because of her inability to use the phone and talk with the public. That lack of confidence extended to limitations on her conduct in dealing with clients and open- house inspections.
Those difficulties led to Mr and Mrs McMorrow deciding in 2010 to employ someone else to take on Mrs McMorrow's role. A young man called Alex George was ultimately employed from June 2011 to March 2013. He was employed to replace Mrs McMorrow and to perform her duties as much as possible. His employment did not result from any changes to the income or expectations of the firm. For the whole of the period he was there, Mr George carried out the tasks previously undertaken by Mrs McMorrow including phone calls, attending open inspections and making buyer appointments. He did no additional work over and above that earlier performed by Mrs McMorrow - she continued to do the bookwork including the preparation of returns including BAS and tax returns and payroll tasks.
Mr George resigned from the employment on 9 March 2013, the day after the McMorrows thought he had copied their client database and deleted files off their computer.
After Alex George resigned, no one else was employed. Mrs McMorrow gradually increased the activities she undertook and improved her level of productivity. She had been working less effectively after the accident. She is now completing all the tasks she was undertaking prior to the accident although she continues to suffer pain.
A schedule of wages paid to Alex George was tendered (exhibit 5). The total of the amount paid was $111,969.71. The Plaintiff seeks 50% of the cost of those wages be included as a measure of the damages incurred by way of loss of earnings and profits of the partnership of Mr and Mrs McMorrow.
Company Structure
Mrs and Mrs McMorrow operate a company called S&M McMorrow Pty Limited. That company contracts to real estate agent agencies. S&M McMorrow invoice real estate agencies for a commission of a sale of a property. It is in effect an income splitting arrangement. The company currently conducts business with a real estate agent (called Goodyr) but also with other Sydney eastern suburbs agencies such as McGrath Partners, Di Jones, Ray White Double Bay and Raine & Horne Coogee/Randwick.
Mrs McMorrow performed most of the bookwork, paperwork, incomes tax and BAS returns for the real estate business she conducts, and conducted, with her husband. Those duties extended to house inspections or opening of houses, taking calls, marketing and correspondence and all paperwork associated with the business.
Bell Partners (the McMorrow's accountant) recommended the company open a family trust. This occurred and a company was established called S&M McMorrow Pty Limited as trustee for the McMorrow family trust. Another company operated as trustee of their Marvick super fund.
Prior to the establishment of the family trust, Mr and Mrs McMorrow were paid a wage by their company. A few months after the family trust was established, the McMorrows each began to draw a monthly distribution in lieu of a wage. This was, and is, Mrs McMorrow's form of income. The level of distribution is set. Currently that is of the order of $8,000 per month to Mr McMorrow and $5,000 per month to Mrs McMorrow. While there have been different amounts of distribution in the past, it does not waver to reflect varying work levels or changed personal circumstances. The McMorrow's can, and do, draw an additional distribution at any time if they require additional funds.
Mrs McMorrow obtained a certificate of registration as a real estate agent in January 2014. She could not obtain that registration any earlier because she lacked confidence after the accident. She obtained the certificate for a number of reasons including keeping the McMorrow name as part of all publicity for the agency and, for example, as the contact points within the family group.
Witnesses: Plaintiff
In addition to Mrs McMorrow, the following witnesses also gave evidence:
Stephen McMorrow
Mr McMorrow is married to Mrs McMorrow and has been a real estate agent since 1991. He said that after the birth of their third child, Mrs McMorrow became increasingly irritable and upset. He said that his wife had never been like that before. After taking Zoloft, she returned to normal.
In 2005 when Mrs McMorrow's mother had leukaemia, she became upset and there were difficulties in the personal care needed by her father.
There were further stresses in 2008 when the family lost money. Mrs McMorrow was stressed rather than depressed. She was her "normal bubbly self" other than those incidents. There was also a previous incident with her back in 2007 which caused problems.
In 2008 the McMorrows decided that Mrs McMorrow would work full time in their business. Their children were all full time at school and Mrs McMorrow wanted to work.
Mr McMorrow gave evidence on the impact on the family business of Mrs McMorrow's absences after the accident. Mr McMorrow would not have employed Mr George had Mrs McMorrow not been injured in the fall.
Mr McMorrow said that Mr George left the business in the context of his performance review. Mr McMorrow thought that Mr George had deleted company files and client records. This was confirmed to Mr McMorrow by the IT department. The material was returned. It was an unhappy situation. They have not employed other staff to replace Mr George.
Mr McMorrow said he always took about 30% more than Mrs McMorrow by way of distribution.
Mr McMorrow's recollection of the accident is that he heard a scream and returned from the car to the shop where he found Mrs McMorrow on the floor crying. There was blood around. She told him that she had tripped over the pallet. Mr McMorrow saw a nearby pallet which was old, not painted and grey in colour. He picked up some potatoes from the floor.
Counsel for the defendant submits that the evidence of Mr McMorrow ought to be treated with some caution so far as it corroborates Mrs McMorrow's evidence. This is so because of the evidence that Mr and Mrs McMorrow discussed Mrs McMorrow's evidence in cross-examination immediately prior to Mr McMorrow giving evidence. I found Mr McMorrow to be a truthful witness who gave independent evidence. I did not see any evidence of concoction nor collusion in their respective accounts - to the contrary there were some slight, but immaterial, differences in their accounts.
Mrs Toft
Mrs Toft was a witness to the events at The Fruit House on 24 December 2009. She is a special needs children's teacher at Penrith. She lives at Winmarlee. She has been a regular customer at The Fruit House at Faulconbridge. She was at the store with her two children (aged 11 and 8) on 24 December 2009.
