Woolworths (SA) Pty Ltd v Cauchi

WOOLWORTHS (SA) PTY LTD v CAUCHI
[2001] SASC 48

Magistrates Appeal (Civil)

OLSSON J

Introduction

I have before me an appeal and a cross appeal against the decision of a stipendiary magistrate sitting in the Civil Division of the Magistrates Court. Those appeals raise a variety of issues, to which I shall come in detail in due course.
I will first address the historical facts giving rise to the relevant proceedings. I do so having regard to the express finding of the learned magistrate that the respondent (who was plaintiff at first instance) presented as a reliable witness. The present appeals do not seek to impugn that finding, nor do they challenge the salient findings of fact expressed in reasons published by the learned magistrate. Indeed much of the respondent’s evidence was not in dispute.

The narrative facts

At all material times the appellant was the owner/occupier and operater of a typical “Woolworths” store at the Unley Shopping Centre on Unley Road. This contained within it a section in which fruit and vegetables were displayed for sale.
The respondent is a married woman of Maltese extraction. She was 61 years of age as at 1997. She speaks passable, but not perfect, English.
On a day which the learned magistrate (by inference) found must have been shortly prior to 23 February 1997, the respondent travelled to the store on the Unley Community Bus to do her shopping. She probably arrived there at or soon after 12.30 pm. Her memory was that it is likely that she attended on a Thursday, because it was pension day.
Whilst in the store the respondent walked into the fruit and vegetable section. She was carrying various items which she had already selected for purchase. Having obtained some fruit and vegetables she moved to an area in which loose bunches of grapes were on display. As she moved forward to pick up some bunches of grapes she stepped on a grape or grapes on the floor, slipped, and fell forward on both knees.
It seems clear that a young male employee of the appellant, named Marra, who is no longer on the appellant’s staff, assisted the respondent back onto her feet. Marra was called as a witness on subpoena. He agreed that he had been an assistant in the fruit and vegetable section. He professed to have no present recollection of the incident the subject of these proceedings.
The witness Swanson, also an employee of the appellant at the time of the respondent’s accident, testified that she recognised the respondent as a person who had encountered her in the Unley store on a date and at a time which she does not now recollect. She verified that the respondent told her that she had slipped on something on the floor “at [the] fruit and veg” and fallen. I infer that this conversation occurred on the day of and shortly after the incident.
Mention was made of the respondent’s knee and shoulder. Swanson said that she had advised the respondent that the latter ought to report it at the service desk. It was Swanson’s evidence that she was transferred to another store at about the beginning of March 1997, so that the incident must have been prior to then.
There is no evidence that the respondent did notify the service desk, as advised by Swanson.
At trial a good deal of evidence focused on the presence of mats on the floor in the vicinity of the grape display and what inspection and “housekeeping” systems were in place to ensure that spillages were detected and cleaned up in a timely manner.
At the end of the day the learned magistrate made these salient findings:-

.the version of the respondent as to what had transpired was not controverted;
.although there were some mats on the floor, it was probable that the respondent slipped on a grape or grapes which had fallen on a tiled section of the floor as she approached the display;
.despite evidence led by the appellant concerning a floor cleaning system, the so-called “house cleaning log” indicated that, more probably than not, the system was honoured more in breach than the observance. As to this the learned magistrate had this to say:-
“In regard to the matter of the defendants cleaning roster I accept Mr Coppola’s submission that in light of the plaintiffs vagueness about the time of the incident it is impossible for the defendant to call witnesses about cleaning schedules on a particular day. All that can be done is for the witnesses to explain what the routine was during the several months that may be relevant to the incident. On the other hand Mr Stathopoulas points out that whatever the house keeping log was supposed to reflect in theory, its incompleteness reflected a system which was far from the vigilance the log was supposed to convey. Although the evidence suggested that there were supposed to be seven inspections of the floor per day and that inspections were to be logged every hour, on some days only one inspection took place and on other days there is no record of any inspections at all.
Thus based on the defendants own evidence the defendant cannot say that they had a system that was properly implemented and therefore a reasonable inference that can be drawn is that the lack of proper implementation was causative of the fall.
It seems that once the plaintiff has successfully raised the fact that she fell after slipping on a grape on the tiled part of the floor it becomes difficult for the defendant to challenge that fact when it cannot produce specific evidence of what was done on a particular occasion to avoid such an incident. Obviously in this case there is no evidence as to how long the grape may have been on the floor. Nevertheless I cannot ignore the fact that whatever the defence witnesses said about the cleaning system, the facts reflected in the house keeping log is consistent with an indifferent cleaning routine. When I conflate the problem the defendant has with its housekeeping log book; the admission of Mr Belcher, store manager, that there were gaps between the rubber mats and the evidence of the plaintiff that she was attracted by the grape display and was reaching towards that display when she stepped (from which I must infer that she was not responsible for the grape being on the floor) I am satisfied that the plaintiff has established the defendant’s liability. Irrespective of the defendant’s lack of opportunity to challenge the plaintiff’s claim by establishing particulars of cleaning routines the inference to be drawn from the defendant’s incomplete records must reflect negatively in regard to the defendants actual practise.”

