Rushton v Woolworths Ltd

[2016] QDC 110

DISTRICT COURT OF QUEENSLAND

CITATION:

Rushton v Woolworths Ltd [2016] QDC 110

PARTIES:

RUSHTON, Carol
(plaintiff)

v

WOOLWORTHS LIMITED
(ACN 000 014 675)
(defendant)

FILE NO:

D 126 of 2013

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

Maroochydore

DELIVERED ON:

20 May 2016

DELIVERED AT:

District Court at Maroochydore

HEARING DATE:

4-6 May 2015, 17 April 2015

JUDGE:

Long SC DCJ

ORDER:

Judgment for the plaintiff in the sum of $14,917.12

CATCHWORDS:

PERSONAL INJURY – ASSESSMENT OF DAMAGES – Where the plaintiff was impacted by a trolley that was pushed by the defendant’s employee – Where the plaintiff suffers injury to her left hip, knee and ankle – Where the plaintiff makes a claim for damages for personal injury – Where the defendant admits liability for the incident – Where the plaintiff has an underlying arthritic condition to her knee – Where injuries accelerate the underlying degenerative condition of knee and precipitate consequences in her hip

PERSONAL INJURY – GRATUITOUS CARE – Where the plaintiff’s husband performs domestic services to his wife’s particularity – Whether the services performed by the plaintiff’s husband were “necessary” pursuant to s 59(1)(a) of the CLA – Whether there was a “need” for the services pursuant to s 59(1)(b) of the CLA – Whether the need or necessity for services is assessed  objectively

CASES:

Coles Supermarkets Australia Pty Ltd v Haleluka [2012] NSWCA 343

CSR Ltd v Eddy (2005) 226 CLR 1

Downes v AffinityHealth Pty Ltd [2016] QCA 129

Griffiths v Kirkemeyer (1977) 139 CLR 161

Kriz v King [2007] 1 Qd R 327

Luppino v Estate of Collins [2012] QSC 363

Malec v JC Hutton (1990) 169 CLR 638

March v Stramere (1991) 171 CLR 506

Middleton v Melbourne Tramway & Omnibus Co Ltd (1913) 16 CLR 572

Purkess v Crittenden (1965) 114 CLR 164

Shaw v Menzies & Anor [2011] QCA 197

Van Gervan v Fenton (1992) 175 CLR 327

Watts v Rake (1960) 108 CLR 158

LEGISLATION:

Civil Liability Act 2003 (Qld), ss 11, 11(1), 12, 61, 62, 59, 59(1)(a), 59(1)(b), 59(1)(c), 59(3)(a), 60(3)
Civil Liability Regulation 2003 (Qld), Schedules 3, 4, 6A,
Civil Liability Act 2002 (NSW), s 15, 15(2), 15(3)

COUNSEL:

TA Nielsen for the plaintiff

J McClymont for the defendant

SOLICITORS:

Lynch & Associates Lawyers for the plaintiff

DLA Piper Australia for the defendant

Introduction

1. The plaintiff, who was born on 12 March 1947, claims damages for personal injuries as a consequence of an incident which occurred when she was shopping in the defendant’s supermarket at Tewantin, on 20 May 2011 and when she was impacted on her left side by a trolley that was being pushed or manoeuvred by an employee of the defendant.

1. In her evidence, the plaintiff described being hit (with tremendous force that knocked [her] down the aisle) with the consequence of pain on her whole left side.[1]  She described that trolley as being “enormous” and that at 5 feet 9 inches she was not able to “see over or around it”[2] and that…