Murray v Baldock - [2001] WADC 294

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: MURRAY -v- BALDOCK & ORS [2001] WADC 294

CORAM: WILLIAMS DCJ

HEARD: 3-5 DECEMBER 2001

DELIVERED : 21 DECEMBER 2001

FILE NO/S: CIV 1823 of 2000

BETWEEN: SANDRA MURRAY
Plaintiff
AND
ROSS ASHLEY BALDOCK
DAVID ALAN BALDOCK
BLAIR ANDROS FARQUHAR
Defendants

Catchwords:

Torts - Negligence - Plaintiff attending restaurant for purpose of dining - Chair pulled out from behind - Plaintiff falling and injuring herself

Legislation:

Nil

Result:

Defendants liable to plaintiff in damages

Representation:

Counsel:

Plaintiff: Mr B G Bradley
Defendants: Mr D M McKenna

Solicitors:

Plaintiff: Bradford & Co
Defendants: Jackson McDonald

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

WILLIAMS DCJ:

Introduction

On 9 September 1998 the plaintiff was an invitee of the defendants who are the proprietors, owners and managers of the Jetty's Restaurant at Hillary's Boat Harbour, Hillarys in the State of Western Australia ("the restaurant"). The plaintiff was attending the restaurant for the purpose of dining.
The plaintiff alleges that whilst attempting to take her seat at the restaurant a servant or agent of the defendants pulled the plaintiff's chair away from her and she fell to the ground and thereby suffered pain and injury ("the accident"). The plaintiff alleges the accident occurred as a result of the negligence of the defendants, its servants or agents.

The evidence in liability

The plaintiff, who was born on 11 December 1970 and is aged 31 years was attending the restaurant with her husband Michael Murray and her two daughters Natasha, born 6 December 1994, and Alana, born 30 January 1998.
It is common ground that they arrived at about midday without a reservation. They called at the reception area and asked for a table for four and for a high chair for Alana.
According to the plaintiff they were asked for their surname and their residential suburb. It is common ground they were then escorted to the table by Ms Evans the duty manager.
According to the plaintiff she was carrying Alana and Natasha followed Michael. They were shown to a rectangular table set for four places, two chairs on one side opposite two chairs on the other side. When they arrived at the table the plaintiff stood at the top of the table and passed Alana to her husband. She then moved to a position between the two chairs on the right hand side of the table from where she had been standing. Initially she stated that she placed the baby bag on what she described as "the chair next down" but later said she had placed it on the floor behind that chair. She moved up to the other chair and pulled that chair out from the table with her left hand. She stepped in front of that chair and was facing the table. She then went to sit down. As she was attempting to sit she heard yelling. Before she knew it she was on the floor. She landed on her backside and then on to her back. She was sprawled out on the floor. Her husband and Ms Evans picked her up. She felt shaken and nauseous. She had a numbing sensation in the spine. Ms Evans went and obtained a drink for her. Ms Evans came back with a clip board. She completed a report about what happened and both Ms Evans and the plaintiff signed it after she had read it. It contained her name, address and telephone number and words to the effect that Ms Evans had pulled the chair away as she wanted to place the high chair there. A high chair was later obtained for them.
According to Mr Murray the plaintiff moved to a position between the two chairs. She put the baby bag down. She pulled the chair out from the table to sit down. She walked to the front of the chair to sit. Ms Evans pulled the chair out from behind her and the plaintiff fell on her bottom to the floor. He shouted out "what are you doing". The plaintiff rolled back on to her back. Ms Evans apologised profusely. She assisted the plaintiff to her chair. A high chair was later produced from the other side of the room.
According to the evidence of Ms Evans after showing the plaintiff to the table the plaintiff was standing between the two chairs. Ms Evans said that she would go and get a high chair. Ms Evans was standing behind the first chair and had just started to pull it out. The plaintiff fell down between the two chairs. She fell down without making any effort to stop her fall. Mr Murray yelled out "look what you have done to my wife". Ms Evans picked the plaintiff up and guided her to a chair. Ms Evans obtained the plaintiff's name and telephone number and filled out an incident report.
The incident report reads as follows:
"Incident: Took Mrs Murray to table and pulled a two (sic) chair out. I thought she had seen me as she asked for a hai (sic) chair.
Why and how it occurred: When (sic) to sit Mrs Murray and pulled out a chair to get a high chair as requested by Mrs Murray and Mrs Murray went to sit and fall (fell?) down."
It is signed by Ms Evans but not the plaintiff.
In essence the plaintiff's case is that the defendants are vicariously liable for their employee Ms Evans in that she pulled out a chair when the plaintiff was attempting to sit, and that was without due care.
The defendants case is that the plaintiff was standing between the two chairs. As Ms Evans was beginning to move the left chair the plaintiff sat down between the chairs in a place where there never was a chair.
It is the submission of counsel for the defendants that the evidence for the plaintiff should not be accepted in that she was an unreliable witness lacking in credibility who gave her evidence poorly and that her husband was a poor witness unable to provide detail. I accept that the plaintiff was an unreliable witness lacking in credibility and I will deal with that aspect later when dealing with damages.
Insofar as her husband is concerned I accept that his evidence differed from the plaintiff in a number of respects. However, in my view, they were minor matters at the periphery. However his evidence in relation to how the accident occurred was clear and straightforward and he was not shaken in cross examination. The husband's evidence was that Ms Evans withdrew the chair at the moment the plaintiff was attempting to sit. Ms Evans' evidence was to the effect that she intended to remove the chair to make way for the high chair. She moved the chair back a little. The evidence of Ms Evans that the plaintiff simply fell in midair at the same time that Ms Evans was removing the chair strikes me as an unlikely coincidence.
The incident report does not support Ms Evans' version of events. The words "Took Mrs Murray to table and pulled a two (sic) chair out, I thought she had seen me as she asked for a hai (sic) chair" give the impression that the actions of Ms Evans at the time were being observed by the plaintiff. However Ms Evans' evidence is to the effect that the plaintiff was looking out the window at the time. In any event the words import a connection between what Ms Evans was doing ie pulling out a chair and the plaintiff's accident. The words "When (sic) to sit Mrs Murray and pulled out a chair to get a high chair as requested by Mrs Murray, and Mrs Murray went to sit and fall (fell?) down" do not fit the description now given by Ms Evans. Her evidence was that the plaintiff sat down between the chairs in a place where there never was a chair.
Furthermore it was Ms Evans' evidence that following the plaintiff's fall her husband yelled out "look what you have done to my wife". That would seem to confirm that it was something Ms Evans had done which caused the plaintiff to fall.
It is my finding that the accident occurred in the manner described by the plaintiff and her husband. At the very moment that the plaintiff was attempting to sit on the chair it was pulled out from behind her and she fell to the ground. In my view that was done without due care for the plaintiff's safety. It was foreseeable that if Ms Evans removed the chair the plaintiff could fall and injure herself. That is what happened. In my view the defendants are vicariously liable for the actions of Ms Evans and liable to the plaintiff in damages.
In my view there is no contributory negligence on the part of the plaintiff. The chair was pulled out from behind her at the last moment and there was no opportunity for her to avoid what happened.