Mr Coppola, of counsel for the appellant, sought to challenge the findings made by the learned magistrate concerning the housekeeping system. He declaimed that positive evidence had been given by two of the defence witnesses to the effect that regular floor inspections and cleansing had been carried out and that they had not been adversely cross examined about that. Thus the principle adverted to in Browne v Dunn (1893) 6 R 67 should have been invoked against the respondent.
I do not consider that there is any substance in this criticism.
In the first place the witness Belcher, as store manager, was extensively cross examined concerning the housekeeping logs and the obvious deficits between their contents, by way of contrast with the evidence which he had given concerning regular floor inspections and cleansing. The obvious and only reasonable inference which arose was that his evidence-in-chief was seriously under challenge. The same comment may be made concerning the evidence of the witness Morelli, the service manager, who, in fact, recognised the respondent as a regular customer at the store.
Perhaps more importantly, this was not a Browne v Dunn situation at all. That authority postulates a requirement that, if it is proposed to call positive evidence by way of contradiction of that led by the other side, then it is incumbent on the person leading that evidence first to put the substance of the case sought to be established by the evidence in contradiction in cross examination of the primary witnesses in chief, to afford the latter a proper opportunity of dealing with the issue by way of explanation or to allow the other party an opportunity of calling evidence to deal with what is to be asserted.
In the instant case what occurred was that, in the course of her evidence, the respondent testified that she had regularly shopped at the appellant’s store. She had, on previous occasions seen vegetable matter on the floor but had never seen anyone sweeping it up, save that she did say (T30) “A. When I go early I did one day, finish the vegetables they do sweep everything but otherwise I never seen them sweep”. She elaborated a little on this. I took her to be conveying that, only on one occasion did she see sweeping up and that was when the fruit and vegetable display had first been set up for the day and the staff tidied up after this had been completed early in the morning.
Quite clearly the evidence of Morelli and Belcher was called to rebut the inferences sought to be drawn from that evidence. No attempt was made to subsequently lead evidence in response to that given by them.
At the end of the day the learned magistrate was called upon to test the assertions of Morelli and Belcher against both the evidence of the respondent and the housekeeping logs maintained by the appellant (exhibit D3). It is interesting to note that each sheet of the log has endorsed on it notes to the effect that the record is an important document which must be kept accurately for the purposes of accident control and investigation; that all areas open to the public are to be checked both immediately before opening and also six times daily on a roster basis; and that the appropriate details must be entered in the log when a check is completed. The log envisages checking and then sweeping and/or mopping as appropriate.
Belcher conceded that the entries in the log indicated, on the face of them, that the stipulated requirements were not recorded as having been met. The entries suggest that only sporadic checks were made - sometimes only one per day. The sheets produced suggest that, surprisingly, the area checked least frequently was the “Produce Department”. One page of the log has been initialled, but was completely blank.
Mr Belcher asserted that frequent checks were in fact made and that the content of the logs simply reflected what was, in effect, sloppy record keeping.
It is scarcely surprising that, in the circumstances, the learned magistrate did not accept the evidence of Belcher and Morelli on this point, and, instead, preferred the written record maintained, on a contemporaneous, day to day basis, by the employees who had the direct responsibility for performing the checks. Further, a number of the sheets were initialled at the end of the week by Belcher himself. One poses the question as to why, if he considered the sheets to be grossly at odds with the actual reality, he was prepared simply to initial them and do nothing to ensure their future accuracy.