Mrs Toft said that, on that day, there was a lot more produce on sale than usual compared to previous visits. The walkways were a lot narrower than normal or when she had been there before. Mrs Toft felt cramped. The aisles through which people walked around the shop were formed by the pallets.
Mrs Toft was walking near the front door when she tripped on a pallet which was protruding into the walkway area. She regained her balance by grabbing her trolley.
There are and were a number of different coloured pallets at the Fruit House. Mrs Toft saw the pallet that she had tripped over. It was a grey colour, the same as the floor. She was not expecting the pallet to be protruding. She had been to the shop frequently.
Mrs Toft's 11 year old son also tripped on the same pallet a very short time - some seconds - after she had fallen and before Mrs McMorrow fell.
In cross-examination, Mrs Toft said to her son that he needed to be careful and, as far as she could see, he was careful. She was also being careful while she was pushing her trolley.
Mrs Toft recalled that there was something on the pallet on which she tripped although she couldn't remember what it was or where the produce was.
Shortly after the fall, she noticed that another lady fell face down after tripping over the same pallet. That lady screamed - she was about 2 metres away. The lady was accompanied by a man. Mrs Toft now knows that lady to have been Mrs McMorrow.
Mrs McMorrow's face was hurt and bleeding at the mouth. She was really distressed.
Mrs Toft directed and accompanied Mrs McMorrow to a nearby chemist at Springwood.
Defendant's witnesses:
Mr Todarello
Mr Antonio Todarello was the proprietor and principal of The Fruit House at the relevant time in 2009 and remains working there. It is a family owned business. Mr Todarello is aged 65 and worked as the business supervisor every day, seven days a week. The day before Christmas was a very busy time of year. About 700 - 1000 people -"possibly more" - went through the business that day. The business had 13 or 14 staff.
Mr Todarello said that the practice of placing fruit and other vegetable produce in the store was to bring it up from the cool room in the early morning and place it on pallets. There were three cash registers, sometimes four, on busy days such as the Christmas Eve. The cash registers formed the egress point from the store close by the area where Mrs McMorrow tripped and fell.
The pallets came from the cool room and stayed where they were placed for the remainder of the day. They had to be moved by a forklift or pallet mover. Produce was topped up on the pallets from a trolley. The pallets were blue with a white "CHEP" marking or logo. There were some other plain pallets from other suppliers but the blue pallets were the kind on which the potatoes were stored. The pallets often remained in circulation for about 10 - 15 years in a variety of fields of endeavour. Exhibit 12 showed pallets stored on the business' property.
Mr Todarello thought that the relevant pallet in the immediate area where Mrs McMorrow tripped was about half full of potatoes. The adjacent bread stand was locked such that it couldn't move into the formed walkway. The potatoes were in 5 kilogram red plastic shrink-wrapped covers. About 160 bags of potatoes were placed on the pallets in layers from which customers helped themselves when they had bought a minimum quantity of produce.
Mr Todarello became aware of Mrs McMorrow's fall 10 or 15 minutes after it occurred when he was informed of it by a staff member. He said, when informed of it (and when the location of the fall was pointed out) that "there was nothing in the road. How could she trip?" Mrs McMorrow was no longer in the shop by the time he arrived.
Mr Todarello had no further notification of the accident for some years after the initial comments were made.
Ms Ellie Edwards
Ms Edwards was working on the checkout area at The Fruit House on 24 December 2009. She was then aged 17. Ms Edwards was walking between two checkouts inside the shop when she saw a lady fall down on the floor in an area of The Fruit House (marked on photo 4 of exhibit 3B). She didn't hear anything but went to assist the lady. There was a nearby pallet which had potatoes on it up to about 3 feet above the floor. The potatoes were in bags and not stacked in boxes. She did not know whether all the pallet was covered and didn't know what the lady had tripped on or over.
Defendant's submissions on credibility
The defendant attacked the credibility of Mrs McMorrow by reference to a number of matters including:
Her recollection of the colour of the particular pallet. I accept that Mrs McMorrow was giving her evidence as to colour to differentiate the colour of the particular pallet in comparison to the colours shown in the photographs.
The mechanics of Mrs McMorrow's fall - in particular where Mrs McMorrow ended up (exhibit 3B photo 6).
Mrs McMorrow's prior observation, and knowledge of, the pathway she followed.
That there are discrepancies between the history Mrs McMorrow gave to Dr Klug and those apparent in the histories which were given or recorded in exhibits 13, 14 and 15. The defendant submits that accordingly, Dr Klug's opinions are fallacious or, alternatively, that Mrs McMorrow's credit is impugned.
Findings on credit: Mrs McMorrow
I did not regard Mrs McMorrow's evidence as feigned, manipulated or exaggerated. The only exception to that finding is that I think that her concerns and claim in relation to her future psychiatric condition are not realistic nor based on the consequences of her accident.
Mrs McMorrow was genuinely distressed on various occasions when she spoke of the injuries, the effect of them and, particularly, of the impact of the accident on her working, family and personal life. She presented as a forthright and thoughtful individual who considered the questions asked of her and gave appropriate answers. Indeed, I thought that her growing confidence as she gave her evidence about details of her life and business, her areas of competence and the level of her (increasing) work activities indicated that she is likely to resume all aspects of her life, including her working life in the near future once her treatment is complete. Mrs McMorrow has not made any former claims on a third party.
