Rhodin v Coles Supermarkets Australia Pty Ltd
[2019] ACTSC 207
•13 August 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Rhodin v Coles Supermarkets Australia Pty Ltd |
Citation: | [2019] ACTSC 207 |
Hearing Dates: | 4, 5, 6, 10 August 2018 |
ReasonsDate: | 13 August 2019 |
Before: | Collier J |
Decision: | See [355]-[359] |
Catchwords: | TORTS – NEGLIGENCE – Workplace injury – Fall on ice – Injury to left wrist – Employer’s liability – Standard of care – Extent to which regulations inform duty of care – Breach of duty – Causation – Maintaining a safe system of work – Reasonably foreseeable risk of injury to employee when ice on the floor – whether employee guilty of contributory negligence – held employee was not contributory negligent TORTS – NEGLIGENCE – Workers’ compensation – Incapacity – Admission of incapacity – whether implied from continued compensation DAMAGES – Personal injury – General Damages – Non-economic loss – Loss of earning capacity – Future economic loss – Past out-of-pocket medical expenses – Future medical expenses – Past domestic care and assistance – Past gratuitous care – Future care and assistance – interest COSTS – whether costs should follow the event |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) s 42, 45, 46, 99,100 Civil Liability Act 2001 (NSW) Court Procedures Rules 2006 (ACT) r 1705(1), 417 |
Cases Cited: | Ansett Australia Ltd v Taylor [2006] VSCA 171 Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171; 59 ALJR 215 Zora Tomic v Limro Pty Limited and Australian Capital Territory Health Authority (1993) 47 FCR 414 |
Texts Cited: | Cross on Evidence, 11th Aust. ed. (J.D. Heydon, 2017) Luntz, Assessment of Damages for Personal Injury and Death, 3rd ed. (1990) |
Parties: | Susan Rhodin (Plaintiff) Coles Supermarkets Australia Pty Ltd (Defendant) |
Representation: | Counsel Mr McIlwain SC with Mr Muller (Plaintiff) Mr Bridge SC with Mr Grace (Defendant) |
| Solicitors Maliganis Edwards Johnson (Plaintiff) Hall & Wilcox Lawyers (Defendant) | |
File Number: | SC 39 of 2017 |
COLLIER J:
Before the Court is a claim for damages by the plaintiff, Ms Rhodin, in respect of personal injury and consequent loss and disadvantage. The relevant injury to Ms Rhodin’s left arm is alleged to have been sustained while working as an employee for the defendant, Coles Supermarkets Australia Pty Ltd (Coles). Ms Rhodin’s claim is in tort, for negligence, and is pursuant to the common law and the statutory modifications and restatements in the Civil Law (Wrongs) Act 2002 (ACT) (the Wrongs Act).
Although in the amended statement of claim (ASOC) lodged on 13 April 2017 Ms Rhodin claimed breach of statutory duty by the defendant, namely breach of the Work Health and Safety Regulations 2011 (ACT) (Regulations), at the hearing Counsel for Ms Rhodin conceded that the Regulations did not give rise to a statutory cause of action, and that Ms Rhodin did not rely on a breach of statutory duty. To that extent I understand that Ms Rhodin does not press paragraph 4 of the ASOC. Rather, Counsel for the plaintiff submitted that the regulations by their very nature and purpose informed the common law as to what is “reasonable”. Counsel for the defendant submitted that the case was a common law case based on ordinary particulars of negligence with the statute not having any particular relevance.
The defendant denies liability for negligence.
BACKGROUND
The factual background to this matter is largely agreed between the parties.
Ms Rhodin was born on 5 April 1966, meaning she is presently 53 years of age.
From December 1988 until June 1990, Ms Rhodin lived with Mr Michael Hunter, with whom she had a son, born on 8 June 1990. At or around this time, Ms Rhodin separated from Mr Hunter.
Ms Rhodin married Mr Russell Taylor on 15 January 1994 and they had a daughter, born on 31 May 1994. In or around February 2003, Ms Rhodin, Mr Taylor and their daughter moved to Parkes in New South Wales. Ms Rhodin and Mr Taylor separated in or around April 2008.
In September 2009, Ms Rhodin moved to Canberra. On 20 October 2011, Ms Rhodin and Mr Taylor divorced.
On 31 August 2012, Ms Rhodin married Mr Andrew Ellam. In March 2014, their relationship broke down, and they separated permanently in May 2014. On 7 June 2014, Ms Rhodin moved back to Parkes to be with Mr Taylor.
Since 1996, Ms Rhodin has been employed in various roles including:
· casual bar staff at the Heathcote Hotel, Heathcote (1995-1996);
· telemarketer and commercial estimator for Grace Brothers Cleaning Services, Auburn (June 1996-March 2000);
· commercial division manager for Dimeo Commercial Cleaners, Waterloo (2000‑February 2001);
· building estimator for Kich Constructions Pty Ltd (February 2001-2002);
· team manager/ executive assistant at Masterton Home, Warwick Farm (2002-2003);
· voluntary secretary at St Vincent de Paul (February 2003); and
· senior asset manager/office manager for G Hunter & Co, Parkes (April 2003-September 2009).
From September 2009, Ms Rhodin was employed in the following real estate and property management roles:
· senior property manager at Heather Badenoch Real Estate, Belconnen (21 September 2009 to 16 December 2009);
· development manager/ property manager at LJ Hooker, Manuka (12 January 2010 to August 2011);
· senior property manager at Raine & Horne, Belconnen (7 September 2011 to May 2012);
· senior property manager at Ray White, Canberra (21 May 2012 to May 2013);
· senior property manager at Elders, Gughalin (May 2013 to 24 September 2013).
On 20 November 2013, Ms Rhodin commenced working at the Coles supermarket at Gungahlin (Coles Gungahlin). She worked as a shop assistant in the delicatessen, working 38 hours per week. Coles Gungahlin is open seven days a week from 6.00 am to midnight. Ms Rhodin would typically start her shift at 5.00 am and finish around 3.00 pm.
At or about 9.30 am on 2 June 2014, Ms Rhodin alleged that she slipped on ice at Coles Gungahlin.
On 7 June 2014, Ms Rhodin moved to Parkes and commenced working at the Coles supermarket in Parkes. She worked in the delicatessen there until November 2014.
Ms Rhodin’s employment with the defendant was terminated by letter of 9 February 2017. That letter provided materially as follows:
As discussed, Coles ('the Company’) considers that there is no reasonable prospect of you resuming your preinjury duties in the near future. In addition, there are no other suitable positions available for you, and for us to provide the facilities necessary to enable you to carry out your pre-ill ness/injury duties would, in the Company's view, constitute an unjustifiable hardship.
You will appreciate that we are not able to hold your position open indefinitely. I therefore regret to inform you that the Company has decided to terminate your employment. Accordingly, your employment will cease on 09 February 2017 and you will be provided with the required notice payment in accordance with the Coles Supermarkets and BiLo Retail Agreement 2011.
I wish you the best for the future and hope that in time you make a complete recovery. I would also like to take this opportunity of thanking you on behalf for the Company for your loyal service.
THE PLEADINGS
In the ASOC Ms Rhodin claimed at [2.8], that the injury, loss and damage sustained by her was caused by the negligence of the defendant. Relevant facts are particularised at [2] as follows:
2.3On Friday 30 May 2014, the Plaintiff had observed ice on the floor of the seafood cool room of the supermarket.
2.4She reported and pointed out the ice to Ms Fiona Hambley, the supermarket second in charge, and reported the ice on the floor to Ms Kathy Topic, the supermarket manager.
2.5The Plaintiff also wrote a report of the ice on the floor and its source in the communication book which is a book which recorded written communications between the employees of the Defendant and higher management.
2.6On Monday 2 June 2014, the Plaintiff, in the course of her duties, entered the seafood cool room at the supermarket and slipped on ice covering the floor thereof.
2.7As a result of the slip, the Plaintiff crashed into a metal trolley thereby, visiting upon her injury, loss and damage.
2.8The injury, loss and damage sustained by the Plaintiff was caused by the negligence and breach of statutory duty by the Defendant.
The precise particulars of the acts or omissions constituting negligence on the part of the defendant were alleged to be as follows:
3.1Failed to ensure that the melted ice did not escape onto the seafood cool room floor from the plastic fish tubs;
3.2Failed to ensure the floor in the seafood cool room was free from a slippery substance or substances by maintaining an adequate system of cleaning;
3.3Failed to warn the Plaintiff that the floor in the seafood cool room was not free of slippery substance or substances including, but not limited to, erecting a sign;
3.4Failed to prevent entry, by roping off the doorway or otherwise, into the seafood cool room whilst it was not free of slippery substance or substances;
3.5Failure to devise, institute, maintain, and enforce a safe system of work;
3.6Failure to implement any, or any adequate, system of hazard identification and management;
3.7Failing to take reasonably practicable steps to minimise the risk of injury;
3.8Exposing the Plaintiff to a risk of injury which the Defendant knew or ought to have known; and
3.9The Plaintiff also refers to and relies on the particulars of breach of statutory duty pleaded under paragraph 4 hereof.
At [5] of the ASOC the plaintiff itemises her injuries and disabilities.
In its defence lodged on 30 May 2017 the defendant did not admit paragraphs 2.3-2.7 of the ASOC, and pleaded further that, insofar as the plaintiff’s allegations of negligence relied on those paragraphs, those allegations had no reasonable prospects of success. This pleading was particularised at [5] of the defence as follows:
(a) The plaintiff has not particularised, either in her amended statement of claim or in the provision of further and better particulars, the manner in which she reported ice to the individuals mentioned in paragraph 2.4 of the statement of claim, including the words or the import of the words that she alleges she used.
(b) In relation to paragraph 2.5 of the amended statement of claim, the plaintiff has not particularised, either in her amended statement of claim or in the provision of further and better particulars, the date on which she wrote in the communications book, the location of the communications book when she wrote in it, or the words she recorded in the communications book.
(c) If the plaintiff was injured as alleged (which is not admitted) the plaintiff’s amended statement of claim does not disclose a connection between the ice referred to in paragraphs 2.3 to 2.5 of the amended statement of claim and the ice referred to in paragraph 2.6 of the amended statement of claim, upon which her allegations of negligence are based on.
The defendant denies the particulars of negligence in [3] of the ASOC.
The defendant does not admit [5] of the ASOC and the injuries and disabilities alleged therein, and does not admit that the plaintiff reasonably required treatment from the practitioners listed in [6] of the ASOC.
The defendant also does not admit [8] of the ASOC and the claims for economic loss therein, which the defendant claims are not compliant with r 417 of the Court Procedure Rules 2006 (ACT), or [10] of the ASOC and the claims for domestic assistance therein.
The defendant alternatively says that if the plaintiff was injured, then those injuries were caused or contributed to by her own negligence. The defendant particularises this pleading as follows at [17] of the defence:
(a) The plaintiff failed to report, or to properly report, the existence of ice on the floor of the cool room.
(b) The plaintiff failed to take any action to remove ice from the floor of the cool room despite it being within her capability and level of experience to do so.
(c) The plaintiff failed to take reasonable care for her own safety despite knowing that ice3 had recently been found on the floor of the cool room.
(d) The plaintiff failed to take proper precautions for her own safety despite knowing that ice had recently been found on the floor of the cool room.
RELEVANT EVIDENCE
Evidence of Ms Rhodin
Ms Rhodin gave oral evidence-in-chief, and was cross-examined by Counsel for Coles.