The learned magistrate was well justified in viewing the evidence relied upon by Mr Coppola with great scepticism.
Following her fall the respondent had ongoing problems with her right knee in particular. She did not immediately seek medical treatment, because she assumed that her right knee discomfort would take some time to resolve. She was a diabetic and had been told that, with such a condition, injuries take longer to heal.
Eventually, on 8 July 1997 she consulted her general practitioner Dr Cassar. She then thought that the incident had been about two months earlier, but was obviously mistaken as to this.
Dr Cassar arranged for radiology of the knee and a subsequent bone scan. This indicated possible meniscal damage. Anti-inflammatory medication and physiotherapy were prescribed, but the discomfort did not abate.
On 23 July 1997 she was seen by Dr Krishnan, an Orthopaedic Surgeon. He diagnosed a meniscal tear in the right knee.
By letter dated 25 July (which was prepared for her by her physiotherapist to whom she was then resorting for treatment for her knee), but delivered on 28 July, the appellant formally advised the appellant of her injury and sought payment of her medical expenses. A memorandum dated 29 July 1997, written by the witness Belcher contains the statement “The first I knew of the claim was when the customer approached me a week or so ago and said she had an accident and didn’t want to involve lawyers and wanted me to pay her accounts”. The appellant did not accede to her request.
On 31 July Dr Krishnan performed an arthroscopy on the respondent’s right knee. He excised a tear of the posterior horn of the medial meniscus.
The plaintiff suffered a recurrence of knee pain several months later. She was seen by Dr Krishnan on 25 November 1997. He decided to review her after the lapse of a further three months.
Her pain persisted. Dr Krishnan saw the appellant again on 31 March 1998 and 29 September of that year. On 17 November 1998 the appellant again underwent arthroscopy. There was evidence of further tearing and of peripheral detachment. A meniscectomy was performed.
The appellant’s problems continued. She was reviewed by Dr Krishnan on 30 November 1998 and 19 January 1999. On 18 May 1999 he admitted her to hospital for yet another arthroscopy and debrided a further meniscal tear.
Dr Krishnan again saw the appellant on 25 May 1999 and, on 22 July 1999, reported to the respondent’s solicitors that she had sustained a 10% loss of function of her right knee.
The appellant’s solicitors issued the summons in this matter against the appellant on 23 February 2000. It was the subsequent assertion of the appellant’s solicitors, on 20 March 2000, that, bearing in mind the probable date of the injury, the three year limitation period prescribed by s 36 of the Limitation of Actions Act, 1936 (“the Limitation Act”) had almost certainly expired.
I pause, at this juncture, to comment that such a situation was, by no means, self-evident. If the accident did occur between 23 and 27 February 1997 (ie immediately prior to Swanson’s transfer on the latter date) and it was on a Thursday, then the date of it would, in fact, have been 27 February. The other alternative postulated was a Tuesday, which, in that period, would have been 25 February. Whichever was the correct day then, if the incident occurred in the week prior to Swanson’s departure, the summons would have been issued within time. However, the learned magistrate was unable, on the evidence, to determine that the accident did positively occur during the above dates.
Be that as it may, the respondent’s solicitors, apparently ex abundante cautela, sought leave to amend the particulars of claim, so as to enliven the discretion of the Court pursuant to s 48 of the Limitation Act. That leave was granted. On 21 June 2000 the particulars of claim were, inter alia, amended by the addition of an endorsement in the following terms:-