However, one aspect of residual concern, in relation to what Mrs McMorrow suggests as being her ongoing psychiatric/psychological conditions, is that she does not appear to have complied with the recommendations of Dr Klug for her ongoing treatment (see below).
Dr Paul Nichols
The defendant relied on a report of Dr Paul Nichols of 2 August 2013 (exhibit 17). Dr Nichols had seen Mrs McMorrow on that day. The history he took was to the effect that Mrs McMorrow's teeth were normal and symptom free before the incident and that there was no previous dental trauma before the accident. He reported that there were no major inconsistencies between the documentation provided and Mrs McMorrow's testimony and her presentation at the clinical examination. He said that her condition had not stabilised and is deteriorating. Mrs McMorrow suffered ongoing pain from her upper front teeth and temporomandibular dysfunction as well as associated discomfort and inconvenient consequences. As an example, he described the "...bulky (and ugly) orthodontic ironmongery (as) making good oral hygiene very difficult". There was a permanent impairment of two of her teeth and an interference with mastication.
Dr Nichols was highly critical of the level of treatment of Mrs McMorrow by her treating dental professionals which he thought was neither appropriate nor timely. He thought that Mrs McMorrow had "...suffered long enough under her current team of dentists and now requires urgent assessment and management by specialist prosthodontists". Specifically, he considered that her treatment by Dr Bomba should not have commenced until all symptoms had resolved. He considered that she would have been better dealt with by removal of teeth and replacement of an implant. Dr Nichols predicted that after completion of appropriate treatment by a specialist prosthodontist, that Mrs McMorrow would return to her pre-incident dental condition and function.
Issues
The central issues are:
(1) The liability of the defendant, including any previous inspections of the hallway and the pallet by the defendant;
(2) Any contributory negligence of the plaintiff; and
(3) Damages, in particular, the extent, and assessment, of damages including:
(a) Psychological injury; and
(b) Economic loss.
Submissions on liability: Plaintiff
The plaintiff submits that there are five factual issues relevant to the issue of liability. Those are:
(1) Whether the plaintiff had seen the palett before she tripped on it, and, if not, whether she ought to have;
(2) Whether the plaintiff was taking sufficient care for her own safety;
(3) Whether the pallet was the colour or shade described by her in her evidence in chief or some other colour;
(4) The extent to which the pallet was covered with potatoes; and
(5) The point at which Mrs McMorrow "landed" or "ended up" after the accident.
The plaintiff submits that the liability of the defendant is established, based on a failure of the defendant to provide a safe place for customers to visit and shop, namely, that the pallet was protruding into the pedestrian walkway. It is also submitted that all factors listed under s 5B of the Civil Liability Act 2002 (NSW) (the Act) have been established in relation to liability and that all Mrs McMorrow's injuries were a direct consequence of her fall. The plaintiff submits that the five factors listed above can only go to issues of contributory negligence, which has not been established.
Specifically, the plaintiff submits that the positioning of the pallet, in particular the bottom corner of the relevant pallet, meant that the pallet amounted to a hidden trap which was unforeseeable, not an obvious risk and that there was no contributory negligence on Mrs McMorrow's part.
Defendant
The defendant disputes that liability is established, submitting that, if there was a defect or obstruction in the walkway, it was obvious and foreseeable. The defendant submits that s 5B, 5F, 5G and 5H of the Act have not been established. Accordingly, the accident happened as a result of the plaintiff's own negligence. Specifically, Mrs McMorrow could have been expected to look down to see what was protruding or in her way when rounding the corner after the bread stand and that in fact she did know that a pallet of potatoes confronted her around the bread stand. It would have been prudent for her to look down to see the edge of the pallet. Particular emphasis is made on the evidence that Mrs McMorrow did not look down but, if she did, she would have seen the pallet. The defendant submits that all the evidence here should be a finding of contributory negligence "well in excess of 50%".
The defendant argues that even if liability is established, the plaintiff's cognitive abilities were not impaired and there neither were, nor are, injuries warranting an award of damages under that heading. There was no impairment to Mrs McMorrow remaining in her job or position carrying out the duties she had previously performed. Further, that the business owned and operated by the plaintiff and her husband continued to prosper and that there is no basis for any claim for future economic loss.
The defendant also submits that Mrs McMorrow "will be returned to a position of relative normality" and that "while initially she undoubtedly suffered severe pain and shock, that has been arrested over the period whereby she has returned to a relatively normal and productive life."
The defendant's counsel also stresses that the medical/clinical notes make it clear that, whatever Mrs McMorrow's psychological or psychiatric condition is, that she does not regard it as interfering with her quality of life. Further, that she has only made two attempts to see a psychologist.
It is also submitted that attempting to value Mrs McMorrow's earnings from the real estate business and, accordingly, her loss of income, is not represented by a simple half share of the business. That is because the real value should reflect Mrs McMorrow's efforts in the business.
Law
Duty of care
The defendant's duty is to those coming onto premises to ensure safe walkways, including adequate egress and ingress unencumbered by inappropriate or encroaching items - Australian Safeways Store Pty Ltd v Zaluzna [1987] HCA 7. The duty extends to protect entrants from the risks of injury which could be foreseen and avoided - Hackshaw v Shaw [1984] HCA 84.
The relevant liability issues arising from the Act in this case include whether:
(1) The risk of Mrs McMorrow tripping on the pallet was foreseeable and not insignificant (s5B(1)(a) and (b));
(2) The defendant, in those circumstances, could or should have taken precautions to avoid risks of harm flowing from the placement of the pallet (s 5B(2)), including:
(3) The probability that the harm would occur if care were not taken;
(4) The likely seriousness of the harm;
(5) The burden of taking precautions to avoid the risk of harm; and
(6) The social utility of the activity that creates the risk of harm.
