Muggleton v Coles Myer Ltd

[2007] NSWDC 250

CITATION:	MUGGLETON v COLES MYER LTD [2007] NSWDC 250
HEARING DATE(S):	7-8 November 2007
EX TEMPORE JUDGMENT DATE:	9 November 2007
JURISDICTION:	Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	Stood over to 13.11.07 for making of final orders.
CATCHWORDS:	Slip and fall in defendant's supermarket
LEGISLATION CITED:	Civil Liability Act 2002
PARTIES:	Dianne Melissa MUGGLETON v COLES MYER LIMITED
FILE NUMBER(S):	Wagga Wagga 2/06
COUNSEL:	Plaintiff - R J M Foord Defendant - M W K L Robinson
SOLICITORS:	Plaintiff - Denniston & Day Defendant - McCulloch & Buggy

JUDGMENT

1 Dianne Melissa Muggleton, now Hardy, fell at a supermarket operated by Coles Myer Ltd in Orange on 13 March 2004.

2 The evidence established that she slipped forward on a grape which was on the floor of the supermarket. As she slid forward, she extended her right arm behind her taking the weight of the fall on that arm.

3 She claims injury and ongoing disability in her right arm, wrist and shoulder.

4 The issues were:

1 whether there was negligence by Coles in allowing the grape to remain on the floor

2 whether there was contributory negligence by the plaintiff

3 whether the injury was sufficiently serious to warrant an award for non-economic loss

4 the compensation, if any, to be awarded under the heads of out of pocket expenses, income loss and domestic care.

Issue 1 - Negligence

5 The evidence of the plaintiff and her husband was that after the fall they noticed a squashed grape and a wet skid mark. They stated that they saw another grape in the vicinity of the plaintiff’s fall. They both stated that at the time of her fall a person in a Coles’ uniform was restocking meat shelves nearby.

6 Exhibit H is a sketch prepared by the plaintiff showing the relative positions of herself, her husband, her mother, the Coles’ employee and another customer.

7 The only challenge to this diagram related to the question of whether the plaintiff was pushing the shopping trolley at the time of her fall. The plaintiff insisted, contrary to her interests, that she was not. Rather, she said she was some distance behind her husband and her mother because she had diverted from their course for other reasons and was walking towards them when she fell.

8 Against this evidence it was submitted for Coles that it was not negligent because it had in place a system of accident prevention which was reasonable in the circumstances.

9 Mr Michael Jeffrey, administration manager of Coles’ Orange store at the time of the plaintiff’s accident, gave evidence of the system in place. He said new staff, whether they were permanent or casual, undertook six to eight hours of induction before commencing work.

10 The induction process included a safety component in the course of which new staff were shown a twelve minute video on accident prevention. This included a requirement that they remain alert to spills or obstructions in aisles and to the need to take action to prevent injury to customers or staff from spills or obstructions.

11 Staff were also provided with a manual which set out instructions concerning the need to keep the store clean and tidy. It was said that this was also directed at accident prevention, but having read the document which is attached to Mr Day’s affidavit, it does not appear to address accident prevention.

12 It is noted that the instructions appear on page 194 of that manual.

13 Mr Jeffrey said the supermarket was cleaned once every twenty-four hours at about 5am on each day. He said he walked around the supermarket at hourly intervals and that the store manager was on the shop floor at all times.

14 In addition, at least six other staff members were on the shop floor.

15 This is the system that was said to be reasonable. I accept that this may be so if the system was fully implemented. However, the evidence indicated that it was not.

16 Coles produced, in response to a subpoena, a number of accident reports. Amongst them were two relating to slips on grapes by customers on 18 and 30 January 2004. It will be noted that the last of these accidents was six weeks prior to the plaintiff’s fall.

17 Mr Jeffrey said it was known that grapes fell on the floor because the bags were opened while customers ate them. There was no evidence that any extra surveillance of this area was undertaken. There was no evidence of any specific instructions to staff to be extra alert to the presence of grapes. To the contrary, the evidence was that a staff member, in close proximity to the point where the plaintiff fell, had failed to note grapes on the floor. The only explanation for this was that it was possibly difficult to see them from the vantage point of the staff member. I will say more about this when dealing with contributory negligence.