Evidence in relation to circumstances leading to injury
On Friday 30 May 2014, Ms Rhodin informed Ms Fiona Hambley, who was second-in-charge of the delicatessen section, and Ms Kathy Topic, who was second-in-charge of Coles Gungahlin, that there was ice of the floor of the seafood cool room.
Ms Rhodin and Ms Hambley went to the seafood cool room, opened the door and saw ice on the floor, which they touched. Ms Rhodin stated that Ms Hambley discussed the ice on the floor with Ms Topic, at which time they were outside of the seafood cool room with the door closed. Ms Rhodin stated that she wrote a note in the “communications book” including the time and date, the fact of the ice on the floor, that Ms Rhodin had spoken to Fiona Hambley and that there were two fish tubs on the floor that had plugs missing and were leaking. (I note that this communications book was not produced when called for by counsel for the Plaintiff).
There was no evidence from either Ms Hambley or Ms Topic disputing Ms Rhodin’s evidence in respect of these events. Ms Rhodin deposed that she expected that remedial action would be taken in respect of the ice.
Ms Rhodin returned to work in the delicatessen on the morning of Monday 2 June 2014. There was no signage on the floor to warn of the presence of ice and no barrier to prevent entry into the seafood cool room. Ms Rhodin states that she believed that the situation reported on the previous Friday had been remedied by appropriate action.
At approximately 9.30 am, a customer at the delicatessen ordered chicken fillets. As was explained by Ms Rhodin in evidence-in-chief, the chicken fillets were kept in the seafood cool room because the seafood cool room was the appropriate temperature. Ms Rhodin opened the door to the seafood cool room to go in and slipped on ice on the floor. Ms Rhodin put out her left arm to stabilise herself but her left forearm crashed into the metal frame of a trolley.
Ms Rhodin observed two fish tubs on the floor, which she stated were in the same position as they had been on the previous Friday. Ms Rhodin hypothesised/believed that the ice had formed as a result of water leaking from the fish tubs where the plugs were missing and had subsequently refrozen on the floor of the seafood cool room.
Ms Rhodin said that she spoke to Mr Thomas Kries and wrote up the incident in the communications book, noting the time and date that she had entered the seafood cool room and slipped on the ice. Mr Kries gave no evidence in this proceeding.
Ms Rhodin completed an ACT Workers Compensation Claim form in which she described the circumstances in which the accident and injury had occurred (Exhibit 1).
Workers Compensation Claim
In the Workers Compensation Claim form submitted by Ms Rhodin on 5 December 2014, she sets out the following details:
· The Injury Date was 2 June 2014 at approximately 9.30am.
· Ms Rhodin reported the injury both verbally and in the communication book to Ms Kathy Topic, the “Store 2IC”, on 2 June 2014.
· Ms Rhodin did not receive first aid treatment and did not stop work as a result of the injury.
· Her nominated treating doctor was Dr Qool.
· The nature of the injury or condition was “unknown at this stage waiting for CT Scan” but affected her “elbow, arm, wrist, left hand side”.
· Ms Rhodin had had no similar injuries or conditions previously.
· The Injury Circumstances were described as follows:
I became aware of the ice on the coolroom floor prior to my accident and entered the info into the communication book. It was a couple of days after that I went into the coolroom and slipped on the ice. I put my left arm out to try and grab a steel trolley and my arm went crashing into the trolley with my body weight. I [illegible] within days and attended my local hospital for an Xray. There is a visable [sic] difference in my wrist even though nothing showed on the Xray. The pain has increased over the last 6 months.
· The location the injury occurred was described as “Seafood Coolroom”
· Ms Rhodin nominated Thomas Kries as a person who was a witness or someone who was aware of the problem
Evidence in relation to injury and disability
In the days following the accident, Ms Rhodin said that she was concerned about the injury and that she had swelling and severe bruising on her left forearm down to her fingers.
During the hearing Ms Rhodin described the pain in her left arm as follows:
All right. Now over this period of time from the accident up to the end of October, can you just describe to her Honour what symptoms you were getting in your left forearm and right?---Yes, a constant sprain, feeling like the worst sprain in the wrist area that you’ve ever had, and then I get like a stabbing feeling, a sharp stabbing pain from my elbow down to my – down my limb, and occasionally I have this snapping pain like it is actually going to just break.
Now, you’re dealing with the period from the accident up until November 2014?---Yes, those – I was working. I had a wrist – bought myself a wrist brace to try and make it easier, but most often I was coming home in tears because I didn’t want to lose my job, but I was struggling to do it.
And were you working in the delicatessen section?---Yes.
And were you having any problems doing the duties required of you?---Yes.
Can you explain to her Honour what kind of duties you were having problems with, please?---Unloading the pallets of boxes and stacking those in the cool room.
That's the delicatessen cool room?---Correct. Loading the chicken oven with chickens, deep cleaning which is done on a Tuesday night, which means that you pull the deli apart, clean it all down and put it all back together. That was - general - anything weight bearing on my left side was a real problem.
(Transcript p 78.)
Ms Rhodin gave extensive evidence of her medical consultations (and medical practitioners) in respect of pain in her left arm, including a pain like a constant sprain immediately after the accident, subsequently from late 2014 a shooting pain from her elbow down her forearm into her hand, and a snapping pain on weight bearing or slight movement (or when she remains completely still). She deposed as to the treatment she has received, including x-rays, an MRI, physiotherapy exercises, a wrist brace, pain relief (including Lyrica, OxyContin, Endep and a TENS machine) and appointments with a psychologist. The defendant paid for her medical attention. Ms Rhodin gave evidence of depression and sleeplessness, and further gave evidence of the development of pain in her right shoulder sometime in 2016.
I will return to this evidence later in the judgment.
Care
Ms Rhodin gave evidence that her daughter Chelsea had helped her with domestic matters to the best of her ability while Mr Taylor was away, however Chelsea had two small children and Chelsea’s husband was a shift mine worker. Mr Taylor had assisted with domestic tasks since the accident including house cleaning, grooming the dogs, shopping and cooking. Ms Rhodin also stated that she had difficulty driving because of pain and difficulties with her arm. She gave evidence that she has purchased a large bed to enable her to stretch out her left arm at 90 degrees while sleeping, however the defendant had not paid for that bed.
Work
Ms Rhodin’s evidence was that, at the time of the hearing, she was unable to do any work at all for any period of time because of pain from her left arm.
During cross-examination Ms Rhodin gave evidence that although she had made visits to medical practitioners in the second half of 2014, after the accident, in which she had not mentioned her wrist pain, her failure to mention wrist problem to those practitioners was because she had been using Voltaren rub or gel and taking Voltaren tablets and waiting for her condition to settle. She deposed that by the end of November 2014 she “simply couldn’t work anymore” and purchased a skin-coloured brace to help her. Ms Rhodin deposed that she mentioned the pain in her wrist to people at work, in particular the bakery manager (“Julie”) and Ms Zoe Tassell at the Coles Supermarket at Parkes in July or August 2014, but not Ms Natalie Madsen who was her immediate supervisor but with whom she did not work on a daily basis.
Ms Rhodin gave evidence to the effect that she was unable to perform work in the delicatessen area of Coles, including lifting, because of her wrist pain. Insofar as concerned working in real estate, as she had previously done, Ms Rhodin said this was not possible:
There's no reason why you can't do that work now is there, physically?---Yes, there is.
Physically? What physically can't you do?---I physically have problems driving a motor vehicle. I physically have - I do have difficulty driving a motor vehicle. I physically try to do as little with my left forearm as possible to reduce the pain that I feel. I physically am exhausted by my lack of sleep which would not allow me to do that job competently as I used to.
Look, leave aside the driving of the motor vehicle part for the moment. What physical aspect of the actual things you did on the job as it were when you did that work before can't you do now?---Okay. So physically are you - just so I understand the question, are you referring to end of month? Is that physical?
I was asking you specifically about the aspects of the job as a property manager which involved you going and looking at properties and noting defects and doing things of that nature?---Could I possibly explain the role of a property manager? It's a lot more than that.
(Transcript p 164.)
Ms Rhodin continued:
MR BRIDGE: I want her to itemise what duties of a property manager she can't do now. There's nothing hard about that.
HER HONOUR: It would be helpful to me to understand what are the physical aspects of the job a property manager which you can't do now?---Okay. So driving a vehicle. There's a lot of driving involved. The inspections, there are several sorts of inspections. There are ingoing inspections which take on an average house up to three hours. That's before a tenant moves in. That's an ingoing inspection. That is done at the premises with a computer system, along with photos. Once that part of that inspection is done, all that goes back to the office. Then you have to download it on the computer, organise it and print it out. So that's an ingoing inspection. Routine inspections are - in Canberra they're ever quarter. You can have one - sorry, you can have a routine inspection ever quarter in ACT, so they involved similar - you take that equipment with you as well. Then there's the outgoing inspections which probably take the longest, so when a tenant leaves the property, same equipment, same photos and a long time at the property. You're often in a position where you can't just go and lie down and - you're at a house standing up for those hours while you're there doing that work before returning to the office, and using the computer to do that. So that's the inspection part of property management. The other part of property management is arrears management.
Is a - what?---Arrears management.
So rental arrears?---Yes, rental arrears. That's a daily - that's a daily activity. All of this requires extreme competence in speech and yourself, and the tribunal representations, so I would represent owners in tribunal. That is physical. You drive to tribunal. You're there for the day or however long it takes. I'm struggling to sit here now, so there's no way I could do tribunal. So I've got the rental arrears. I've got the tribunal. Evictions and depending on what State you're working in, you know, you might have to deal with the sheriff about those. It's a very, very, very varied job.
(Transcript p 165.)
Evidence of Mr Taylor
Mr Taylor gave oral evidence-in-chief. The defendant did not seek to cross-examine Mr Taylor. Mr Taylor is Ms Rhodin’s former husband and is currently her partner.
Mr Taylor gave evidence that at material times he was working as a vegetation officer, which required him to be away from Parkes from time to time.
In examination-in-chief, Mr Taylor was asked to describe Ms Rhodin prior to their separation in April 2008. Mr Taylor stated:
Okay. She was a very confident, outgoing person, yeah, always wanting to lend a hand. She was a fantastic mother and - and wife. Yeah, she's, as I said, willing to lend a hand, did a lot of charity work, like working for the soldiers on Anzac Day and things like that, did a fair amount of work with other charities as well, St Vincent de Paul, things like that. Sue and myself throughout the period of our time with the kids at school, we always did fetes at the school, raise money for the school and that, along with being involved with sports. So she was a very loving person and yeah - - -
(Transcript p 186.)
Mr Taylor described the various houses that the family has lived in (this is relevant to gratuitous care, commercial household cleaning expenses etc):
Prior to you separating you lived together. Did you live together in a house in Parkes?---Yes, we did.
Was it one house or more than one house?---More than one house.
But were each of those houses roughly the same sort?---Yeah, they all were roughly the same.
Can you just describe – take one of them and we’ll assume the rest are like that?---Okay.
What was the nature of the houses?---Okay. They were basically about a 800-square block of land, three bedroom, lounge room, dining room, bathroom. We usually had two toilets. We always had a verandah. So yeah, that’s – that’s the sort of house that we had. We always went for a bigger yard because we always liked our garden, so - - -
During the time that you were together, did you also live in Sydney?---Yes, we did.
