Polwarth v Woolworths Ltd

[2017] QDC 133

DISTRICT COURT OF QUEENSLAND

CITATION:

Polwarth v Woolworths Ltd [2017] QDC 133

PARTIES:

RAYMOND THOMAS JOHN POLWARTH

(Plaintiff)

v

WOOLWORTHS LTD

(Defendant)

FILE NO/S:

4055 of 2015

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

19 May 2017

DELIVERED AT:

Brisbane

HEARING DATE:

13 – 15 February 2017

JUDGE:

Searles DCJ

ORDER:

1.   The Defendant pay the Plaintiff $11,111.62 in damages.

CATCHWORDS:

PERSONAL INJURY – ASSESSMENT OF DAMAGES – where the Plaintiff suffered personal injury in a slip and fall accident – where the Plaintiff’s injury aggravated the pre-existing condition – whether the Plaintiff is entitled to damages for gratuitous care and assistance

PERSONAL INJURY – ASSESSMENT OF DAMAGES – where the Plaintiff suffered personal injury in a slip and fall accident – where the Plaintiff’s injury aggravated the pre-existing condition – assessment of damages

COUNSEL:

J Sorbello for the Plaintiff

R Morton for the Defendant

SOLICITORS:

Morton & Morton Solicitors for the Plaintiff

HBA Legal for the Defendant

Claim

Preliminary Issue

The Defendant’s Evidential Burden of Proof

Past and Future Gratuitous Care and Assistance

Prior to the Incident

After the Incident

Surveillance Evidence

Threshold under section 59(1) of the Civil Liability Act 2003 (Qld)

The evidence of the Plaintiff as to the need for gratuitous care

Evidence of Ms Stephens as to the gratuitous care actually provided

Evidence of Ms Aitken

Evidence of Dr Ganko

Conclusion regarding section 59 of the Civil Liability Act 2003 (Qld)

General Damages

Special Damages

Summary

Claim

1. By Claim and Statement of Claim filed 16 October 2015 (‘Claim’), the Plaintiff claims damages for personal injuries and other loss caused by the negligence and/or breach of common law duty by the Defendant, and resulting from a slip and fall incident at the Defendant’s premises at Pialba, Hervey Bay on 20 February 2014 (‘Incident’). The Plaintiff alleges that while shopping, he slipped and fell after stepping on a grape on the floor. As a result he alleges that he a soft tissue injury to his right knee (‘the Injury’).[1]

   [1]Plaintiff’s Statement of Claim filed 16 October 2015, paragraph 6.

1. At the time of the Incident, the Plaintiff was 51 years old. Relevantly, when he was around 20 years of age, he was involved in a motor cycle accident resulting in serious injuries including the amputation of his right leg approximately six inches[2] below the knee, a fractured leg above his amputation, a fractured pelvis and a lower back injury. He has been in receipt of Disability Support Pension since 1990.[3]

   [2]T1.16.39.

   [3]Occupational Therapy Report of Ms Vanessa Aitken dated 9 October 2015, page 5.

1. At the time of the Incident on 20 February 2014, the Plaintiff was wearing a prosthetic limb under his right knee. He alleges his left foot slid forward causing him to fall directly onto his right knee ‘stump’ with his prosthetic leg bent underneath him.[4] Liability is admitted by the Defendant and contributory negligence is not pursued.[5] No claim is made by…