Taylor v Woolworths Limited

[2009] NSWDC 311

CITATION:	Taylor v Woolworths Limited [2009] NSWDC 311
HEARING DATE(S):	21 - 22 October 2009
EX TEMPORE JUDGMENT DATE:	27 October 2009
JURISDICTION:	District Court - Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1. Verdict for the defendant. 2. The plaintiff is to pay the defendant’s costs on an ordinary basis up to and including the 2 March 2009 and on an indemnity basis thereafter. 3. The Exhibits are returned.
CATCHWORDS:	OCCUPIERS LIABILITY - Trip and Fall - Whether on premises under the control of the defendant - Extent to which the defendant was aware of the condition of the part of the premises on which plaintiff fell - Defendant's reliance on publicly funded domestic care to avoid compensation for care needs
CASES CITED:	Thompson v Woolworths (Queensland) Pty Limited 221 CLR 234
PARTIES:	Evelyn Joyce Taylor (Plaintiff) Woolworths Limited (Defendant)
FILE NUMBER(S):	289/08
COUNSEL:	R Foord (Plaintiff) D Hooke SC (Defendant)
SOLICITORS:	Kingston Swift Lawyers (Plaintiff) Berry Buddle Wilkins Lawyers (Defendant)

JUDGMENT

1 On Thursday evening, 22 September 2005, Evelyn Joyce Taylor went with her grandson, Robert Taylor, to Orana Mall Shopping Centre in Dubbo to pick up an exercise bicycle from the lay-by arrangement maintained by the Big W department store operating within the centre.

2 They went first to the Woolworths supermarket where they purchased food items which they placed in a supermarket trolley.

3 In Big W the plaintiff was told by a shop assistant that her parcel was too large to take through the store and that she should collect it from the loading dock. The shop assistant gave the plaintiff directions that involved leaving the store and walking around the perimeter of shopping centre buildings to the defendant’s loading dock.

4 It was dark outside. The road approaching the loading dock was unlit. In particular, a spotlight that would have illuminated a speed hump in the road was not operating. The plaintiff said she did not see the speed hump. She tripped on it and fell. She heard a crack and she felt pain. She was unable to stand.

5 After some delay in securing assistance, two men came from the loading dock, one of them Trent Ryan. He was a middle manager employed by the defendant. He was told by the plaintiff that she did not see the speed hump in the darkness and he responded, saying, “We need to get the lighting fixed.” This scenario was relied on by the plaintiff to claim negligence on the part of the defendant, the basis being as follows:

6 The defendant, Woolworths Limited, held a lease in which the Big W store operated. The defendant was the proprietor of the Big W business name. These facts were not in dispute, however, the lease governed the relationship between the defendant and the shopping centre proprietor in respect of the premises occupied by Big W as delineated on a site plan attached to the lease document.

7 The area of the premises did not include the area in which the speed hump was situated. The speed hump was situated in a part of the shopping centre that comprised common areas. The terms of the lease imposed upon the defendant obligations of care, control and management of the areas that were the subject of the lease. It imposed no obligations for the common areas or any other part of the shopping centre that was not the subject of the lease.

8 Clause 10 of the lease imposed significant obligations on the lessor, among them clause 10.6 relating to maintenance of common areas that provided: “The landlord must use its best endeavours to keep the common areas in good repair, clean and adequately lit.”

9 Clause 10.7, relating to management of the centre, provided: “The landlord must conduct, manage and operate the centre in a first class and efficient manner at all times.”

10 Common areas were defined by the lease as areas intended for common use, including parking areas, driveways, walkways, docks, stairs, escalators, lifts and toilets.

11 Similarly, lease registered number 313530W of the Woolworths supermarket premises imposed upon the lessor obligations of maintenance and repair of common areas. Clause 8(d) of that lease provided that common areas were to be, at all times, subject to the control and management of the lessor. It expressly stated: “The lessor shall have the right to construct, maintain and operate lighting facilities and to police same from time to time.”

12 It was clear, therefore, that the defendant could not be held liable to the plaintiff on the basis that it was the occupier of the common areas of the Orana Mall Shopping Centre or that it had any form of control over the lighting of those areas.