What sort of accommodation did you live in in Sydney?---Well, basically the same. Everything was roughly the same. We always looked for the three bedroom place and the two toilets, bathroom, good size kitchen, dining room, lounge room.
What was the domestic arrangements in terms of home maintenance and internal home cleaning? How did that work?---Well, I guess I really – I never used to – because I was working quite a lot so – I always worked quite a lot and I never really did much inside the house. Washing dishes and things like that, yes, but Sue basically run the whole household and I did everything else. When – when I was home from work I did all the maintenance on the – on the lawns and yeah, that was sort of the arrangement we – we had and it worked really well and that’s the way it was.
(Transcript p 187.)
Mr Taylor gave evidence of a conversation he had with Ms Rhodin in which she told him that she had had an accident in which she injured her arm. Mr Taylor said that over the next few months he saw Ms Rhodin exhibit the following behaviour:
What did you see?---I seen her agitated and just not the same, you know. She was - she'd been to the radiologist and they told her that she hadn't broken her arm and we were both going, well, I think - they must - I think they said something to her about it might have been a fracture, something like that. And then it just seemed to get worse. It wasn't getting any better.
I know it's sometimes very difficult to describe things, but how do you - can I ask this question - how do you know - you said you thought she was in pain; what made you say that? What did you see?---Waking in the night, complaining all the time about it, not being able to do the things that she normally does, yes. All those sorts of things just seemed to line up.
(Transcript p 191.)
Mr Taylor gave evidence that he was required to “look after the internal housework” after Ms Rhodin returned to Parkes, which he had not previously had to do, and gave detailed evidence of domestic duties he performed (transcript p 192). He also explained that he expected to have surgery to correct a condition in one of his ankles which prevented him from returning to work, but that once he had had that surgery he anticipated returning to his work and that this would entail him being away for 10 day blocks.
In relation to Ms Rhodin’s condition Mr Taylor continued:
And have you noticed about any other problems that have arisen?---Yes, there's a lot of them.
Are you able to refer to some of those?---Okay, well, we'll start with her mood swings. She doesn't seem to deal with things the way she used to deal with them. She's not as level headed. She was very competent in everything she did and confident in everything that she did. She's very easily distracted now. She doesn't - she loses her temper really quickly for what I think is no reason, but that's how it is. Sex is pretty well gone out the door.
Do you mean non-existent?---Yes.
Have you noticed anything about her grinding her teeth?---Yes, she grinds her teeth all the time of a night. I hear it, it wakes me up it's that loud sometimes. But she's quite often woken up of a night and she's got a piece of tooth in her mouth or she says, "Here's another bit," you know. Her sleep is just terrible. It's - it affects both of us because she wakes, I wake. But she's awake all the time with pain in her arm. She'll be asleep, she's comfortable and I think what happens is she moves and something happens with her arm and she - it just wakes her up and full on, she wakes up sometimes screaming with the pain in her arm.
MR BRIDGE: Your Honour, obviously the witness can say when she wakes up. He cannot talk about what the cause is.
HER HONOUR: All right, thank you.
MR McILWAINE: Have you noticed anything about - has she made any complaints to you about her right shoulder?---Yes. Yes, well she - obviously - - -
No, forget what is obvious. Just tell us what you see?---She doesn't use her left arm so she's using her right arm all the time for everything. Sue doesn't give up, you know. She's got a strong heart, you know.
I'm just asking about her right shoulder?---So she uses her right shoulder for - her right arm for everything which naturally affects her right shoulder because it's obviously an imbalance because she's using that arm all the time.
Has she complained to you about her right shoulder?---Yes, she has.
What has she complained to you about?---Stiffness, soreness, muscle spasms, sore.
(Transcript pp 194-195.)
Evidence of Ms Natalie Madsen
In the latter part of 2014, Natalie Madsen was employed at the Coles supermarket in Parkes (Coles Parkes). Ms Madsen came to know Ms Rhodin after Ms Rhodin transferred from a store in the ACT to Parkes in NSW in approximately June 2014. At the time Ms Rhodin commenced working at Parkes, Ms Madsen was in Sydney training to be the manager of the delicatessen.
Ms Madsen described the tasks undertaken by Ms Rhodin as follows:
What did she do while she worked there at the deli?---She sliced meat from – on the slicer, wrapped and cooked chickens in our chicken oven, also filled ice in our ice section for the fish, as well as her customers.
Was there any lifting or carrying involved in the work that she did? --- Yes, there was.
If you could please tell her Honour what that involved?---What that involved was taking the fresh chicken crates out of the coolroom and to stuff them onto a cooking rack to be placed into the chicken oven, and also carrying the knobs of meat, as well as carrying crates or packets of chicken pieces to fill the delicatessen part.
Do you know either roughly or precisely how much the crates – sorry, I withdraw that. Did you carry the same crates yourself from time to time? ---Yes I did. I did all the time.
Can you tell her Honour roughly or precisely, if you can, what they would have weighed--- The – the whole chickens that were to be cooked, there was eight in a crate and approximately anywhere from five to 10 kilos.
HER HONOUR: Five to 10 kilos is the whole things?---The whole crate, including the crate.
(Transcript pp 242-243.)
Ms Madsen gave the following evidence in relation to her perception of Ms Rhodin’s ability to carry out the tasks in the delicatessen:
MR BRIDGE: Did Ms Rhodin, while she was there, perform normal duties in the sense were there any restriction or was there any allowance made - - -? ---No.
- - - for the types of things that she did?---No.
Did you observe anything about her which led you to the view that she had any physical restriction - - -?---No.
- - - in terms of her work – sorry, let me finish the question?---Sorry.
That’s all right. In terms of the way that she did her work?---No.
(Transcript p 243.)
Ms Madsen was also asked in cross-examination about Ms Rhodin’s use of a wrist brace during the period from July to November 2014 while working in the delicatessen:
… The period I’m talking about, just so you and I are on the same page, is from the time you came back from Sydney through to the time that Ms Rhodin left the deli?---Okay.
So we’ve got that period?---Yes.
That’s July through to the end of November, isn’t it?---That’s correct.
That’s the period we’re talking about. What I want to suggest to you is that during that period she wore on her left wrist a skin-coloured wrist guard or bracelet?---Not that I observed.
If it was skin-coloured you probably wouldn’t see it anyway, would you?---Yes, you would.
Would you?---Yes.
I suggest to you that she was wearing a skin-coloured wrist guard during the period from July through until November?---All right.
Do you agree that the people in the deli section from time to time worse full sleeves?---No.
You say never?---Not that I observed.
The uniform was a three-quarter sleeve, wasn’t it?---That is correct.
(Transcript pp 255-256.)
In re-examination, Counsel for the defendant had the following exchange with Ms Madsen in relation to the use of wrist guards:
Ms Madsen, do you have any familiarity with wrist guards?---Yes, I do.
In what context?---I myself have used them.
Do you have any training that involv3es first aid or matters of that nature?---Yes, I do.
In what way?---I’m a first aid officer with Coles Supermarket and also with the Rural Fire Services.
(Transcript p 256.)
Ms Madsen gave evidence that she had had a conversation with Ms Rhodin concerning the Christmas rosters in 2014, and that Ms Rhodin had said she could not work Christmas Eve because she had family coming to Parkes, but that Ms Madsen had said there was a “blackout” period at Coles before and after Christmas, meaning that no staff were allowed to take annual leave between the week before and the week after Christmas. Ms Madsen’s evidence continued:
MR BRIDGE: Yes, thank you, your Honour?---It wasn't until approximately two days later that I was advised that a group - a doctor's - a workers compensation certificate had been brought in and that she was unable to work.
After that did her duties change?---I was advised that she went on to light duties.
Did she keep working in the deli?---No.
Just one final matter, you observed her working presumably on a daily basis or several times a week when she was in the deli?---Yes.
Did you ever observe her wearing a brace - - -?---No.
- - - on her arm?---No.
(Transcript p 245.)
Evidence of Mr David Hughes
Mr Hughes gave evidence that he worked in the Parkes area in the real estate industry, and had a commercial rent roll. He deposed that he had met Ms Rhodin when she commenced working at Hunter Real Estate in Parkes in 2005, and had daily contact with her during the working week until she left Hunter Real Estate in 2009. Mr Hughes gave evidence that he considered Ms Rhodin a very confident and competent property manager, always happy and outgoing, who supervised other staff and interacted well with landlords.
ISSUES FOR DETERMINATION
There is no doubt that Ms Rhodin slipped in the cool room at Coles Gungahlin on 2 June 2014. From the submissions of the parties it is clear that the following issues require determination in this case:
1. To what extent did the acceptance by the defendant of a workers compensation claim in respect of the plaintiff’s injuries constitute an admission of liability?
2. Did the defendant owe a duty of care to the plaintiff? If so:
(a) What was the nature of the duty of care?
(b) Did the defendant breach its duty of care?
(c) Was the defendant’s negligence a necessary condition of the occurrence of harm to the plaintiff, such that the plaintiff discharged the onus of proving causation?
(d) To what extent did the Work Health and Safety Regulations 2011 (ACT) inform the common law duty of care in this case?
(e) Was the plaintiff contributorily negligent?
3. If the defendant breached its duty of care, what injuries and/or disabilities did the plaintiff suffer as a result of the negligence of the defendant and were those injuries and/or disabilities those claimed by the plaintiff?
4. If the answer to the foregoing question is in favour of Ms Rhodin, what is the measure of damages to which she is entitled arising from those injuries and/or disabilities?
I now turn to each of these issues.
TO WHAT EXTENT DID THE ACCEPTANCE BY THE DEFENDANT OF A WORKERS COMPENSATION CLAIM IN RESPECT OF THE PLAINTIFF’S INJURIES CONSTITUTE AN ADMISSION OF LIABILITY?
It is not in dispute that the defendant’s insurer accepted the workers compensation claim of Ms Rhodin, continues to pay workers compensation to her, and has paid for medical bills for her in respect of her injury. As a preliminary issue it is convenient to consider the relevance of the acceptance of the workers compensation claim to the question of liability of the defendant at common law, in respect of the injury claimed by Ms Rhodin.
In summary the plaintiff submitted that:
· Ms Rhodin completed an ACT Workers Compensation Claim form in which she described the circumstances in which the accident and injury occurred.
· This description was entirely consistent with the evidence the plaintiff gave at trial.
· The claim was accepted by the defendant’s insurer Wesfarmers, which approved the treatment proposed by the treating medical professionals, and paid the cost of that treatment.
· Ms Zoe Tassell directed Ms Rhodin to consult the Currajong Street Medical Centre, and Dr Qool (a general practitioner at the Currajong Street Medical Centre) referred the plaintiff to, among others, Dr Ian Thong, a pain specialist at Bathurst. Dr Thong reviewed Ms Rhodin at 3-monthly intervals and reported not only to Dr Qool but to Wesfarmers. I understand it is not in dispute that Dr Thong’s services were approved and paid by Wesfarmers. At his last review Dr Thong confirmed that Ms Rhodin suffered ongoing chronic pain
· In such circumstances there was an admission by the defendant that the injury for which treatment has been provided was reasonable and caused by the accident on 2 June 2014 in the seafood cool room at Coles Gungahlin when Ms Rhodin slipped on the ice on the floor and her left forearm crashed into the metal frame of the trolley.