18 I find that the system adopted by Coles had not been properly or adequately implemented.

19 In dealing with these findings under s 5B of the Civil Liability Act 2002, I find that in the light of its knowledge of the propensity for customers to drop grapes, it was clearly foreseeable that there was a risk that persons would slip on the hard surfaced floors of the supermarket. I find that a reasonable person in Coles’ position would reasonably take preventative action to avoid the risk of injury to its staff and customers.

20 The remedial measure, it appears to me, would be simple, namely to ensure that staff implemented the system that it had developed.

21 Coles did not do this and it was therefore in breach of its duty of care to the plaintiff.

Issue 2 - Contributory Negligence

22 It was argued that, had the plaintiff looked down to the floor as she walked through the supermarket, she would have avoided the incident and the consequent injury.

23 The plaintiff agreed that she had not looked at the floor. She agreed that she could have seen the grape had she done so. She said she was looking directly ahead.

24 She did not seek to claim that the view was obscured as she rounded the display stand indicated on exhibit H. This was an explanation that would have been well open to her. This speaks well of her credit.

25 There was an inconsistency in the defendant’s position in that it relied upon the lack of visibility of the grapes to the staff member charged with the specific obligation of checking floors for spills whilst arguing the ready visibility of those grapes to a customer shopping in a store who did not expect to encounter items on the floor.

26 In the circumstances and given that the onus of establishing contributory negligence falls upon Coles, it is my view that the claim of contributory negligence has not been made out.

Issue 3 - Severity of the injury

27 At the time of the fall the plaintiff was twenty-six years old. She is now thirty. She is right hand dominant.

28 The plaintiff’s evidence was of immediate pain and tingling in the fingers of her right hand. After a week, the pain continued and she consulted her general practitioner. X-rays were undertaken as were nerve conduction studies and ultrasound examination.

29 The plaintiff was referred to Dr Mamo, an orthopaedic specialist.

30 The tingling and numbness in the fingers have resolved. The plaintiff, however, continues to complain of pain in her right arm and shoulder. She demonstrated to the court a visible lump in the inner aspect of her right wrist and a lump which was not visible but which was able to be felt by touch in her upper right arm.

31 She complains of weakness in the right arm and difficulties lifting. She has problems driving a manual motor vehicle, particularly in holding the steering wheel with her right hand. This situation has been relieved by the recent purchase of an automatic vehicle. She has increased swelling in her right wrist.

32 In March 2007, her first child was born. She complains that this has placed an extra strain on her right arm. She has difficulties writing.

33 The severity of the injury was challenged because of the evidence that the plaintiff had had little medical treatment. Aside from consulting her general practitioner and Dr Mamo and some massage, which the plaintiff said she discontinued because it caused her pain, there has been no treatment.

34 The plaintiff explained this by stating that she had been told by her general practitioner that no further treatment would assist her.

35 Investigations have shown no abnormalities. The lump on the wrist is not a ganglion and it is not explained by the medical evidence.

36 As far as treatment is concerned, the plaintiff is supported by the medical evidence including that of Dr Faithful, reporting on behalf of the defendant, to the extent that currently no further treatment would assist.

37 Dr Burgess suggested that an MRI of the shoulder should be undertaken to ascertain whether surgery would assist her. This has not been done to date. The plaintiff said she will do this when, from her rural address in Grenfell, she can organise an appointment.

38 She said she will proceed with surgery if it is found to be appropriate and if offers her a reasonable prospect of improvement of her condition.

39 Dr Faithful examined the plaintiff in July 2006 and September 2007.

40 His diagnosis in 2006 was of soft tissue injury from which the plaintiff should recover with no permanent residual disabilities and with no treatment necessary.

41 In September 2007, he noted that the plaintiff’s right arm had been improving until the birth of her child following which she had suffered aggravation of her pain and further weakness in the arm. He attributed this worsening of her condition to the birth of the child. This overlooked the fact that she would have no problem in caring for her child had she not been injured at the Coles Supermarket.