Any negligence was a necessary condition of the occurrence of the harm (s5D);
The risk of tripping on the pallet was obvious or inherent (ss 5F, 5G, 5I); and
Any negligence was on the part of Mrs McMorrow (s 5R).
There are a number of authorities with similar factual circumstances concerning the likelihood of the risk of harm (s5F). In Ryde City Council v Smith [2003] NSWCA 57 the plaintiff, walking straight and looking forward, tripped and fell on the raised edge of a drain at a shopping mall. The edge was protruding approximately 3cm after a council inspection. The trial judge had regard to the length, colour and uniformity of the grates and found it was a protrusion in the nature of a trap. While the plaintiff could have avoided the protrusion by walking a different way, it was not reasonable to expect pedestrians to traverse the drain that way. The Court of Appeal dismissed the appeal and was critical of the finding of contributory negligence.
In Angel v Hawkesbury City Council [2008] Aust Torts Reports 81-955; NSWCA 130 the plaintiff tripped on a 4-5 cm raised lip of a concrete footpath. The location was shadowed by adjoining trees and was quite dark. The Court of Appeal found that due to the deep shadow, the raised concrete ceased to be obvious. Beazley and Tobias JJA said at [66]:
"It is true that a pedestrian is required to take reasonable care for his or her own safety. But that does not require that a person must walk along a footpath with their eyes continuously glued to the area immediately in front of them. In our view, and as the appellant submitted, there was nothing unreasonable in the appellant's failing to notice a defect in the footpath of the nature of that in the present case when such a defect only became apparent when the appellant was within "a couple of feet" of it".
The Court of Appeal rejected the Council's argument that to avoid a finding of a risk being obvious, it must be obscured to the point of invisibility.
In CG Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136 at [173 -175], Bryson JA emphasised that the particular risk must be obvious and not a more generalised possibility of injury.
While those cases are informative, the reasonableness of the apprehension of a person in the circumstances and position of the plaintiff is a central consideration.
Liability in contract
The plaintiff also claims a breach of contract by the defendant. It is common ground in these circumstances that the bases for the causes of action are essentially indistinguishable once the cause of action in tort is established.
Findings: Premises and pallet
The accident occurred at a commercial set of premises where goods and produce were displayed on what is probably the busiest day of the trading year. The passage of shoppers and customers in those numbers flowing through that area was an integral and expected part of the defendant's business. The increased flow of customers at that time of year led to greater amounts of produce on display throughout the store compared to other times of the year. The particular pallet on which Mrs McMorrow tripped contained the gratuitous potato offerings, which could be expected to be the focal point for customers.
The store was crowded with as many as 700 to 1000 customers at varying times during the day making their way through the walkways particularly in the vicinity of the cash registers. The likely focus of attention of customers was on the produce - relevantly here the bags of potatoes - rather than on the floor. That was the special offer being made by the shop in the pre-Christmas rush. The narrowness of the walkway was not much more than that of a shopping trolley (see exhibit 3B photo 4). Mrs McMorrow and Mrs Toft (who said that she was being careful where she walked that day) both tripped over the same pallet in the same area.
On the evidence of Mrs McMorrow and Mrs Toft, I find that the walkways through which pedestrians and customers, such as Mrs McMorrow, were channelled through the premises, were formed in the particular area where the accident occurred by the pallets and the bread stand. The evidence of Mrs McMorrow was that the pallets in those photographs were in a reasonably similar position. Mr Todarello said the pallet was located exactly where it was as displayed in exhibit 3B photo 4. I find that the walkway through which Mrs McMorrow was guided to walk was obstructed by the intrusion of the pallet at floor level.
That narrowness of the aisles and the foreseeable impact on pedestrian traffic through the passages available to persons walking through The Fruit House is most likely to have occurred as a result of the increased display of produce - particularly in an area close to the counter and cash registers where the accident occurred.
The narrowness allowed for pedestrian passage but there was little room or opportunity to see any protrusion on the floor below. Mrs McMorrow did not see the pallet.
Height and positioning of pallet
Although there are no specific measurements of the relevant pallets, they would appear to be about 4" to 5" (15 cm) in height. The parties agreed with that measurement. It is also suggested by the relevant design standards.
There was no marking on them or the particular pallet to highlight it or, more importantly, the edge of it as it protruded into the walkway.
The pallet presented a hazard in its proximity to a high pedestrian and trolley area. Even if the pallet was painted blue given the totality of the circumstances - such as the light grey concrete floor which partially reflected the bluish hue from the pallets - does not mean that it was not an obstruction in the walkway. It was not suggested that the pallet was not protruding into the walkway. I find that Mrs McMorrow tripped on the pallet.
I do not accept that Mrs McMorrow reasonably could have been expected to either see or focus on the pallet in the circumstances of her passage through a crowded store - particularly around the exit area immediately after the counter from the check out area and in the vicinity of the entry/exit areas - and where, if anything, her attention was being directed by the placement of the store produce to the parameters above the base of the pallet.
The pallet was the cause of Mrs McMorrow's accident in that the base of the pallet was not clearly visible in that it protruded into the walkway on which she was walking - and was expected to walk.
Mrs McMorrow's physical injuries and her ongoing dental treatment were directly caused by her fall on 24 December 2009 on the defendant's premises.