· The defendant has advanced no reason to displace the admission that the conditions in respect of which compensation has been paid were caused by the incident sued upon on 2 June 2014, the disability generally and incapacity to work that has flowed from that, and the need and reasonableness of the treatment provided by Dr Thong and all the other health professionals who the defendant has funded to provide treatment for her
· Section 70 of the Workers Compensation Act 1951 (ACT) provides, inter alia, that an employer is liable to pay the cost of medical treatment reasonably received in relation to the injury.
The plaintiff relied on Morvatjou v Modadkhani [2013] NSWCA 157 at [85], Heuston v Yore Contractors (Unreported, New South Wales Supreme Court, Hunt CJ, 9 March 1992) at pp [4]-[5], and Macolino v Royal North Shore Hospital (Unreported, New South Wales Supreme Court, Badgery Parker J, 22 April 1992).
The defendant submitted, in summary, that:
· Heuston does not assist in determining issues referable to liability in negligence. As was pointed out in Morvatjou at [85], the continued payment of worker’s compensation is merely an admission that the worker is still incapacitated at the time of such payments as a result of the injury received in the course of their employment.
· The fact that an employee is injured in the course of employment does not mean that an employer has been negligent.
· An admission arising out of the application of the principles in Heuston would not dispense with the plaintiff’s onus of proving the causal connection between the defendant’s negligent acts or omissions and the loss for which the plaintiff seeks damages.
· While Heuston is authority for the proposition that payment of compensation is an evidentiary admission of an injury in the course of employment and of incapacity, it is important to bear in mind that its effect does not go beyond that of an evidentiary admission. It does not give rise to any estoppel nor does it bind any party.
· The court must also have regard to all the contrary evidence supporting the proposition that the plaintiff is not incapacitated at all. In this regard, the payment of compensation must be looked at in light of the evidence of Drs McGill, Spira, Keller and Bosanquet.
In Heuston, the plaintiff had led evidence that he had continued, up to the date of the trial, to receive payments of workers compensation from the defendant’s insurer and did so upon the basis that such continued payments amounted to an admission that he was still incapacitated as a result of the injury which he received in the course of his employment. Hunt CJ observed:
In my view, it is open to a jury to regard it as reasonably probable that, if an insurer does dispute a continuing claim for worker's compensation, it would react in the ordinary course of business by ceasing to make further payments, leaving it to the worker to apply for such a determination; a failure to react in that way may therefore amount to an acceptance by the insurer that the worker is still eligible for those payments because he remains incapacitated: Wiedemann v Walpole (1891) 2 QB 534 at 537-538, 539, 541; Lustre Hosiery Ltd v York (1935) 54 CLR 134 at 143-144.
The incapacity to which the worker's compensation legislation refers is that which flows from the worker's physical disability for actually doing work in the labour market in which he was working or might reasonably be expected to work: Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171 at 176-179. As such, it is not materially different to the relevant component of damages in a common law negligence claim.
One consequence of a jury's finding in the plaintiff's favour upon the issue stated in the last paragraph but one is that the continued payment of worker's compensation by the insurer is capable of amounting to an admission by it that the worker was still incapacitated as a result of the injury which he received in the course of his employment. As the High Court made it clear in Lustre Hosiery Ltd v York (at 143), the admissibility of evidence amounting to an admission by conduct does not depend upon proof that the person actually making the payments had knowledge of the plaintiff's entitlement. Evidence of an informal admission (or of conduct amounting to an admission) may always be explained, so that the insurer may give evidence (if it can) that the payments were continued in ignorance of the plaintiff's lack of entitlement to them.
My attention has been drawn to the decision of the Court of Appeal in Huysse v Snowy Mountains Hydro-Electric Authority (1975) 24 FLR 418, in which it was held (at 423) that payments of worker's compensation by the defendant itself pursuant to the Commonwealth Employees' Act 1930, following a determination by the delegate of the Commissioner, did not amount to an admission by the defendant that they were correctly made. Whatever may have been the principle upon which that decision proceeded, it is not, in my view, applicable to payments made pursuant to New South Wales legislation. There can be no doubt that the statutory scheme in this State constitutes the insurer as an agent of the employer with authority to make admissions on its behalf in relation to' a claim (including a common law claim) within the policy.
In my opinion, therefore, the continued payment of worker's compensation is admissible against the defendant in whose name the insurer defends the common law proceedings as an admission that the worker is still incapacitated at the time of such payments as a result of the injury which he received in the course of his employment - such admission always being, of course, open to explanation by way of evidence in the same way as any other informal admission is open to explanation.
…
In the present case, worker's compensation has continued to be paid for just under three years since the award was made. In my view, it is accordingly open to the jury to conclude from the fact that those payments have continued to be made that the defendant has accepted that the plaintiff has remained eligible for them because there has been no change of circumstances in relation to the incapacity found by the Compensation Court and that he has remained incapacitated as a result of the injury which he received in the course of his employment.
(Emphasis added.)
In Morvatjou the appellant claimed that the amount of worker’s compensation benefits represented his past economic loss without any inclusion of cash payments, and further that the payment of workers compensation by an insurer constituted a rebuttable admission that the injured worker was incapacitated at the time such payments were made as a result of the injury received in the course of employment. McColl JA observed at [85]:
I would reject the appellant's submission concerning the effect of the workers compensation payments. In my view Heuston v Yore Contractors Pty Ltd is authority only for the proposition Hunt CJ at CL stated, namely that "the continued payment of worker's compensation is admissible against the defendant in whose name the insurer defends the common law proceedings as an admission that the worker is still incapacitated at the time of such payments as a result of the injury which he received in the course of his employment". It is common ground in this case, as I have said, that the appellant has been fully incapacitated since the accident. Heuston v Yore Contractors Pty Ltd is not, however, authority for the proposition that the amount the workers compensation insurer pays the plaintiff represents his or her income foregone as a result of the accident. It is apparent from the correspondence in evidence in which the respondents' workers compensation insurer sought to claw back amounts it said the appellant had been overpaid by way of workers compensation that the insurer's calculation of his average weekly earnings was undertaken in accordance with a statutory formula as required by the Workers Compensation Act.
That the defendant’s insurer has accepted Ms Rhodin’s workers compensation claim is a fact that Ms Rhodin can rely on, as evidence of an admission by the defendant that Ms Rhodin has suffered a work-related injury which has disabled her: Hunt CJ in Heuston; Jessop v Central Sydney Area Health Service [2004] NSWSC 692 at [96], Dyldam Developments Pty Limited v Jones [2008] NSWCA 56 at [53].
Such an evidence does not amount to an estoppel. As Johnstone DCJ remarked in Kazic v GIO Workers Compensation (NSW) Ltd [2007] NSWDC 342 at [69]:
…However, such admissions do not amount to an estoppel and may be explained away, as they have been in this case. If, in subsequent common law proceedings arising from the same set of circumstances, different evidence emerges, issues are more fully ventilated, and different findings are open, the employer and its insurer are not bound by way of admissions arising from payments of workers compensation in a way that exposes them to an uncontestable liability to pay damages. Such is the forensic risk undertaken by a plaintiff who embarks upon a claim for damages at common law, which extinguishes his rights to workers compensation.
Similarly in Chase v New South Wales [2004] NSWCA 441 after referring to Heuston, Giles JA observed at [70]:
The judge appeared to accept that the admission could be found in the payment of workers compensation benefits. It is correct that she did not consider whether it had been explained away. She did not have to do so. The unexplained admission was plainly taken into account as part of a consideration of the whole of the evidence. Any admission is evidentiary only, to be weighed together with all other evidence, and in her Honour's view on the whole of the evidence the appellant had not established that the injury for which she claimed damages was work related. There was no error in her Honour's approach.
However in Trudy Olsen v Identix Australia Pty Limited [2002] NSWSC 157, Einstein J observed at [182] in relation to Heuston:
Hunt J in Heuston v Yore Contractors Pty Ltd (unreported 9 March 1992) made plain that in a context where continued payment of workers compensation may be admissible against the defendant in whose name an insurer defended common law proceedings as an admission that the worker was still incapacitated, that form of admission was always "open to explanation by way of evidence in the same way as any other informal admission is open to explanation". The explanation proffered by the insurer is clear and satisfactorily explains how it came about that the payments continued in the circumstances.
I also note the following comment of Ashley JA in Ansett Australia Ltd v Taylor [2006] VSCA 171 at [40]:
But in cases where liability in relation to such a claim was accepted, I consider that the acceptance should stand only as an admission by the Authority or self-insurer, speaking for the employer, that such an injury had been sustained. Having regard, however, to the very serious consequences for the Authority or self-insurer flowing from acceptance of a claim – not only in respect of compensation payable under s.98C or s.98E, but also, potentially, with respect to s.134AB(3) and (15) – I consider that such an admission should ordinarily be regarded as very significant; albeit not conclusive, because a defendant, in a particular case, might be able to satisfactorily explain its conduct.
(Emphasis added.)
In this case no explanation has been proffered as to why worker compensation payments to Ms Rhodin continued in the circumstances. While this arrangement is not conclusive in the present proceedings, I consider that the admission of the defendant’s insurer that Ms Rhodin had sustained injuries in her workplace warranting ongoing payment of workers compensation to be significant in the context of examining her claim against the defendant. I note the defendant’s reliance on the evidence of evidence of Doctors McGill, Spira, Keller and Bosanquet, to which I will turn shortly.
2. THE DUTY OF CARE
The familiar elements of a cause of action in negligence are duty, breach and causation of damage; Wallace v Kam [2013] HCA 19; 250 CLR 375 at [7].
As a general principle, it is not in dispute that the defendant owed Ms Rhodin a duty of care as her employer. The leading case in Australia concerning the duty of care of employers and the requirement for the provision of a safe system of work is Czatyrko v Edith Cowan University [2005] HCA 14; 79 ALJR 839.
In that case an employee whose duties included the shifting of furniture and the distribution of mail was injured while attempting to stand on a moveable platform in the course of loading a truck. A platform used in loading was not in position, the employee stepped backwards believing that the platform had been raised, but stepped into space and fell heavily. There was no warning beeper and no oral warning of the fact that the platform had not been raised. The employee claimed, inter alia, damages for negligence in the form of failing to provide safe equipment and failing to provide a safe system of work. In particular, the employee claimed that the employer had failed to take reasonable precautions to ensure his safety in these ways: by failing to provide a warning device to indicate that the platform was in the process of being lowered; by instructing him and another worker to do their work hurriedly and in a manner that "ignored safety issues"; and, by failing to have in place a system of work requiring the employee operating the platform to inform other employees of its movements at any time. The employer denied liability and contended, among other things, that the employee’s injuries were caused or contributed to by his own negligence in failing to look behind him before stepping backwards. The employee was successful at trial, however the first instance decision was overturned in the Court of Appeal of Western Australia.