Assessment of damages

According to the plaintiff following her accident she had a headache and felt nauseous. She attended Dr Michael Lee a general practitioner on the day of her accident.
According to Dr Lee she presented with pain in her back and coccyx region. There was no radiation of pain into the legs and no other neurological symptoms. On examination she had difficulty walking due to the pain. She also had stiffness and decreased range of movement of her back. Her para vertebral muscles and coccyx region were very tender to palpate. Neurological examination was unremarkable. He diagnosed the plaintiff as having a soft tissue injury to her back.
According to the plaintiff in evidence she had pain in her left leg following the accident. That went within weeks of her accident and she then had pain in her right leg and hip. That was her first explanation. She then corrected that explanation to say that she had made a mistake and that at first the pain was in her right leg but that some three weeks following her accident the pain commenced in her left leg. The left leg pain has become worse. Her explanation was that she often mixed her left side with her right side, an explanation I find unlikely.
On 24 October 1998 the plaintiff was seen by Dr K Andrew Black a rheumatologist. When he examined her the lower limbs were satisfactory. There was no neurology. Extension of the lumbar spine produced pain but flexion was only mildly limited in movement. It was his impression that the pain was facetal and soft tissue.
The plaintiff continued to consult Dr Lee and was prescribed various medications including endone, panadine forte, voltaren and dothan.
On 19 April 1999 she was seen by Dr B Bairstow the Registrar to Mr P Bath at the Department of Orthopaedic Surgery at Fremantle Hospital. The plaintiff gave him a history of six months of mechanical back pain with both variable interior element and posterior element symptoms. There were no significant physical signs on examination. Radiological imaging demonstrated no significant abnormality.
On 26 February 2000 the plaintiff saw Mr Barrie S. Slinger an orthopaedic surgeon. He diagnosed a soft tissue injury to the lumbar spine.
On 23 April 2001 she saw Mr Cameron B Thrum an orthopaedic surgeon. He considered that her physical examination was such to suggest the possibility of abnormal illness behaviour, in particular altered sensation in the right leg where her complaints were in the left leg, the fact that she had pain over the immobile areas of the sacrum and the difference in McNab testing. He found it difficult to place a specific diagnosis on her symptoms but in view of the lack of extension and the history of what sounded like axial compression in the absence of particular abnormality, he considered that she may well have some mild facet joint pain.
The plaintiff was reviewed on 15 November 2001 by Dr Black. The best diagnosis that he could make was of soft tissue and facet joint problems.
The plaintiff was reviewed on 26 November 2001 by Mr Slinger. Again his diagnosis was of a soft tissue injury to the lumbar spine.
I found the plaintiff to be a most unsatisfactory witness, lacking in credibility and who gave her evidence poorly.
When asked about her medical history she stated that she had no back problems before her accident. Exhibit 7, being the medical records of her general practitioner indicates that she did.
She denied having any other serious medical condition. Again the records indicate that she suffered a severe anxiety condition and severe migraine headaches pre accident and that she had sought treatment in respect to those matters in the months before the accident.
Her work history was very unreliable, inconsistent and implausible.
The history that she gave to the various medical practitioners in relation to referred leg pain was totally unreliable. Initially she suggested that the doctors had incorrectly recorded the history. Later she said that she could not remember. Later still she said that it was possible that she had said those things to the doctors.
Initially in examination in chief the plaintiff stated that her left leg pain subsided in the first few weeks following her accident and thereafter she suffered pain in the right leg. She then gave a second version when she said that at first the pain was in her right leg and this subsided and didn't bother her and then the pain commenced in her left leg. The right leg pain returned but only for short periods. In recent months she had left leg pain but no right leg pain.
Dr Lee's report of 16 November 2001 indicated that she told him that there was no radiation of pain into the legs. His evidence was that if she had told him she had pain radiating into the legs he would have recorded it.
Mr Slinger's report of 31 July 2000 indicates that she told him that following the accident she had pain radiating along the left lower limb to the ankle although it improved after three weeks. At that time she reported having pain in the lower limb extending to the knee. Mr Slinger indicated that was a reference to the left knee. When she saw Mr Slinger on 28 November 2001 she had pain in the right lower limb extending to the knee but that the pain was most severe in the left lower limb.
When she saw Mr Thrum on 23 April 2001 she told him that she had pain radiating to the left leg as far a the knee which came on about a week after her accident. She made no mention of the right leg.
When she saw Dr Black on 24 October 1998 she told him that she was unable to recall the details of how she actually landed although in evidence before me she was able to give details. She stated that following the accident she developed pain in the left leg to the knee. She made no mention of her right leg. It was Dr Black's evidence that if she had mentioned it he would have recorded it.