Foreseeability
I find that the pallet was protruding in a position where it was not readily foreseeable to shoppers entering and leaving that area of the store. Shoppers could be expected to be focussing on areas on the shelves where the produce was set out to attract their attention. It was reasonable to expect that the areas beneath them would be free from encumbrances and protrusions.
I find that it was foreseeable that Mrs McMorrow would have tripped, as she did, had the pallet been positioned or left where it was. This finding is also substantiated by the fact that Mrs McMorrow tripped on her first step past the bread stand. Mrs McMorrow did not see the protrusion of the pallet to avoid it.
That risk was not insignificant.
Reasonableness of actions to be taken
The shop/business owner/manager was in the best position to determine the appropriateness of the pallet positioning - and that of the adjacent stand - and the width of the walkways.
Having taken into account the factors specified in s 5B(2) of the Act, I find that in the circumstances, it would have been reasonable for the defendant to arrange the pallets - and in particular, the pallet on which Mrs McMorrow tripped - so that customers did not trip and had the opportunity to avoid pallets positioned on the floor as they were. The risk could have been avoided by taking steps to change the positions of both the pallet and the bread stand or other items on the other side of the walkway which restricted its width. Alternatively, steps could have been taken to guarding or highlight the protruding edge of the pallet on which Mrs McMorrow tripped. There would have been little, if any, burden - financial or otherwise - on the defendant in taking such precautions.
No obvious or inherent risk
I find that the protrusion of the particular pallet was not an obvious risk to a reasonable person in the circumstances of Mrs McMorrow despite the fact that she had passed the pallet twice before. There was no warning of the protrusion. The risk of the pallet protruding, and being in her pathway - and the pathway she was expected to follow by the placement of the pallets - was not one of which Mrs McMorrow should have been aware pursuant to s 5G(1) of the Act.
To seek to extend Mrs McMorrow's generalised knowledge about the presence of pallets in the area of the walkway to a specific actual or presumed knowledge of the position of the pallet is not warranted on all the evidence - particularly that of Mrs McMorrow but also Mrs Toft.
I also find that the harm occasioned to Mrs McMorrow was not a result of an inherent risk pursuant to s 5I of the Act.
Accordingly, I find that the liability of the defendant has been established.
Contributory negligence
The defendant submits that Mrs McMorrow did not take any or sufficient care in walking in the relevant area of the premises, in particular, to observe, and then avoid, the pallet which she knew was there. The defendant submits that there was contributory negligence by Mrs McMorrow to a greater extent than 50%.
Mrs McMorrow had been in the vicinity of the pallet before but was accompanied by her children and was following her husband, who was pushing a trolley. I do not accept that it was reasonable to expect that she would have been watching the floor over which she had passed in great detail such as to be aware of a protruding pallet. Mrs McMorrow said that she was walking briskly which could be expected as she was getting back to the family car to continue to their travels. The fact that she was walking swiftly or even that she was in a hurry does not impact on this finding. She was watching where she was going in a way and to the extent which could reasonably have been expected and did not see, nor could she have been expected to see, the protrusion.
I do not find that there was any contributory negligence on the part of Mrs McMorrow.
Schedule of Damages
On the last day of the hearing the parties ultimately submitted the following figures as part of a schedule of damages.
Description of the Head of Damages
Plaintiff
Defendant
Non economic loss
$143,500.00 (31%)
$19,500.00 (20%)
Past out-of-pocket expenses
$18,960.25
$18,960.25
Future dental expenses
$71,500.00
$25,000.00
Future psychiatric expenses
$19,328.00
$nil
Past economic loss
$55,984.85
$nil
Future economic loss
$115,285.50
$nil
Future superannuation (11% of net)
$14,410.68
$14,410.68
Total
$438,969.28
$77,870.93
Findings: Psychiatric/psychological injuries and damages
The burden of proving on the balance of probabilities that the incapacity was caused by the accident always rests on the plaintiff: Purkess v Crittenden (1965) 114 CLR 164 at 168. Subject to that, where the plaintiff establishes a prima facie case that the incapacity has resulted from the injuries sustained in the accident, the defendant has the burden of adducing evidence to show that the incapacity would have come about independently of the accident, for example, by reason of a pre-existing degenerative condition: Purkess v Crittenden at 167-168; Ridolfi v Hammond [2012] NSWCA 3 at [86] - [87]; Malec v JC Hutton Pty Ltd (No 2) [1990] HCA 20; 169 CLR 638. Watts v Rake (1960) 108 CLR 158 per Dixon CJ at 159:
"If the disabilities of the plaintiff can be disentangled and one or more traced to causes in which the injuries he sustained through the accident play no part, it is the defendant who should be required to do the disentangling and to exclude the operation of the accident as a contributory cause. If it be the case that at some future date the plaintiff would in any event have reached his present pitiable state, the defendant should be called upon to prove that satisfactorily and moreover to show the period at the close of which it would have occurred."
I accept that, while Mrs McMorrow suffered from post-natal depression, her symptoms from that had disappeared in the years prior to the fall. However, I consider that, apart from her episode of post natal depression, she had been depressed before the accident - for example in 2005, 2006 and in 2007 when she was prescribed a mental health care plan (see exhibit 14).
Mrs McMorrow herself said she had been depressed for a long time. She did not want to take Zoloft previously - although she recently had her prescriptions filled - as she "...didn't want to go down that path again". She preferred to take a herbal remedy. This was not apparently the approach advised to her by her medical professionals. Mrs McMorrow said "I've been depressed since I had my accident but I don't want to take medication for my depression." (T 265).