The High Court observed:
12.… An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury [Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42; (1956) 96 CLR 18 at 25 per Dixon CJ and Kitto J]. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards [Smith v The Broken Hill Pty Co Ltd [1957] HCA 34; (1957) 97 CLR 337 at 342 per Taylor J.]. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work [Smith v The Broken Hill Pty Co Ltd [1957] HCA 34; (1957) 97 CLR 337 at 342-343 per Taylor J; Da Costa v Cockburn Salvage & Trading Pty Ltd [1970] HCA 43; (1970) 124 CLR 192 at 218 per Gibbs J; Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9; (2002) 208 CLR 460 at 500 [128] per Kirby J]
13.The appellant's reliance on these principles is well founded. This case is in our opinion a tolerably clear one. This is not simply a case of a failure to warn. It is a case of a failure to devise and implement a safe system of work, or to provide the appellant with proper and sufficient equipment to enable him to carry out his work safely. The risk that the appellant would attempt to step backwards on to the platform in the belief that it was raised, without checking whether this was the case, was plainly foreseeable. There was no system in place to guard against it. The risk could have been readily obviated by the respondent by the taking of simple measures. The measures included the fitting of a warning "beeper" or the introduction of a system for the giving of an oral warning as and when the platform was being lowered. In light of its failure to implement such or like measures, the respondent was in breach of its duty to take reasonable care to prevent the risk of injury to the appellant. The Full Court therefore erred, in our opinion, in its determination that the respondent was not in breach of its duty.
14.Compliance by the respondent, as an employer, with its duty of care to an employee was not to be measured by reference to the reasonableness of imposing on an occupier of land an obligation to warn members of the public about the obvious risks on the land. The case for the appellant was not that he should have been warned by his employer that if he fell off the truck he might suffer injury, or that if he stepped off the back of the truck into space he would fall. It was not a question of warning the appellant of a risk. It was a question of creating a risk by failing to adopt a safe system of work.
(Footnotes omitted.)
Any liability of the defendant should be examined in light of the following provisions of the Wrongs Act:
42 Standard of care
For deciding whether a person (the defendant) was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant’s position who was in possession of all the information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose.
43 Precautions against risk – general principles
(1) A person is not negligent in failing to take precautions against a risk of harm unless -
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.
(2)In deciding whether a reasonable person would have taken precautions against a risk of harm, the court must consider the following (among other relevant things):
(a) the probability that the harm would happen if precautions were not taken;
(b) the likely seriousness of the harm;
(c) the likely burden of taking precautions to avoid the risk of harm; and
(d) the social utility in the activity creating the risk of harm.
44 Precautions against risk—other principles
In a proceeding in relation to liability for negligence—
(a)the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible; and
(b)the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which it was done; and
(c)the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in relation to the risk and is not of itself an admission of liability in relation to the risk.
45 General principles
(1) A decision that negligence caused particular harm comprises the following elements:
(a)that the negligence was a necessary condition of the happening of the harm (‘factual causation’);
(b)that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (the scope of liability ).
(2)However, if a person (the plaintiff) has been negligently exposed to a similar risk of harm by a number of different people (the defendants) and it is not possible to assign responsibility for causing the harm to 1 or more of them—
(a)the court may continue to apply the established common law principle under which responsibility may be assigned to the defendants for causing the harm; but
(b)the court must consider the position of each defendant individually and state the reasons for bringing the defendant within the scope of liability.
(3)In deciding the scope of liability, the court must consider (among other relevant things) whether or not, and why, responsibility for the harm should be imposed on the negligent party.
Nature of the duty of care in this case
Section 42 of the Wrongs Act provides that the standard of care required of the defendant is that of a reasonable person in the defendant’s position who was in possession of all the information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose.
It is clear that a duty lies on an employer to maintain a safe place of work in circumstances where there is a possibility of surfaces becoming slippery and employees falling as a result. An example of a case in point is Phillips v Woolworths (Queensland) Pty Ltd [1999] NSWSC 678. In that case the injured employee worked as a retail assistant in the delicatessen area of a supermarket. On the relevant day chicken carcasses had been stacked on a trolley. Notwithstanding the plastic lining of the boxes in which the carcasses were stored, juices, blood and other fluid commonly leaked on to the supermarket floor. The trial Judge in that case noted that the matter of leakage had been reported to superiors at the supermarket. An accident occurred when the injured worker’s foot encountered leakage from the stacked chickens and she fell to the ground.
Grove J remarked:
7I accept the evidence of Mr Simpson that the hazard encountered by the plaintiff could very simply have been avoided if the trolley had been fitted with a catch tray or any other simple gadget to prevent such leakage. Indeed the negligence of the defendant in the circumstances I have described is almost self-evident, as was recognised by counsel for the defendant when with some understatement he submitted that that the defence case on liability was not his strongest point.
There is no evidence as to whether the floor of the cool room at Coles Gungahlin itself was kept cold, such that ice could form there. However there is evidence that the cool room contained tubs, with ice in them. There is also evidence before the Court – given by Ms Rhodin – that water and ice appeared to have leaked from those tubs on to the floor of the cool room on Friday 30 May 2014. There is no evidence to the contrary before me.
I infer that the cool room of Coles Gungahlin was kept cool to cold at all times to ensure that the seafood and chicken in that room would remain as cool as possible.
I am satisfied that, in those circumstances, there was the potential for ice to form on the floor of the room, or that if ice did leak on to the floor from tubs in the cool room it would not melt or would not melt quickly. I am further satisfied that if there was ice on the floor, it would be slippery.
I consider this a real, foreseeable risk, and not far-fetched or fanciful: Wyong Shire Council v Shirt (1980) 146 CLR 40 at [15].
I am satisfied that it was incumbent on the defendant to not only have a system in place to prevent liquid (including frozen liquid in the form of ice) leaking on to the floor, but also to take steps to remove any ice which formed on the floor when such ice had been reported.
The defendant was subject to a duty to take reasonable care to avoid the risk of injury to its employees by taking positive action to eliminate risk, provide adequate safeguards and prevent accidents. If the plugs in the tubs containing ice had been removed, as the evidence indicates, it was a foreseeable risk in a cold environment that ice could either form on the floor or fall on to the floor and not melt. If there was ice on the floor, an employee standing on it could slip and be injured. The presence of ice on the floor of the cool room, identified by Ms Rhodin on 30 May 2014 and reported to the defendant, presented an obvious risk of injury to employees slipping on the ice until the ice itself and the reason for the ice forming (or not melting) had been addressed.
Causation
In her claim against the defendant, the plaintiff bears the burden of proving, on the balance of probabilities, any fact relevant to the issue of causation in negligence; s 46 Wrongs Act. As the High Court observed in Strong v Woolworths Ltd t/as Big W [2012] HCA 5; 246 CLR 182 at [18], the determination of factual causation under this provision is a statutory statement of the "but for" test of causation, that is the plaintiff would not have suffered the particular harm but for the defendant's negligence.
Materially, s 45 of the Wrongs Act provides:
45 General Principles
(1) A decision that negligence caused particular harm comprises the following elements:
(a)that the negligence was a necessary condition of the happening of the harm (‘factual causation’);
(b)that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (the scope of liability).
(2) …
(3)In deciding the scope of liability, the court must consider (among other relevant things) whether or not, and why, responsibility for the harm should be imposed on the negligent party.
In Strong the High Court considered the identical section of the Civil Liability Act 2002 (NSW) and held that the determination of factual causation requires proof that the defendant’s negligence was a necessary condition of the occurrence of the particular harm. It is not a requirement that the defendant’s negligence is the sole cause, but only that it is one of a set of conditions necessary for the occurrence of a particular harm.
As the defendant submitted, the Court is required to determine with some precision what a reasonable person in the position of the defendant would do by way of response to the reasonably foreseeable risk: Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54, (2002) 211 CLR 540 at [192].
I am satisfied that the plaintiff slipped on the cool room floor on the morning of Monday 2 June 2014 because of conduct of the defendant. I am satisfied that the plaintiff has proved, on the balance of probabilities, that the defendant:
· failed to ensure that melted ice did not escape on to the seafood cool room from the plastic fish tubs;
· failed to ensure the floor in the seafood cool room was free from a slippery substances or substances by maintaining an adequate system of cleaning;
· failed to warn the plaintiff that the floor in the seafood cool room was not free of slippery substances including, but not limited to, erecting a sign;
· failed to prevent entry, by roping off the doorway or otherwise, into the seafood cool room whilst it was not free of slippery substances;
· failed to devise, institute, maintain and enforce a safe system of work;
· failed to implement an adequate system of hazard identification and management;
· failed to take reasonably practicable steps to minimise the risk of injury; and
· exposed the plaintiff to a risk of injury which the defendant knew or ought to have known.
I am satisfied that, in so doing, the defendant was negligent, and that this negligence was a necessary condition of the happening of harm to Ms Rhodin.
I have formed this view for the following reasons.
Events on 30 May 2014 and 2 June 2014
In respect of events on 30 May 2014 and 2 June 2014, the following facts are evident.
First, Ms Rhodin had not observed ice on the floor of the seafood cool room at Coles Gungahlin prior to Friday 30 May 2014 (Transcript pp 283, 285).
Second, something happened on Friday 30 May 2014 that caused ice to be on the floor of the cool room (Transcript p 286).
Third, Ms Rhodin brought the formation of ice on the floor of the cool room to the attention of Ms Hambley and Ms Topic on Friday 30 May 2014 (Transcript p 286). The communications book in which Ms Rhodin stated that she had reported the ice, is not available. The defendant submits that a communications book referable to that period would have been destroyed in 2016 in accordance with Coles’ normal procedures.
Fourth, ice on the floor can be dangerous because of the possibility of slipping (Transcript p 286).
Fifth, shortly after bringing the ice to the attention of Ms Hambley and Ms Topic on Friday 30 May 2014, Ms Rhodin finished her shift (around 3pm) (Transcript pp 284- 286).
Sixth, the store is open seven days a week – from 6am until midnight. (Transcript p 287).
Seventh, early on the following Monday morning, Ms Rhodin started her shift (Transcript p 287).
Eighth, at around 9am on Monday 2 June 2014, Ms Rhodin went into the cool room and slipped. Ms Rhodin states that she slipped on ice on the floor (Transcript pp 287- 288).
Ninth, Ms Rhodin completed an ACT Workers’ Compensation claim form, and the description in the claim form and the injury she suffered is consistent with the evidence she gave at trial (Transcript p 290).
Tenth, Ms Rhodin’s claim for compensation was accepted by the defendant’s insurer, Wesfarmers (Transcript p 351).
Uncontradicted evidence of Ms Rhodin
Ms Rhodin gave oral evidence over a number of days. In particular:
· Ms Rhodin said that prior to the first time she had seen the ice on Friday 30 May 2014, she had never previously encountered ice on the floor of the cool room, or ice escaping from the tubs (Transcript pp 53-55)
· Ms Rhodin gave detailed evidence about the nature and size of the tubs in the cool room containing fish, and that plugs in those tubs were missing such that she believed there was leakage from the tubs on to the cool room floor.
· Ms Rhodin spoke with both Ms Fiona Hambley and Ms Kathy Topic on 30 May 2014 about the ice on the cool room floor (Transcript pp 59-60)
· Ms Rhodin said that on 30 May 2014 she and Ms Hambley went to the cool room in the seafood section, opened the door and looked in. She continued:
What did you see?---The ice.
Did you then speak to anybody else about the ice?---Fiona and I spoke to Cathy Topic.
What did Cathy Topic do?---I can't recall but the result – I can't recall.
HER HONOUR: Can I just ask a question? You said you saw the ice?---Yes.
What did you actually see?---Well, it's just the rubber matting on the floor and you can see like an ice sheet would be a description on top of it.
MR McILWAINE: How could you tell it was ice?---Because it's frozen and we were touching it to figure out - - -
Who was touching it?---Fiona and myself.