13 This presented a problem to the plaintiff, who argued her case on the basis that, although the defendant had no control over the area where the plaintiff fell or its lighting, it had control over the system it implemented in the collection of goods from the loading dock. It argued that the system was defective because it required the plaintiff to walk through an area that was inadequately lit, either because there was insufficient lighting or because such lighting as was installed was not operating. There was no expert evidence to suggest that the lighting, if operating, was inadequate.

14 There were substantial difficulties with this argument. There was no evidence that the defendant was aware that the lighting in the area where the plaintiff fell was not operating.

15 The statement by Mr Ryan was relied upon by the plaintiff as some form of admission of responsibility by the defendant for the condition of the lighting. I do not accept this proposition.

16 Given the provisions of the leases, at most it was a statement to the effect that it would be necessary to alert the lessor to the need to attend to the lighting. Mr Ryan stated that the defendant was aware that the lights failed from time to time and that when they failed the matter was taken up with centre management. This evidence could not be construed as indicating that the defendant, notwithstanding the provisions of the lease, assumed responsibility for lighting of the common areas or that the defendant was aware that the light over the speed hump was inoperative at the time of the plaintiff’s fall.

17 Another difficulty was that, in my view, it would normally be expected that a person collecting a large package from the loading dock would travel by motor vehicle rather than on foot. The plaintiff and her grandson travelled to the shopping centre by bus. Their intention was to place the package in the supermarket trolley and then return to the plaintiff’s home with the package and their shopping by taxi. The plaintiff said she did not tell the shop assistant that she would be walking to the loading dock.

18 In the absence of evidence of a history of injury or incidents resulting from inoperative lighting, or that the defendant was aware that the light was not working, or that the defendant was aware that the plaintiff was on foot, there was, in my view, no warrant to provide a warning of any danger or trap.

19 Even assuming that the defendant owed a duty of care to take precautions against the risk of injury to customers using common areas of the shopping centre, that obligation could only extend to the use of a standard of care that a reasonable person might adopt to deal with foreseeable risk.

20 In this case the risk was dealt with through the terms of the lease in allocating responsibility for it to the lessor under the contract comprised by the lease. Given its lack of control over common areas, I regarded this arrangement as a reasonable response by the defendant to the risks presented by inadequate or failed lighting.

21 The plaintiff relied upon the High Court’s decision in Thompson v Woolworths (Queensland) Pty Limited 221 CLR 234 in which judgment was entered for a plaintiff on the basis that she was required to make deliveries to the defendant in accordance with a system and with procedures established by the defendant. It was held that the system was defective. The court also noted that the relationship between the parties involving a mutual commercial purpose was important.

22 In this case I acknowledge that there was a commercial purpose in the sale and purchase of goods and that the system for collection of bulky goods was nominated by the defendant. However, the essential difference was that the cause of the plaintiff’s injury was not the system itself but a failure of the lighting in an area of the shopping centre that was not occupied by the defendant and over which it exercised no control.

23 I do not therefore think that this decision assisted the plaintiff.

24 The result is that I find that there was no breach of any duty of care by the defendant to the plaintiff and there will therefore be a verdict for the defendant.

25 Dealing with the issue of damages in the event that this matter goes further, I note the following.

26 The crack that the plaintiff heard was a fracture in the greater tuberosity of her right humerus. She was taken to Dubbo Base Hospital, admitted and, after two days, surgery was performed to reduce and fix the fracture by the insertion of three screws. Those screws remain in place.

27 She was discharged in a sling for her right arm on 25 September 2005. She attended for physiotherapy through the hospital and was provided with exercises that she said she continued to perform at home. She said that if she did not perform these exercises her shoulder had a tendency to seize up.

28 The plaintiff said that her shoulder improved after discharge from the hospital but she remained with substantial pain and discomfort, limiting in particular her capacity to perform her housework and disturbing her sleep. The plaintiff insisted that she preferred to manage her symptoms by limiting her activity rather than taking pain killing medication. She stated repeatedly that she was not prepared to overdo things.