“EXTENSION OF TIME
16.... If the day is identified as being prior to February 1997 the Plaintiff seeks an extension of time within which to commence this action pursuant to S 48 of the Limitations of Action Act 1936.
AThis action was commenced within 12 months after facts material to the plaintiff’s case were ascertained by her. The material facts are as follows:
16.1The Plaintiff learned for the first time on 12 August 1999 the existence of Dr Jegan Krishman’s report dated 22 July 1999;
16.2The plaintiff learned for the first time on 12 August 1999 that in Dr Krishnan’s opinion she had suffered a number of meniscal tears to her right knee and that 5% of the 10% residual disability in her knee as a result of the meniscal tears was attributable to the incident.
16.3The Defendant will not be prejudiced by an extension of time as it has been on notice about the claim since 28 July 1997.
16.4The Plaintiff will suffer loss and hardship if she is not permitted to proceed, and says that it is just in all the circumstances of the case to grant an extension of time.”

The decision appealed against

The learned magistrate found himself unable, on the evidence, to find precisely when the relevant incident did occur. The respondent’s evidence on the topic was vague, there were no records of the appellant which threw light on the situation and nothing specific to verify that the incident was, in fact, in the week leading up to Swanson’s transfer. Although he was less than specific on the point, the learned magistrate seems to have proceeded on the footing that the appellant’s accident did antedate 23 February 1997 and probably did occur some time earlier during the February. In that event the provisions of s 48(4) of the Limitation Act were applicable ie it was incumbent on the respondent to endorse on the particulars of claim a statement that she sought an extension of time pursuant to that statute.
A considerable debate arose as to whether the amendment made was effective to cure any initial deficiency, or whether it could be, or should have been, backdated and whether, in any event, it retrospectively cured the non compliance with s 48(4). The learned magistrate took the view that the effect of the amendment was to backdate the substance of it to the date on which the particulars of claim were originally filed. He seems to have based his reasoning as to this on Brook v The Flinders University of South Australia (1987-1988) 47 SASR 119. I do not read that case as being authority for any such proposition, because it focused on the very specific provisions of Rule 53.03 of the Supreme Court Rules.
In my opinion it is unnecessary to dwell on this question. The real issue to be addressed is as to the proper statutory interpretation of s 48(4) of the Limitations of Action Act, to which I shall return in due course.
The learned magistrate noted that the merits of a s 48 extension application had been a live issue and was thoroughly canvassed at trial. He observed that it was conceded that the facts fell within the ambit of s 48(3)(b)(i) of the Limitation Act and concluded that it was proper to grant the extension sought.
In addressing the respondent’s case on the merits the learned magistrate, having arrived at the conclusions as to the appellant’s system to safeguard against slipping incidents which I have already cited above, unsurprisingly concluded that the respondent had established negligence against it. The risk of danger arising from fruit or vegetable material falling to the floor was ever present, the likelihood of injury due to a fall was obvious, as was the means of minimising the possibility of such a situation. A failure, effectively, to implement steps to do so plainly caused the respondent’s injury.
No doubt the appellant had erected a theoretically appropriate “housekeeping” system, but the learned magistrate was satisfied that, in practice, it had not been adhered to.
The learned magistrate summarily rejected the appellant’s contention that the respondent had been guilty of contributory negligence. As to this he said:-
“The risk created by a grape on the floor is not one that the plaintiff could reasonably be expected to notice or avoid. She was a shopper carrying items and was attracted to the display. She walked towards the display and slipped.”
In assessing damages the learned magistrate did not, in his reasons, descend to a great deal of definitive detail in reviewing the material before him.
He noted the assertion of the appellant that the various medical accounts tendered had not, formally, been proved as to relevance or proper quantum. He then summarised his views in these terms:-
“In my view the accounts are properly admissible under the Evidence Act. I accept that these accounts are the responsibility of the plaintiff and have either been paid or will be paid by her or through her medical benefits. I am unable to conclude that any of the accounts are unreasonable. I note that some accounts have been accepted and paid by Medicare. I presume that the accounts complied with Mediocre [sic] guidelines and infer that they have been accepted as reasonable. In the absence of any specific challenge to the account I am prepared to accept them as relating directly to the injury the plaintiff sustained. As such she is entitled to be compensated for those amounts. I do, however, consider that there is one small element of degeneration over and above the specific injury and I shall fix the amount of special damages shortly.”