HER HONOUR: How big was the rubber matting? How big is the rubber matting? Does it cover the whole floor or - - - ?---Yes, sorry, it's the whole floor, it's a dark rubber from memory, yes.
MR McILWAINE: With Cathy Topic, what did you do in relation to this ice that you'd seen with Fiona?---I can't recall.
What did you say to Cathy Topic about the state of the floor in the seafood cooler?---I can't recall. I was there when – Fiona was doing more talking to Cathy than myself.
Where were you when all this talking was going on?---In the delicatessen.
Whereabouts?---Outside the seafood cool room.
Was the door to the cool room open or closed when you were having this conversation between the three of you?---I think by that point we had closed it.
(Transcript pp 61-62.)
· Ms Rhodin stated that she reported the existence of ice in the communications book on 30 May 2014. In particular she deposed:
Was there a book that was used to write any incidents that needed to be reported?---Yes.
What was that book called?---It was called the communications book.
Did you log anything in that communications book?---I did, yes.
What did you log in the communications book?---I wrote the date and the time and that we had become aware of ice on the seafood cool room floor and that we had had a discussion, Fiona and I, and probably – the result was we were going to put salt on it.
MR BRIDGE: Your Honour, I'm not sure whether this is – I know what the witness is saying, whether it's strictly responsive to Mr McIlwaine's question which his what was written in the book? If the witness could confine herself to what was written I have no problem with that.
HER HONOUR: All right, thank you?---So basically we wrote the date, the time, that there was ice on the floor, that I had reported it and that we'd discuss what was going to happen with it, but I felt it was important to - - -
MR BRIDGE: No. I object to this.
WITNESS: - - - log it.
MR BRIDGE: Can you just answer what you wrote?---The date, the time, that there was ice on the seafood cool room floor, that we had - Fiona and I had looked at it and there were two fish tubs there missing plugs on that day on the floor.
HER HONOUR: So you wrote all this?---Yes.
Right?---In great detail.
MR McILWAINE: Tell us what you wrote. Don't editorialise. Tell us what you wrote?---It's four years ago. So I wrote the day, the time, that we'd discussed it that there was ice. I also wrote that we believed that it was ice formed from the two fish tubs leaking the water out because you cold see them on the floor. They weren't mean to be on the floor, so that was put in there, that this is why this has happened. So then the person then closing seafood at night and doing this can be spoken to and - - -
MR BRIDGE: Your Honour, that's - - -
MR McILWAINE: What did you write. That's what we want to know? ---That's what I wrote.
HER HONOUR: All right?---Sorry.
MR McILWAINE: Sorry.
HER HONOUR: Thank you?---It was - - -
No. All right. So - - -?---- - - detailed.
Just imagine you're looking at the thing you wrote?---Mm'hm.
So try and see it in your mind's eye what you'd written. So that's what you wrote. Just - it's like reading it out from your mind what you'd actually written. So you said you'd written the date, the time, something like you'd become aware of the ice. You said that?---Became aware of ice on seafood cool room floor.
Okay?---Spoke to Fiona Hambley about said ice. Looked at why the ice was there in the first place. I then mentioned the two fish tubs that were on the floor without plugs in them, and that that can't - that shouldn't happen that they're there without the plugs, and that the conclusion to resolve the situation was to put salt on the ice.
Right.
MR McILWAINE: That's what you wrote?---That's what I'm fairly confident I wrote. I know it was very detailed. It was four years ago.
You said earlier something about some plugs in these - - -?---I mentioned the plugs.
Did you write that?---I'm fairly confident I did. I do write fairly detailed normally.
All right. I call for the communications disc, your Honour.
MR BRIDGE: Not produced, your Honour.
HER HONOUR: Beg your pardon?
MR BRIDGE: It's not produced, your Honour. We can't find it.
(Transcript pp 62-64.)
In relation to the incident on Monday 2 June 2014 Ms Rhodin deposed:
HER HONOUR: Just before you get there, there were no chicken fillets in the cabinet obviously?---Chicken fillets were kept in that cool room on the right-hand side on shelves. They were in there.
But there were none – normally when you walk - - -?---In the cabinet, no.
- - - into Coles there are some sitting there in front of you - - -?---Correct.
- - - and you say, "I'll have one that - I'll have that one", or "I'll have two of them"?---Yes, I understand you now and I do apologise. No, it wasn't set up yet so there were none in the window.
All right. Thank you.
MR McILWAINE: Okay. So you've gone in, and you just continue on what happened?---So I've opened the door and gone in to get the chicken fillets, and I have slipped, just started moving and slipping across the floor, and on my left-hand side was that trolley I referred to earlier as that tall close-down trolley, and I put my arm out to grab it to stabilise myself, and instead of grabbing it, I ended up hitting it with my forearm, and then my body went into my forearm on the trolley.
Do you - yes.
HER HONOUR: So when you say your body went into your forearm, you mean like you spun around on your arm?---No. I've hit it, and then my body has hit it. I didn't actually end up successfully grabbing the trolley at all. I've just hit it.
Thank you.
MR McILWAINE: And what happened next? Or what did you notice about yourself when that happened?---I was just, you know, well, thank goodness I didn't - - -
But what did you notice?---I noticed ice on the floor.
What did you notice about yourself?---Myself. Sorry, I've got a hearing impediment actually in my right ear. But I noticed about myself that I was completely shaken and I'm trying to understand what had happened.
(footnotes omitted)
As the majority said in Medlin, the onus is on the plaintiff to establish that she has suffered a loss of earning capacity and that the loss of that earning capacity was productive of financial loss. This point was emphasised by Buchanan J in Bole v Territory Scaffolding Pty Ltd [2013] ACTCA 43 at [53] where his Honour observed:
In my respectful view, an onus falls, and remains, on a plaintiff to make out a proper case for future economic loss. A defendant is not required to rebut assumptions or inadequate attempts at proof. A defendant is only required to answer a case which might otherwise come up to proof of a relevant matter.
Buchanan J further observed in Bole at [41]:
There seems little doubt that a defendant who asserts that a disabled plaintiff (who claims to be wholly disabled) has a residual earning capacity bears an evidentiary onus to make that contention good…
(Emphasis added.)
The plaintiff submitted, in summary:
· She had demonstrated a capacity to work as a senior property manager prior to deciding to take a break for approximately 18 months and then return to working in that field.
· As at 2013 that capacity rewarded the plaintiff with after-tax weekly earnings of approximately $1,100.00 plus a compulsory employer superannuation contribution.
· Following the accident the plaintiff was certified for only selected duties with limitations on lifting, and from August 2016 the plaintiff has been unable to work at all.
· The plaintiff has given evidence that she would be unable to perform the duties of a senior property manager in the real estate industry, or perform any duties in which she had experience in that industry prior to the accident (Transcript p 107).
· The defendant has not discharged its evidentiary onus of proving that Ms Rhodin has a residual earning capacity.
On the other hand the defendant submits, in summary:
· Even if it is accepted that the plaintiff was incapable of working, the court would not accept the plaintiff's evidence that she was intending to re-join the real estate industry as a property manager.
· In his reports Dr McGill noted that Ms Rhodin had told him that she found real estate a very stressful industry, and the she would never work in the real estate industry again. His report is substantiated by evidence of Ms Rhodin to the effect that:
(a) She chose to stop working in the real estate industry and to start at Coles (Transcript p 50).
(b) She found her jobs in real estate to be “stressful” (Transcript p 142).
(c) She described real estate as a “problem plagued industry” (Transcript p 45).
(d) She had left a number of real estate jobs because she was unhappy (Transcript p 142).
(e) She did not return to the real estate industry when she moved to Parkes, as she preferred to remain with Coles (Transcript p 143).
· In any event, even if the plaintiff had intended to return to work in the real estate industry, the Court should not find that the plaintiff would have enjoyed the same employment opportunities in Parkes as she had in Canberra. This proposition is supported by evidence of Ms Rhodin, who accepted that there was not the same market for real estate in Parkes as compared with Canberra (Transcript p 131).
· It follows that the only future economic loss to which Ms Rhodin could be entitled for lost income would be assessed at a rate of $590.00, namely the rate at which she would have been paid had she continued to work at Coles.
I have earlier referred to the evidence before the Court that Ms Rhodin is unable to work, and accepted that evidence. The question remains however as to the quantum of damage of her loss of earning capacity.
In my view Ms Rhodin has not substantiated her claim that an earning capacity as a property manager in real estate has been diminished by reason of the negligence-caused injury.
While Ms Rhodin historically had worked in real estate, on the evidence before the Court, at the time she worked at Coles she no longer worked in real estate because she did not like it, found it stressful, and had chosen to exit that industry some time before the accident. I am not satisfied on the evidence that Ms Rhodin was merely taking an 18 month “break” from her “real” career in real estate to work at Coles. While Ms Rhodin had history working in real estate, she had made a permanent break from working in that industry. There is, for example, no evidence that she had taken leave from an employer in the real estate industry to take temporary work at Coles. The fact that Ms Rhodin had worked in real estate historically did not mean that, at the time of her accident, she had an “earning capacity” in that respect. As the majority pointed out in Medlin, it was incumbent on the plaintiff to establish that her earning capacity had in fact been diminished by reason of the negligence-caused injury. I do not consider that the facts support this aspect of her claim.
A question arises as to whether Ms Rhodin had earning capacity as a property manager, even if she was not fully utilising that capacity at the time of her accident. However as Crispin J observed in Hall v Stove [2007] ACTSC 75 in similar circumstances:
97. Any assessment of the plaintiff’s loss of earnings is also fraught with difficulty. Mr McIlwaine stressed that he is entitled to damages to compensate him for his loss of earning capacity, even if he had not been fully utilizing that capacity at the time of the relevant injuries. Nonetheless, it seems to me that any assessment of earning capacity must take into account, not only such obvious factors as qualifications, experience, physical prowess and intellectual ability, but also matters of temperament and predisposition to the extent relevant to this issue.
(Emphasis added.)
(I note that an appeal was allowed against the decision of his Honour in Stove v Hall [2008] ACTCA 21, however not – so far as I can ascertain – insofar as aspect of his Honour’s reasoning was disturbed).
The evidence establishes that, notwithstanding her previous experience in real estate, by 2014 Ms Rhodin was not temperamentally inclined towards working in that industry.
Further, as the defendant properly submits, there is no evidence before me as to what Ms Rhodin’s earning capacity in real estate would have been in Parkes. It is necessary that the plaintiff substantiate the economic consequences which would flow from the claimed loss of earning capacity. In this case Ms Rhodin relies on her claimed earnings in 2013, in Canberra, in her last position in real estate. Ms Rhodin gave evidence that, before working with Coles, she had had 5 positions with 5 different real estate employers in 5 years, in summary Badenoch Real Estate (3 months); LJ Hooker (8 months); Raine & Horne (7 months); Ray White (12 months); and, Elders (4 months). Having regard to the smaller market for property services in Parkes and her fragmented employment history I am not satisfied that Ms Rhodin has established that she would have found employment as a senior property manager in Parkes and, even if she did, that she would have been remunerated at a comparable level to what she was earning in Canberra in 2013.
In my view it is appropriate to assess Ms Rhodin’s lost earning capacity as referable to her chosen career in retail, namely $590.00 per week after tax (being the amount she would have been paid had she continued to work at Coles full time).