29 The plaintiff relied upon a report of Dr Giblin who said that the plaintiff’s condition was stable and that her symptoms were likely to continue indefinitely with exacerbations of pain from time to time. Dr Giblin reported that the plaintiff was permanently unfit for use of her right arm for heavy lifting at or above shoulder height, or for continuous heavy movements or those involving repeated impact.

30 Dr Pillemer expressed doubts concerning the extent to which the plaintiff’s complaints were genuine. He noted discrepancies in the range of movement demonstrated to him on examination and those noted by Dr Giblin. He also noted observations of a greater range of movement on some occasions during his examination of the plaintiff than at others.

31 Dr Pillemer said that the type of fracture suffered by the plaintiff normally healed with minimal restriction in range of movement and he said he thought that the plaintiff maximised significantly her claimed level of disability.

32 The plaintiff was questioned in cross-examination about her ongoing levels of pain and restriction. Her attention was pointed to medical records indicating that she told the physiotherapist that she was recovering well with exercises and that she made no complaint to her general practitioner concerning her right shoulder since 2008. She was pointed to medical records indicating that since 2005 the plaintiff has developed other health conditions and in particular to notes of complaints of significant back pain.

33 It was also noted that prior to the accident the plaintiff suffered an injury to her left foot that required surgery in 2003 and subsequent surgery to remove metalware. The plaintiff agreed that she received a disability support pension because she had been unable to work following the injury to her foot.

34 In assessing the plaintiff’s non-economic loss, notwithstanding the comments of Dr Pillemer and the matters raised by the defendant, I accept that it was probable that the plaintiff was left with some restriction of movement, particularly above the shoulder. I agreed that there appeared to be a degree of maximisation by the plaintiff of her symptoms. However, she suffered a serious fracture that required surgery and she remained with three screws in her right shoulder.

35 I therefore accepted that she has a moderate level of ongoing symptoms and I assessed her non-economic loss at 28 per cent of a worst case.

36 The plaintiff did not press the claim for care provided on a gratuitous basis to the date of the hearing. She stated, however, that were she funded she would arrange for some of that housework to be undertaken on a commercial basis.

37 The plaintiff’s household comprised her husband and two grandsons who were placed with the couple by court order. Robert is now seventeen, his brother is younger. It was claimed that the plaintiff did all of the housework inside the home prior to the accident and that her husband attended to the outside of the premises. The plaintiff is fifty-eight years old, her husband is fifty-nine and not in good health.

38 The plaintiff claimed a substantial restriction of her capacity for housework which was now done mostly by her husband. The activities that she now finds that she cannot do included vacuum cleaning, mopping, cleaning the bathroom, hanging out washing as well as cutting up vegetables and other cooking, bed making and dusting.

39 I accepted that the plaintiff was probably incapacitated for heavier aspects of her housework. I was not persuaded that she was incapable of lighter aspects of her work.

40 The defendant noted that since her injury the plaintiff has received, through a local Aboriginal service, home care assistance for four hours a week for a nominal fee. The plaintiff said that she had discontinued this service because she was not happy with frequent changes in staff.

41 The defendant argued that this service remained available to her and therefore I should impose no responsibility on the defendant for the cost of providing for the need generated by her shoulder injury. I did not accept that the defendant could avoid its obligations by requiring the plaintiff to rely on a publicly funded service. However, I accepted that the need generated by this injury was less than that claimed because of the plaintiff’s other problems, in particular those affecting her foot and her back and because I considered that she over-stated the extent of her difficulties.

42 In my view, the need generated by the injury to the plaintiff’s right shoulder could be adequately dealt with by the provision of two hours a week of commercially funded domestic care.

43 Past out-of-pocket expenses were agreed in the sum of $2000. No claim was made for future medical expenses.

44 The result, however, was that the decision is made in favour of the defendant.

45 The orders that I make are as follows:

(1) Verdict for the defendant.
(2) The plaintiff is to pay the defendant’s costs of the proceedings on an ordinary basis up to and including 2 March 2009 and on an indemnity basis thereafter.
(3) The exhibits are returned.

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