When she saw Dr Black on 15 November 2001 she stated she had pain to the left leg to behind the knee and occasionally to the ankle. The right leg was involved in a similar but milder fashion.
In examination in chief she stated that in recent months she had left leg and lower back pain but there was no mention of right leg pain.
Exhibit 5 indicates that she has had a range of tests but none show any pathology.
In my view the medical evidence leads to the conclusion that the plaintiff has suffered a soft tissue injury to the lumbar spine.
Further, in my view the video surveillance film taken of the plaintiff further draws out the inconsistencies of the plaintiff's evidence, her histories to the medical practitioners and her descriptions of restrictions. The video was taken in February 2001. The plaintiff saw Mr Thrum on 19 April 2001 and he viewed the video on 23 April 2001. When the plaintiff saw Mr Thrum on 19 April 2001 she told him that she did not do any bending or extending at all. Mr Thrum was of the view that her movements on the video were inconsistent with the history that she had given him. The video shows the plaintiff bending into a motor vehicle. Mr Thrum's evidence was that this placed greater pressures upon the back than touching the toes. The video shows the plaintiff twisting her spine and squatting whilst cleaning a motor vehicle.
In my view the plaintiff was an unimpressive witness who lacked reliability and credibility and was selective in her memory.
Mr Slinger was of the opinion that the video surveillance film did not show any inconsistency with her history to him. Mr Thrum was of the view that the video surveillance film was conclusive evidence that the plaintiff had no major mechanical abnormality in the spine. Mr Black was of the opinion that the video surveillance film shows the plaintiff bending and stretching without obvious difficulty and that the video showed no obvious disability. I prefer the evidence of Mr Thrum and Dr Black to that of Mr Slinger.
The plaintiff claims damages for loss of amenities being pain and suffering and loss of enjoyment of life both past and future. It is my finding that the plaintiff fell and sustained a soft tissue injury to the lumbar spine. A lot of the plaintiff's complaints may well be related to her pre-existing chronic anxiety condition and her pre-existing headaches. Dr Lee was of the view that her soft tissue injury would gradually resolve and that her symptoms were better than they were originally. Mr Slinger was of the view that she would be left with a permanent disability. Mr Thrum was of the view that this type of injury usually resolves within two years of the injury. Dr Black did not think that after three years there was likely to be any change in her condition. In my view clearly she had recovered from her injury by the time of the video surveillance film in February 2001. For loss of amenities being pain and suffering and loss of enjoyment of life both past and future I allow the sum of $25,000.
The plaintiff claims damages for past loss of earning capacity. The plaintiff was unable to give a consistent history of her pre-accident employment. She attended Safety Bay Senior High School to Year 10. After leaving school she worked for 12 months for Woolworths in 1986 and then appears to have had a number of seasonal jobs to 1989. At that time she commenced working for her husband's father in a second hand shop between 1989 and 1993 but received no pay for that work. Her first child Natasha was born on 6 December 1994 and she then became a full time mother. Her second child Alana was born on 30 January 1998 and thereafter she looked for employment. In July 1998 she obtained a casual job at Woolworths as a night stacker. She would ring in at 4.00 pm of an evening to see if she was required and if so she would attend work that evening for as long as required. According to the plaintiff she was doing between 5 to 10 hours per week up until the time of her accident. The pay rate was $15 per hour. The amount of hours she worked varied each week and she enjoyed going to work. She enquired about doing more hours but was told that they were not available. She did not produce any documentary evidence in relation to her employment.
It was Dr Lee's evidence that he had been seeing the plaintiff regularly before her accident for anxiety and depression. She was presenting every two to three months. He was unable to say whether that condition prevented her from holding down a full time job. Mr Slinger did not consider that she was fit for any form of employment, in particular unfit to return to her pre-accident employment as a night filler either on a full or part time basis. Dr Black was of the view that the video surveillance film did not confirm that the plaintiff was fit for full time employment. He believed she was fit for part time work of a light nature. Mr Thrum was of the view that the plaintiff had a capacity to return to work. He could not see any reason which she would not be able to return to work as a shelf filler.
In my view the plaintiff had no apparent restriction on the video. I prefer the evidence of Mr Thrum and Dr Black to that of Mr Slinger on this issue. In my view the statements made by the plaintiff to Mr Slinger were different to the video. Mr Slinger conceded that he did not expect a worsening of her condition. The plaintiff's evidence on her employment history was very unsatisfactory and she did not produce any documentation in respect to any employment at any time.