Ms Rhodin ceased working full time in Coles on 27 November 2014 when she was issued a medical certificate imposing restrictions on her work (Transcript p 95). I understand that until 27 November 2014 Ms Rhodin was being paid a full time salary for working at Coles (either Coles Gungahlin or Coles Parkes).
The evidence does not support a finding that, prior to 27 November 2014, Ms Rhodin had lost her earning capacity in circumstances where she was continuing to work full time in her job with Coles and earning a full time salary. It also appears that her condition overall deteriorated such that by this date she was unable to continue working full time.
Damages in respect of lost earning capacity should be assessed from the date on which Ms Rhodin ceased to work full time and be paid a full time salary, namely 27 November 2014.
From that point onwards, Ms Rhodin’s health was such that she had no exercisable retained capacity to earn to normal retirement at the age of 67 years.
In respect of her past economic loss to be calculated from 27 November 2014, Ms Rhodin is entitled to interest at 9% (Lee v McGrath [2018] ACTSC 173 at [122]).
The quantum of damages for future economic loss should be calculated by reference to a 3% multiplier until a retirement age of 67 years x 590 less 15% discount for vicissitudes (Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485; 70 ALJR 147). I will direct the parties to do final calculations in respect of quantum of past and future economic loss.
Ms Rhodin is also entitled to an award for lost compulsory superannuation for the pre-trial period at 11% of the pre-trial loss, and for future economic loss at a rate of 13%, referable to the sum of $590.00 per week. Again, I will direct the parties to prepare final calculations in this respect.
Gratuitous Care
At 10.1 of the ASOC, Ms Rhodin seeks compensation for past and future domestic care and assistance: Griffiths v Kerkemeyer (1977) 139 CLR 161; 51 ALJR 792. This claim is particularised in the plaintiff’s submissions.
Ms Rhodin also seeks damages under the Wrongs Act, namely damages for loss of capacity to perform domestic duties. Section 100 of the Wrongs Act provides:
100. Damages for loss of capacity to perform domestic services
(1) A person's liability for an injury suffered by someone else because of a wrong includes liability for damages for any resulting impairment or loss of the injured person's capacity to perform domestic services that the injured person might reasonably have been expected to perform for his or her household if the injured person had not been injured.
(2) In an action for the recovery of damages mentioned in subsection (1), it does not matter—
(a) whether the injured person performed the domestic services for the benefit of other members of the household or solely for his or her own benefit; or
(b) that the injured person was not paid to perform the services; or
(c) that the injured person has not been, and will not be, obliged to pay someone else to perform the services; or
(d) that the services have been, or are likely to be, performed (gratuitously or otherwise) by other people (whether members of the household or not).
(3) In this section:
"wrong" means an act or omission (whether or not an offence)—
(a) that gives rise to a liability in tort; or
(b) that amounts to a breach of a contractual duty of care that is concurrent and coextensive with a duty of care in tort.
As mentioned above, Ms Rhodin gave evidence that after the injury her daughter Chelsea initially helped with domestic matters to the best of her ability whilst Mr Taylor was away, however she had two small children and her husband was often away doing shift work. Chelsea would peg the clothes on the line, wash the floors, vacuum, put pillowslips back on and help Ms Rhodin make the bed (Transcript p 99). Ms Rhodin gave evidence Chelsea would help with anything her mother needed when she could, although it was difficult for Chelsea given the constant change in her partner’s shifts.
Mr Taylor gave evidence that upon Ms Rhodin’s return to Parkes, the responsibility for the house work fell on him. He had to clean the bathrooms, clean the floors, mop the kitchen floor, change the linen, keep the kitchen clean and do the clothes washing (Transcript pp191-192). This evidence was unchallenged.
Ms Rhodin gave evidence that he also “does the dishes, he peels potatoes and chops food that needs to be peeled or chopped” (Transcript p 100). He also made the beds, did the shopping and cooked, including activities like putting a roasting pan in the oven and taking it out again (Transcript p 101). Further, Mr Taylor now does the general house maintenance, including removing cobwebs, sweeping the paths, cleaning the windows and wiping glass doors (Transcript p 102).
Ms Rhodin gave evidence that the domestic duties now performed by Mr Taylor (usually performed by her) consisted of 15 hours per week (Transcript pp 100-102).
The plaintiff was cross-examined regarding her need for domestic assistance (Transcript pp 173-177).
In relation to washing clothes, Ms Rhodin gave evidence that she can take washing out of the washing machine but that this is not always without pain (Transcript p 174). If Ms Rhodin is to wash her clothes, she must use one hand and “take out one item at a time”, which takes longer. This is the same with drying clothes.
In relation to vacuuming, Ms Rhodin cannot use a big vacuum cleaner but rather ‘a little swivel’ stick vacuum (Transcript p 176). Due to this, she no longer vacuums the house. Ms Rhodin states:
‘If Russell isn’t around, my living standard isn’t now what it would have been previously’ (Transcript p 176).
Mr Taylor gave evidence that the fusion of his right ankle in November 2015 kept him out of the workforce (Transcript p 193). He was due to have further surgery in June 2018, which would permit him to return to his previous work if successful (Transcript p 193). Mr Taylor’s previous work involves him being away for 10 days at a time (Transcript p 194).
Counsel for the plaintiff submits that it is not reasonable for Mr Taylor to continue to provide the home assistance, nor is it reasonable to expect Chelsea to do so because she has family commitments. On this basis, damages for gratuitous care from the date the plaintiff returned to Parkes following the accident until September 2018 and thereafter have been calculated and provided at [10.4] of the plaintiff’s submissions.
Counsel for the plaintiff submits that an appropriate time to end the calculation for gratuitous care is September 2018, and from then assistance should be calculated by reference to commercial rates. The plaintiff relied on:
1. A quote for general home cleaning provided by Greg and Maureen Boardman for cleaning at 2/4 Parkes Street, Parkes, including bathrooms, vacuum cleaning, dusting, mopping hard floors etc. This quote was for $45+GST over a period of 4 hours per week, totalling $198 per week including GST.
2. A quote by Jim’s Mowing Parkes for whipper snipping and mowing every 2 weeks in Spring, Summer and Autumn, and 3 weeks in Winter, quoted $75 including GST each visit.
The defendant disputes the need for such care, citing a lack of symptomology supporting Ms Rhodin’s case.
The defendant submits that the plaintiff did not require gratuitous care during the time she was working at Coles Gungahlin and in Parkes, given she was able to work and lift up to 10 kilograms and maintain her normal duties.
The defendant submits that there was no medical need for the care because the entitlement to care is for the reasonable costs of fulfilling a need created by an injury sustained in an accident. It argues further that if there was a need for domestic care, it was not caused by the physical consequences of this accident.
The defendant relied on an observation of Dr Spira in his first report, namely:
(ii)(A) Ms Rhodin informs that over the period of following her sustaining her wrist injury she experienced difficulties in terms of self care as well as with respect to household and gardening activities. This was a little difficult to reconcile with the fact that she did not seek medical attention for some 6 months after sustaining her injury. It appears, however, that her disuse of her left arm was cumulative and for a considerable period of time after she sustained her trauma she was capable of participating in work up until her general practitioner recommended that she desist in November 2014.
…
(C) Unless Ms Rhodin can be convinced to re-utilise the left upper limb she will remain in her current state in terms of self-care and household activities.
Further in his second report, Dr Spira observed:
I believe that Ms Rhodin is capable of reutilising her left upper limb given appropriate management and you should be able to re-establish bi-manual activities, and, therefore, not require long-term assistance.
The defendant also relies on the opinion of Dr McGill where he stated:
She does not require assistance for normal home duties. She has the physical capacity to return to normal function with her left upper limb. It is reassuring that she has been using it sufficiently to avoid muscle wasting or other signs of disuse. The provision of physical assistance when it is not required does not assist a return to normal function.
Finally, the defendant submitted that domestic assistance for Ms Rhodin would be counter-productive because it discouraged her from utilising her left arm.
The parties accept that the rate for gratuitous assistance is $35 per hour (Transcript p 20).
It is well-established that gratuitous care provided to a plaintiff is compensable: Griffiths v Kerkemeyer. This service can be of a domestic nature, and the services must have been reasonably required by the plaintiff due to their physical condition attributable to the accident. As Mason J said at [193]:
“It is now recognized that the true loss is the loss of capacity which occasions the need for the service.”
In Van Gervan v Fenton (1992) 169 CLR 245; 66 ALJR 828 the High Court considered a matter where the husband, through injury and consequent disability, required significant care of a nursing nature which was provided gratuitously to the plaintiff by his wife. The wife had been employed full time prior to the husband’s injury. The Court rejected the calculation of assessing the husband’s claim with reference to what the wife would have earned if she had remained in full time employment. Rather, in the majority judgment, Mason CJ, Toohey and McHugh JJ argued that by using market cost criteria, the plaintiff can be properly compensated by the award of a reasonable sum regardless of whether the gratuitous care provider continues to provide care at [337]. Their Honours also rejected the necessity for the plaintiff to prove that the need was or might be productive of financial loss.
It is irrelevant that Ms Rhodin did not pay her daughter, Chelsea or her husband, Mr Taylor for performing the domestic services mentioned above. Further, it does not matter that the services were performed by Chelsea and Mr Taylor rather than by Ms Rhodin.
If the plaintiff’s injury has resulted in a loss, being the need for someone to perform household services that she would have carried out but for the injury for the benefit of the household, that loss must be quantified: Hodges v Frost (1984) 53 ALR 373.
I am satisfied that Ms Rhodin’s pain from her injured arm and the restrictions on her usage of that arm have resulted in impairment of her capacity to perform domestic services that she might reasonably have been expected to perform for her household if she had not been injured: Section 100 Wrongs Act, Miles CJ in McKindley v M J Campbell Nominees Pty Ltd (Unreported, Supreme Court of Australian Capital Territory, Miles CJ, 5 December 1994) at [32], Molyneux v Guy [2007] ACTSC 99.
I am satisfied that Ms Rhodin is entitled to damages in respect of gratuitous care, to be calculated from 27 November 2014 (when her condition had deteriorated to the point that she was no longer able to work full time). The plaintiff submits that damages should be calculated from 7 June 2014, being the date Ms Rhodin moved to Parkes following the accident, however I am not satisfied that Ms Rhodin was unable to perform domestic tasks at that time.
Damages in respect of gratuitous care should be calculated on the basis of 15 hours per week at $35 per hour x 196 weeks (being from 27 November 2014 until 1 September 2018 around when Mr Taylor was due to recommence full time work) totalling $102,900 plus interest at 3.5% per annum (Grincelis v House [2000] HCA 42, (2000) 201 CLR 321).
In respect of commercial assistance after 1 September 2018, I find that Ms Rhodin is entitled to damages as follows:
1. Home care = $45+GST per hour x 4 hours per week= $198 per week inclusive of GST. The plaintiff's life expectancy is to age 88, however the calculation only takes the plaintiff to age 80 to take account of her advance years by that time. The 3% multiplier for 28 years is 993.7. Household assistance to be provided by Greg and Maureen Boardman is $198 x 993.7 = $196,752
2. Jim's mowing: 22 visits per annum at $75 per visit= $1,650 per annum or $31 per week. The Plaintiff claims this until age 75 to take account of her advanced years by that time. The relevant multiplier for 23 years is 870.8. $31 per week x 870.8 = $26,994.