Given the prior post-natal depression and other instances of psychiatric or psychological problems experienced by Mrs McMorrow, the issue of the impact of those matters is analogous to how a pre-existing condition is dealt with in the context of a later injury.
Absence of evidence from defendant on claim for psychiatric injuries
Dr Klug's evidence was that "her current state is wholly caused by her accident and its consequences". The defendant decided not to file psychiatric evidence on the basis that, firstly, Dr Klug's report was prepared a year ago and, secondly, that the factual basis of the reports was at odds with the contemporaneous reports Mrs McMorrow had made to other doctors, particularly Dr Champion.
The defendant's reliance on Dr Champion's clinical notes should be considered in light of what Basten JA said in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8] and Mason v Demasi [2009] NSWCA 227 at [2] that a trial judge is entitled to discount inconsistencies for a number of commonplace reasons. Those considerations are appropriate here, particularly given the time intervals and Mrs McMorrow's emotional condition and the various contact she had had with doctors and dentists in all the varied circumstances over the years.
Any history-based errors in Dr Klug's report seem to have been overcome by his oral evidence. Dr Klug's view that she should be under the care of a psychiatrist is predicated on his opinion that "from a psychiatric perspective, her long-term prognosis is fair rather than good or very good" (report page 7). Dr Klug's supplementary report of 8 February 2013 says that "her symptoms had fully reduced prior to her fall". Mr McCarthy submits on behalf of Mrs McMorrow that there was a total cessation of her symptoms prior to the accident in December 2009; further, that there was no evidence contrary to that of Dr Klug called by the Defendant.
Here the defendant decided not to file psychiatric evidence. However, I am required to consider the evidence as a whole, including the evidence of Mrs McMorrow and other contemporaneous documentary medical evidence (exhibits 13, 14 and 15) to determine how that evidence is related to that of Dr Klug.
Findings: psychiatric claim
I have had the opportunity to observe Mrs McMorrow when she gave her evidence. I have re-read the evidence of Dr Klug and the medical and other reports. Dr Klug's opinion (page 6 of report - exhibit 15) was that "she suffered from a chronic non-specific anxiety disorder along the spectrum towards a post-traumatic stress disorder". That is a very broad classification which is of limited assistance in coming to a finding on Mrs McMorrow's position.
A matter of considerable contest in the hearing was whether Mrs McMorrow's condition was either a result of the accident and, if so, whether any condition was ongoing to any compensable extent. In that regard, the defendant's counsel refers to the fact that Mrs McMorrow was being "counselled" as late as 12 August 2009 (exhibit 15 page 7) that is, a few months before the accident. She was also being prescribed Zoloft as at 18 August 2009. On the totality of the evidence, there is little real evidence of any attempt by her to obtain or pursue psychiatric or psychological treatment or counselling.
I find that Mrs McMorrow's emotional and psychiatric condition was such that she was vulnerable at the time of the accident by virtue of her father's death some four months previously, her mother's ongoing medical treatment, including chemotherapy, the demands associated with having a family with three young children and the demands associated with running a family business with her husband. This is outlined in the clinical notes reporting her various visits to doctors over the years and the various prescriptions of anti-depressant medication and referrals to psychologists, which were either not fully pursued or were steps (such as taking medication) which were not undertaken by Mrs McMorrow.
Absent any other evidence, I also accept that as at February 2013 the injury affected Mrs McMorrow's capacity to work partly due to her physical symptoms but also, to some degree, her lack of confidence in social and business settings and, to some extent, her associated emotional vulnerability by virtue of what she considered to be her appearance. There is a mix of factors at play which are difficult to disentangle on the evidence. While the defendant has not refuted the plaintiff's evidence on this point, I do not find that any adverse psychiatric or emotional condition on Mrs McMorrow's part - to the extent that there is any consequence of the accident which is likely to continue for longer than the period estimated for the completion of dental treatment, namely, until the end of 2014.
Doing the best I can with the available evidence and having regard to the normal or expected vicissitudes in life for a woman of those years and circumstances, an appropriate buffer would be 6 months of her net salary.
Non-economic loss
Damages for non-economic loss are to be determined in accordance with s 16 of the Act. No damages for non-economic loss are to be awarded unless the severity of the non-economic loss is at least 15% of a 'most extreme case' (see below).
The maximum amount to be awarded for non-economic loss is $551,500.00.
The plaintiff submits that Mrs McMorrow's injuries are no less than 31% of a most extreme case. The plaintiff assesses non-economic loss of $143,500.00.
Here the defendants submit that the plaintiff's injuries do not exceed 20% of a most extreme case. This would equate to $19,500.00.
Most extreme case
The question of the most extreme case is subjective. In Southgate v Waterford (1990) 21 NSWLR 427. In the matter of Doubleday v Kelly, the plaintiff at seven years old suffered a supra-condylar fracture of the right humerus with associated damage to the right medial nerve and right brachial artery by falling from a trampoline. This resulted in permanent loss of sensation in the thumb and two fingers, numbness, paraesthesia and weakness in her dominant hand. That disability meant the plaintiff had difficulty writing after about thirty minutes. The Court of Appeal held that the severity of the non-economic loss as a percentage of the most extreme case was 20%.
As permitted under s 17A of the Act, I take into account the decision of Coleman v Barrat [2004] NSWCA 27 [45]-[69] per Gzell J. In my view, the injuries and circumstances of Mrs McMorrow are slightly more serious than the overall situation pertaining to the plaintiff in that case. I also take into account those relevant factors specified in Clarence Valley Council v Macpherson [2011] NSWCA 422 per Tobias AJA at [82] which are analogous to this case. The plaintiff's age - here 50 - is also relevant: Reece v Reece (1994) 19 MVR 103.