In my view if I allow the plaintiff loss of earnings over a period of two years from the time of her accident for 7½ hours per week at a rate of $15.00 per hour she would be adequately compensated.
I allow past loss of earning capacity as follows:
15 x 7½ x 104 = $11,700.00
I allow interest at a rate of 4 per cent on past loss of earnings capacity as follows:
11,700 x 4/100 x 3.3 = $1,544.00
I allow interest on past loss of earning capacity in the sum of $1,544.00.
The plaintiff claims future loss of earning capacity. In my view there is no evidence that the plaintiff has suffered a future loss of earning capacity and I do not allow any sum under this heading.
The plaintiff claims future medical and pharmaceutical expenses.
The plaintiff was initially prescribed endone by Dr Lee. She remained on that to 14 August 2000 when Dr Lee switched her to M. S. Cartin because he was concerned about the amount of endone being taken.
Both of these are narcotic drugs. He planned to withdraw her from that within the next couple of months. If that was not possible that would indicate that she was addicted to the drugs. Mr Thrum was of the view that it was inappropriate that she be on narcotics. Dr Black would not use narcotics in this situation. Counsel for the plaintiff accepted that any sum should be modest. No evidence of cost was led at trial. In my view if I allow the sum of $500.00 for future medical and pharmaceutical expenses then the plaintiff will be adequately compensated. I allow the sum of $500.00
The agreement between counsel for the plaintiff and counsel for the defendants was that if I found ongoing problems then special damages were agreed at $3,000. If I found a lesser period then it was to be pro rata as a proportion of the three years. In my view the plaintiff's problems had largely resolved after a period of two years. I therefore propose to allow the plaintiff two thirds of the $3,000.00 or $2,000.00.
No claim was made by the plaintiff in the schedule of economic loss dated 5 December 2001 for gratuitous services and counsel did not address on the issue and I presume it has been abandoned. In any event there was simply no evidence to support such a claim. The medical evidence did not support such a claim either. Dr Lee could see no reason why she could not perform her household chores and Mr Thrum did not consider that there was any need for assistance for normal domestic chores. I accept that evidence.
In my view there has been no overlapping between the various heads of damages and I allow damages as follows:
Loss of amenities  $25,000.00
Past loss of earning capacity   $11,700.00
Interest on past loss of earning capacity     $ 1,544.00
Future medical and pharmaceutical
Expenses  $     500.00
Special Damages   $ 2,000.00
$40,744.00
The plaintiff is entitled to judgment against the defendants in the sum of $40,744.00.