42 For this reason, I prefer the opinions of Dr Voss and Dr Burgess. Dr Voss, in February 2006, diagnosed a rotator cuff lesion of the right shoulder which he said was entrenched and chronic and which, potentially, could lead to surgery. He also raised the suggestion of a ganglion in the wrist which was subsequently not made out on ultrasound.

43 Dr Burgess, in July 2007, noted wasting of the muscles of the right shoulder girdle. He diagnosed post-traumatic painful dysfunction of the right shoulder and right wrist. He said the plaintiff’s symptoms and signs were typical of subacromial bursitis and bicep tendonitis and he recommended the MRI examination.

44 He said the shoulder dysfunction was real enough and she faced a possible need for arthroscopic management, so that her prognosis was guarded.

45 He said she had increased susceptibility to further injury in her shoulder and an increased rate of wear and tear.

46 Conservative management, he said, would be to avoid the stressors that aggravate the shoulder and he suggested perhaps local anaesthetic or cortisone injections.

47 He suggested that needle aspiration of the lump on the wrist might give a diagnosis and he recommended that the plaintiff return to an orthopaedic specialist for further assessment.

48 Ultimately, Dr Burgess stated the true details of the plaintiff’s condition were yet to be decided.

49 Dr Voss provided a costing for the potential surgery.

50 The result is that I find that the plaintiff suffered an injury which, at first blush, appeared to be relatively minor but which has not resolved.

51 I acknowledge that Dr Burgess suggested that further investigation was required before treatment options could be determined but the diagnosis was stated in terms which were clear and similar to those of Dr Voss.

52 I have already noted my positive view of the plaintiff’s credit. She did not appear to overstate her difficulties and I reject the suggestion that she exaggerated her symptoms.

53 I accept therefore that she has suffered a significant injury which is susceptible to aggravation when extra demands are placed upon it.

54 I have assessed her non-economic loss at twenty five per cent of a worst case, awarding her $28,500.

55 Past economic loss is allowed in the agreed sum of $785.

56 As far as future income loss is concerned, the evidence was that the plaintiff worked part time prior to her injury and that she worked full time after the injury, although, on the evidence, with some difficulty, particularly in lifting boxes and with handwriting.

57 She stated her intention was to have one more child and to return to full time paid employment when that child commenced school.

58 I accept that this is the most likely future circumstance for the plaintiff but for her injury.

59 She said she does not consider that she could work full time. She stated that she could work for three days a week only.

60 I agree that there was a prospect of a reduced earning capacity but I believe that there are a number of occupations available to her, notwithstanding her right arm difficulties.

61 She has asked for a lump sum based on a loss of two days work a week or $100, deferred for seven years, with a standard fifteen per cent discount for contingencies.

62 I am prepared to allow her, on balance, one day’s loss of work per week and I have assessed her economic loss in a lump sum of $25,000.

63 Out of pocket expenses are claimed in the sum of $5,000 to provide for the possibility of surgery in the future. In my view, that is an outside possibility and I have therefore allowed the sum of $2,500.

64 As far as domestic assistance is concerned, the assistance required following the incident does not qualify the plaintiff for recovery of voluntary assistance provided in the past.

65 Her husband’s evidence is that although he works long hours, he provides substantial voluntary assistance for the household now comprising their young baby.

66 His evidence of the time which he spends assisting his wife was supported by the views of the professional experts, Dr Voss and Ms White.

67 A claim for future paid assistance of two hours a week was resisted not on the basis that it was not required but because none has been procured to date. This is scarcely surprising in a single income family with an infant child.

68 The claim based on averaging two hours of paid care over the plaintiff’s life, in my view, is reasonable, and it is allowed in the sum of $55,346.

69 I have allowed past out of pocket expenses in the agreed sum of $2,958.95, noting the credit claimed by the defendant.

70 The sum of those figures is $115,089.95. Taking account of the credit claimed by the defendant of $2,142, there will be a verdict in judgment for the plaintiff in the sum of $112,947.95.

71 I will stand this matter over to 10 o’clock on Tuesday 13 November to deal with the question of costs, the question of a stay and for the making of final orders. So I am not entering any verdict today.

72 The copy of the offer of compromise will be marked exhibit R.

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