There was significant delay between the accident occurring and surgery. The surgery was very painful. It took an hour and a half and included significant post surgery swelling.
Given the pain of the broken teeth, surgery and recovery, together with the ongoing weakness, pain, altered sensations, discomfort, and potential need for future operations to remove plates or to address the nerve damage, grief and embarrassment about her appearance, as well as any psychological or emotional upset surrounding those matters, I assess Mrs McMorrow's claim for non-economic loss at 25% of the most serious case, pursuant to s 16 of the CLA as an appropriate percentage reflecting the severity of the plaintiff's injuries and their impact on her life as a proportion of a most extreme case and the ongoing pain and suffering as well as inconvenience which will be caused by her ongoing treatment and the impact on the rest of her family and personal circumstances. That would result in an award of 6.5% of the maximum amount, namely, $36,000.00.
Past out-of-pocket expenses
The parties agree that the sum of past out-of-pocket expenses is $18,960.25. I award that sum under that heading.
Future out-of-pocket expenses: dental and other.
The plaintiff has claimed $71,500.00 for future dental expenses and all associated costs. The total sought is to cover measures such as endodontic treatment, costs such as those of an operation for plate removal and insertion of wires to the rear of her lower teeth crown or veneers treatment, replacement of anterior teeth, temporary dentures and jaw advancement surgery.
The defendant submits that the treatments suggested or canvassed in the reports of Drs Howe and Nichols have not occurred. There is no indication that the proposed Jaw Advancement Surgery (cost $11,850.00) will occur; further, that the proposed treatments should be to one or at most two teeth, not four teeth.
Buffer
The plaintiff's counsel submits that there should be a buffer awarded for future dental treatment of $50,000.00 based on the likely need for endodontic treatment, crown or veneer installation for up to four teeth and replacement of anterior teeth as well as other matters such as the need for jaw advancement surgery.
Mr Gollan for the Defendant submits that there is no evidence as to the cost of that surgery or the components of it nor whether it is likely to occur.
I assess the plaintiff's likely medication costs and the cost of matters such as the need for surgery for the affected teeth to cover endodontic treatment, crown or veneer treatments for the affected teeth and replacement of anterior teeth as $10,000.00.
Future out-of-pocket expenses: psychiatric
The plaintiff claims $19,328.00 for future psychiatric expenses.
The defendant submits that the Plaintiff's psychological and/or psychiatric complaints have resolved or are resolving as at when she saw Dr Klug. Further, that Mrs McMorrow has made no attempts to find a psychologist with whom she "clicked" with since her unsuccessful sessions with two psychologists prior to 2011. The defendant submits that no damages be awarded for psychiatric expenses.
Mr McCarthy submits that the fact that Mrs McMorrow may have been vulnerable to a deleterious psychological condition before the accident would not preclude a relevant causal link between the attack and her current condition which may encompass a vulnerable psyche. That in turn may require discounting of damages to take account of the possibility that the plaintiff would have suffered psychological deterioration independently of the tortious conduct at some future time and in any event: see Malec v JC Hutton Pty Ltd [1990] HCA 20 ; 169 CLR 638.
I find that on the evidence and in particular Mrs McMorrow's presentation and the absence of any consistent attempt to pursue any psychological or psychiatric counselling that the appropriate award should be modest. I award the sum of $5,000.00 in relation to analgesics for ongoing operative intervention and to alleviate associated pain and suffering as well as for future out-of-pocket expenses, and any psychological or psychiatric counselling and any other treatments.
Economic loss
The plaintiff claims for both past and future economic loss.
Past economic loss
Mr and Mrs McMorrow employed Mr Alex George from June 2011 to March 2013. I find that his employment in that period was a direct consequence of the accident and Mrs McMorrow's incapacity to work for that period.
The plaintiff tendered a schedule of wages paid to Alex George (exhibit 5). Those wages total $111,969.71. The plaintiff claims half that cost - $55,984.85.
Authorities: economic loss
In appropriate cases, the cost of replacing a plaintiff in a partnership may be the appropriate method of assessing damages. The aim in assessing damages is to put the injured party in the same position the plaintiff would have been in, but for the wrong presently being compensated for: Husher v Husher (1999) 197 CLR 138 ("Husher") at [6]. Here the evidence is that Mr George was reasonably employed to replace Mrs McMorrow and therefore the full cost of engaging him should be awarded to her - Szittner v Harriott [1967] 1 NSWLR 233. The amount recoverable is limited to the cost of employing others to do what tasks Mrs McMorrow had done previously. I accept and find that that is what Mr George was employed to do.
In Cochrane v Hannaford [1999] NSWCA 371, replacement labor was dealt with as a recognised head of damage. Here it seems the only relevant factor in the assessment of past economic loss is the cost of hiring Mr George. To the extent that taxation would have been paid for Mr George, the family company would have had to have paid that on Mrs McMorrow's behalf - see exhibit 18: Mrs McMorrow's tax returns.
Further, "the enquiry is about what could the plaintiff have done in the workforce but for the accident and what sum of money would the plaintiff have had at his or her disposal": Husher at [23]. Mrs McMorrow is entitled to recover the loss she sustained in reduced distributions from the company as long as the reduction is due to the incapacity caused by the injury - Selby v The Commonwealth (1946) 47 SR (NSW) 150. Here Mrs McMorrow's interests and those of the company are identical and nothing was put to the contrary in this respect.