Past and future medical expenses
Out of pocket pre-trial medical expenses
The out of pocket medical expenses incurred by the insurer Wesfarmers in respect of Ms Rhodin’s treatment until the trial were $148,464.00. The plaintiff has claimed this amount on the basis that the defendant will seek to reclaim it (Transcript pp 20-21).
In circumstances where I have found that Ms Rhodin’s injuries were caused by the negligence of the defendant, I find that she is entitled to claim her medical expenses from the defendant for relevant medical treatment, including the out of pocket medical expenses incurred prior to the trial.
Bed
In 2017 Ms Rhodin purchased a large bed for $2,429 from Parkes Furniture. Ms Rhodin deposed the following in relation to the purchase of the bed:
MR McILWAINE: So by 2017 did you buy yourself a special bed?---I bought myself a bed, yes.
Can you just describe what that - - - ?---The other bed we had was fine, however I couldn’t sleep, we couldn’t both fit in the queen bed we had with my arm outstretched comfortably, so we bought a king bed.
Did you discuss that with Dr Thong?---Yes.
Did he have any comment to you about that?---Yes, he thought – he mentioned – he said that it would be better for me to be going to sleep with it outstretched and that he would support the purchase of the bed.
So when he says to let the arm hang away from the body is that one of the things you’re shown?---I was trying to explain that to Dr Thong and it’s not hanging, I certainly couldn’t hang the arm. So I would believe that he has misunderstood me as far as hanging.
HER HONOUR: So it’s not dangling over the edge of the bed?---That’s right, not dangling over the edge.
MR McILWAINE: No, it’s 90 degrees?---Yes.
Is that right?---Yes.
Did you ask Wesfarmers to pay for that bed?---Yes.
Did they?---No.
Did that bed cost you $2,429?---Yes.
If you hadn’t had the problems with your left arm as you’ve described to her Honour would you have bought that bed?---No.
The plaintiff submits that it is reasonable to include the bed in Ms Rhodin’s treatment expenses to date as the reason the bed was purchased was to allow Ms Rhodin’s left arm to be outstretched when she sleeps. While in their written submissions the plaintiff does not direct me to any specific medical evidence, before me Counsel for the plaintiff noted that Dr Thong wrote to Dr Qool on 12 August 2016 in relation to the bed. In his letter he stated
“She [Ms Rhodin] has bought a new bed to let the arm hang away from her body which has helped”.
The defendant does not dispute the cost of the bed, however, it disputes Ms Rhodin’s need for it. The defendant submits that the medical evidence indicates that the injury suffered by Ms Rhodin is not caused by the accident.
I do not accept the defendant’s submissions on liability and injury. Further, I find the undisputed evidence of Ms Rhodin that she would not have purchased the bed but for her injury persuasive and note the evidence of Dr Qool that the bed has helped in managing Ms Rhodin’s condition. In my view that purchase of the bed was the result of Ms Rhodin’s injury and it is reasonable to allow this expense.
It follows that Ms Rhodin is entitled to damages in the amount of $2,429 for a bed.
Future medical treatment
The plaintiff further submits that her evidence and the historical payment of medical expenses by the defendant supports a finding as to the need and reasonableness of the following treatment into the future:
Item Weekly rounded General Practitioner $100 x 6 attendances per year $12 Psychologist $180 x 6 attendances per year $21 Neurosurgeon $598 x 2 attendances per year) $23 Pain Specialist $148 x 4 attendances per year) $11 Wrist brace $100 x 4 per year $8 Prozac @ $1 per day $7 Cream $12 Heat packs $7 Cost of travel to appointments (x10km/week) $7 Subtotal: $127 Calculated to age 80: $127 x 993.7 = $126,200 Dentist $17,500 TOTAL $143,700
I note that in ANNEX B to her written submissions the plaintiff had identified a rounded figure of $2 per week for attendance at the psychologist, however I consider this was an error, and that the correct figure is $21.
Future medical treatment
As is clear from the medical evidence tendered in this matter, Ms Rhodin has attended her general practitioner, psychologist, neurosurgeon and pain specialist since incurring her injury. Ms Rhodin also deposed that she intends to continue to seek the services of these practitioners (Transcript p 98). I consider that Ms Rhodin will need to continue receiving medical treatment for her injury, and that it is appropriate and necessary that she continues to receive medical care from these practitioners. The number of attendances and projected cost of these attendances is in my view reasonable, and is not contested. I award damages in the amount she has claimed.
Cream and heat packs
The plaintiff seeks the cost of Blackmores cream ($12 per week) and heat packs ($7 per week). Ms Rhodin gave evidence that she uses the Blackmores cream as “it assists with the wrist pain slightly”. Further Ms Rhodin provided evidence regarding the cost of the cream and heat packs and her frequency of use (Transcript p 97).
Dr Thong observed on 29 January 2016 that Ms Rhodin was using heat packs with benefit. He further observed on 12 April 2016 that Ms Rhodin continued to utilise heat packs. Dr Qool also noted that Ms Rhodin was “using a lot of portable heat pads because each lasts 10 hours and provided a small amount of relief when wearing them”.
The defendant does not dispute the cost of the heat packs or Blackmores cream but does dispute whether Ms Rhodin requires them.
I accept that these treatments provide some benefit to Ms Rhodin in relieving her symptoms. In that respect, and in the absence of evidence to the contrary, I accept that the plaintiff has established their necessity, and award damages in the amount she has claimed.
Prozac
As I have explained above, I consider that Ms Rhodin suffers depression as a result of her injuries and pain. The evidence indicates that Ms Rhodin has been prescribed the anti-depressant Prozac. In light of my acceptance of Ms Rhodin’s diagnosis of depression I find that her continued use of Prozac is necessary and reasonable for her on-going treatment. I award damages in the amount she has claimed.
Dentition
I have found that the damage to Ms Rhodin’s dentition is a continuing disability as a result of the accident. A letter by Dr Teo dated 5 February 2018 identified chronic regional pain syndrome and major depression as contributing factors to her temporomandibular joint disorder and bruxism, both of which have resulted in dental wear and the current state of her teeth. In this letter Dr Teo also sets out the future dental case required including a clean, fillings, root canals and extractions followed by more complex treatment including crowns and TMD management involving dental applications such as splints. Dr Teo estimated that the total cost of dental care required by Ms Rhodin would be approximately $15,000 to $20,000.
The defendant has not contested this estimate. In the circumstances, where damage to Ms Rhodin’s dentition has been caused by stress related to her injury, I consider it appropriate to award her damages in the amount of $17,500.
Travel to medical consultations
Ms Rhodin also submits that the cost of travel incurred by her in attending her medical treatments should be considered in any award of damages.
The cost of travel to attend medical consultations is a proper head of damage in negligence claims. In Posetti v Kosciusko Thredbo Pty Limited [2004] ACTSC 50 for example, the Court observed:
178. The plaintiff has not, for some time, required expensive medical treatment, but she needs to see her general practitioner from time to time. She requires both prescribed and over-the-counter medication, and she will need psychological counselling in the short to medium term. Rather than conducting a mathematical exercise, it seems to me that the assessment of an amount to compensate the plaintiff for future treatment expenses calls for the exercise of a broad discretion. I propose to allow $25,000, which includes an allowance for the cost of travel to and from her treatment providers.
Further, in Pangallo v Smith [2015] ACTSC 313, Mossop AsJ said:
92. In relation to the cost of travel, there was no evidence relating to the cost of running the plaintiff’s vehicle although there was some evidence led of the distances from the plaintiff’s house to his general practitioner, to his surgeon and to his hydrotherapy. The distance to his hydrotherapy is about 50 km return. His evidence was that he attended that two days per week. That gives a distance of approximately 100 km per week or, adding an allowance for other medical attendances, 105 km. In the absence of any evidence about the size, age or cost of the vehicle which he is actually likely to be operating and having regard to the fact that he would be operating a vehicle in any event I will only adopt a rate of $0.15 per kilometre.
It is appropriate for Ms Rhodin to receive an allowance for the cost of travel to her medical appointments. The plaintiff submits that this allowance should be at a rate of 66 cents per kilometre, which I understand has been calculated to be $7.00 per week, based on 10 kilometres per week of travel, until Ms Rhodin reaches the age of 80 years. I award damages in this amount.
Wrist brace
During the hearing Ms Rhodin gave the following evidence:
MR McILWAINE: Were you fitted with a wrist brace by Jacki Shannon? ---Yes.
Have you worn that wrist brace ever since?---Yes.
Can you show her Honour, please, the wrist brace. Pull your sleeve up a bit, please. Do you wear that at night?---Yes.
Is it with you all day? Do you ever take it off?---I do, to massage and that sort of thing. But other than that, no.
24-7, in other words?---Yes.
(Transcript p 84)
There is little evidence before me that the wrist brace has resulted in improvement to Ms Rhodin’s condition. Dr Bosanquet for example said in his report of 6 May 2016 that despite (inter alia) use of a wrist splint, there had been no further improvement. The medical evidence adduced by the defendant supports the proposition that indeed Ms Rhodin should not use a wrist brace, however this is on the basis that her condition has a psychological (rather than physical) foundation, which I do not accept.
I am satisfied however that Ms Rhodin has received some symptomatic relief from the use of the wrist braces. Dr Thong noted as much in his reports of 25 March 2015, 9 October 2015, 6 November 2015 and 12 August 2016. Based on the evidence of Ms Rhodin and Dr Thong, Ms Rhodin’s claim in respect of wrist support is substantiated.
COSTS
The plaintiff claimed costs in her originating claim. As a general rule, costs follow the event: Oshlack v Richmond River Council (1998) 193 CLR 71; 72 ALJR 578 at [67] (McHugh J) and [120]-[122] (Kirby J), Clarkson Williams Partners Pty Ltd v Vaughan (No 2) [2016] ACTCA 8, Penfold, Burns and Rangiah JJ noted at [9], Primavera Holdings Pty Ltd v Golding [2018] ACTCA 30 at [6] (Loukas-Karlsson J). This general rule is, however, subject to the power of the Court to make other orders where appropriate: Vaughan at [9], cf rule 1705 (1) Court Procedures Rules 2006 (ACT).
No submissions were made by either party in respect of costs.
It is appropriate for the plaintiff to receive her costs in this matter, such costs to be taxed if not otherwise agreed.
CONCLUSION
Overall, the plaintiff has substantiated her claim, although I did not accept some aspects of her claim in respect of quantification of loss of earning capacity and elements of her case in respect of general damages.
During the hearing Counsel for the plaintiff suggested that I might be minded to make findings in respect of the plaintiff’s claim, and the lawyers would then “do the maths” (Transcript p 263). I understand that there was no demur to this approach by the defendant. It was clear from the submissions of the parties that final orders would depend on mathematical calculations which would vary because of such factors as ongoing treatment expenses, ongoing payments of compensation, income tax implications (Fox v Wood (1981) 148 CLR 438; 55 ALJR 562) and lost compulsory superannuation contributions. Up to date figures will need to be provided by the parties.
In circumstances where the final orders will require further information including relevant calculations by the parties, it is appropriate that, in accordance with s 5A of the Court Procedures Act 2004 (ACT), I direct the parties to provide draft orders, jointly if possible, giving effect to these reasons, including identifying the total quantum of damages.
THE COURT ORDERS THAT:
Within 21 days, the parties provide the Chambers of Justice Collier with draft orders giving effect to these reasons.
| I certify that the preceding three hundred and fifty-nine [359] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Collier. Associate: Date: 12 August 2019 |
4
31
6