Findings: business involvement
I find that Mrs McMorrow made an approximately equal contribution to the business once her children had gone to school in about 2008 and that that was the case at the time of the accident. That was particularly in the administrative, record keeping and tax return preparation tasks which freed up Mr McMorrow to do sales work - in which tasks he was assisted by Ms Curran for 9 months in 2011.
Mrs McMorrow's injuries had a significant impact on her ability to contribute to the business. That, in turn, led to the employment of Mr George. I find that the employment was an appropriate and reasonable response which was caused by the accident.
There is evidence that Mr George, then aged in his early twenties, assisted in introducing persons for what would result in sales. That was said to be for "about a handful of sales" - it would appear to have been between about 5 and 10 sales over a two year period where a variety of other parties had to receive a part of the commission payable. There is also some evidence that Mr George performed some other (relatively minor) tasks which Mrs McMorrow could not have done in terms of meeting with potential purchasers and discussing pricing matters with them.
Absent Mr George being called nor any other contrary evidence, I accept the tabulation of Mr George's earnings (exhibit 5) as an indication of the cost of employing a person in lieu of Mrs McMorrow for the relevant period. I award $55,984.85 for past economic loss.
Future economic loss
The plaintiff has claimed $115,285.50 for future economic loss. The defendant submits that the claim for future economic loss was not pleaded - even to the extent of pleading a diminution of earning capacity. An application for leave to amend the statement of particulars to include this claim as a particular was refused.
In the event that this matter is reviewed elsewhere, it is appropriate to set out the matters advanced. The plaintiff submitted that the claim was particularised in Part 15 particulars and that I should take into account the following factors which may lead to significant future losses including:
(1) A deterioration of her psychiatric condition;
(2) A decline in the profitability of the family business;
(3) A risk of the breakdown of her marriage to Mr McMorrow; and
(4) A deterioration of Mrs McMorrow's health.
S 13 of the Act provides that:
(1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury.
(2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury.
(3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.
An assessment needs to be made of the plaintiff's most likely future circumstances but for the injury. It is for the plaintiff to produce evidence of the real possibility that some capacity as yet unexploited would have emerged to be exploited in the future but for the accident: Mann v Ellbourn (1973) 8 SASR 298 at 306.
It is important for the plaintiff to lead accurate evidence about the range of employment and wages which would have been available but for the accident and the range of employment still available to the plaintiff. An important consideration is whether the plaintiff has pursued employment opportunities or imposed any unreasonable limitations upon the type of work accepted: Ahmedi v Ahmedi (1991) 23 NSWLR 288. Here, Mrs McMorrow said that she is completing all the tasks she did before the accident (T 209). Now that she has her real estate certificate it could be expected that her earning capacity will improve.
The approach should be that employment capacities will be used reasonably but not excessively. The assessment of damages, particularly for future earning capacity, is a pragmatic exercise. It can never be absolutely correct but it should aim at producing a realistic and fair result: Gillan v Brannan [1991] Aust Tort Reports 69,294 (¶81-136); Brear v James Hardie & Coy Pty Ltd (2000) 50 NSWLR 388.
The plaintiff has not demonstrated any loss of future earning capacity other than in the immediate period to undergo dental and related treatment. The factors outlined by the plaintiff do not demonstrate the most likely economic consequences that will probably flow from her accident as to include losses to her earning capacity through the business: Husher v Husher at [7].
For the purposes of s 13 of the Act, I find that the most likely assumption for the future is that:
(1) Mrs McMorrow would have continued to work as a real estate agent at the rate disclosed in her tax returns; and
(2) That, post-accident, she can continue to work without any diminution in her earning capacity save and except for the purposes of her attendance for dental work and associated periods of recuperation. It is not possible to be precise about this, the time involved and the income lost for her attendance on dentists and other specialists given the fluctuating nature of work in the real estate industry and therefore the income lost and associated losses such as superannuation. Therefore, the most appropriate way to deal with this is by way of a buffer.
Buffer
A lump sum award of a buffer as compensation for the chance that a claimant may be disadvantaged in the future where the injury is not precluded by s 13 of the CLA (Penrith City Council v Parkes [2004] NSWCA 201 at [58] - [60]) in relation to modest awards of this nature. This amount also takes into account the possibility that the events might have occurred but for the injury.
Mrs McMorrow's tax returns for the last 4 years were tendered. It is difficult to ascertain the precise income situation from the real estate business after deductions for the three rental properties which Mr and Mrs McMorrow owns. Doing the best I can from the evidence, I consider that an appropriate amount to be awarded as a buffer in respect of the future during the period of the foreshadowed dental treatment and the consequential interruption of her working and related activities for both treatment and recuperation should be $15,000.00.
Conclusion
Accordingly I award damages as follows:
Non economic loss
$36,000.00 (25%)
Past out-of-pocket expenses
$18,960.25
Future dental expenses
$10,000.00
Future psychiatric expenses
$5,000.00
Past economic loss
$55,984.85
Future economic loss
$15,000.00
Costs
The parties have not made submissions on costs. I will reserve the question of costs and give the parties leave to bring in short minutes of orders sought. Absent such submissions or a minute of orders sought within 10 days, that is by 8 May 2014, I would propose to order that the Defendant pay the costs of the Plaintiff on the usual basis.
Orders
(1) Judgment for the Plaintiff.
(2) The Defendant to pay the Plaintiff the sum of $140,945.10
(3) Costs reserved.
(4) Liberty to bring in short minutes as to costs within seven days or to restore for argument as to costs before 9 May 2014.
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Decision last updated: 01 July 2014
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