A perusal of the transcript relating to the trial confirms that the schedule of claimed medical expenses and supporting documentation (exhibit P4) was, indeed, tendered and admitted without objection. Moreover, the respondent was not cross examined in a fashion which ever put the propriety of any of the items claimed in issue, either as to relevance or quantum, despite an assertion by Mr Coppola that he had somehow reserved his right to challenge items of special damage.
As to this Mr Coppola sought to contend that the documentation comprising exhibit P4 had only been put to him on the morning of the trial and that he had, previously, not had an opportunity of considering and seeking instructions concerning it.
With all due respect, that cannot be correct. As Mr Stathopoulos, of counsel for the respondent pointed out, save for a few, then very recently incurred, expenses, the schedule setting out the bulk of the items had been attached to the “Personal Injuries Particulars” filed and delivered in the action on 3 July 2000 - over four months prior to trial.
The learned magistrate accepted the material comprising exhibit P4 at face value, but indicated that he proposed to make some general abatement of special damages to allow for “one small element of degeneration over and above the specific injury”. In the event he discounted special damages by 10% from $11,409.95 to $10,268.95.
He finally dealt with general damages for pain and suffering as under:-
“In regard to the award for pain and suffering I am mindful that the plaintiff has undergone three medical procedures that have largely been due to her fall. She has an injury of some significance and continues to suffer disability. She has described how the accident has impacted upon her life and I accept that it has made her life far less independent than prior to her accident.
There is no component for future economic loss or for future medical expenses.
I accept Dr Krishnan’s evidence as reflected in his reports and his assessment of disability. Mr Stathopoulas submits that although the report indicates a permanent disability of 5% as a direct result of the original meniscus tear he urges me to accept that the 10% overall disability is as a direct result of the original fall which rendered the plaintiff’s knee more susceptible to degeneration. Mr Coppola asks me to be cautious about such a conclusion since Mr Krishnan only said that it was ‘quite possible’ that the second and third operations related to the fall and there is no certainty that the whole of the disability should be attributed to the fall.
In such matters it is difficult to attribute a precise percentage to the subsequent residual degenerative changes in the meniscus cause by the fall. Dr Krishnan could only suggest that it was quite possibly due to the fall. The plaintiff has suffered no restrictions or pain to her left knee, this Mr Stathopoulas suggests is a reliable indication that no degeneration would have developed had the plaintiff not suffered the initial injury. In the end I am persuaded that the degeneration is largely due to the original injury and I attribute 1% only to naturally occurring degeneration that may have caused the plaintiff problems independent of the fall. Thus I find that the plaintiff has suffered a 9% loss of function to her right knee directly relating to the fall she sustained whilst shopping at Woolworths either in February 1997 or at some time prior to that time up to the beginning of November 1996 (from when the evidence reflects loose grapes would first have been on display during that summer).”
On that basis he assessed damages at $12,000 for a 10% disability and then abated that sum to $10,800.

Appeal Issues

The appellant seeks to agitate four separate grounds of appeal. Two of these focus on the provisions of the Limitation Act.
First, it is pleaded that the learned magistrate erred in law “in permitting the respondent’s action to proceed without a specific order to endorse the proceedings pursuant to Section 48(4) of the Limitations of Actions Act 1936”.
This plea is poorly expressed, because it does not truly reflect the point which was sought to be made. The actual submission made on behalf of the appellant was that the learned magistrate ought not to have permitted the appellant to invoke s 48(2) of the Limitation Act at all. There was no order backdating the operation of the amendment endorsing the particulars of claim in manner envisaged by s 48(4) of that Act, nor should (or could) such an order have been made. I took counsel for the appellant, in effect, to contend that, because s 48(4) mandatorily requires the relevant endorsement on the proceedings when instituted, then a later endorsement does not and cannot enliven the s 48(2) discretion. The action was, he said, void ab initio, for non compliance with the statute. The proceedings were, therefore, statute barred.
In my opinion this submission overlooks the real, fundamental issue involved.
Subsection 48(4) is couched in these terms:-
“(4) Where an extension of time is sought pursuant to this section in respect of the commencement of an action, the action may be instituted in the normal manner, but the process by which it is instituted must be endorsed with a statement to the effect that the plaintiff seeks an extension of time pursuant to this section.”
A question at once arises as to the proper statutory construction to be applied to that provision.
For some years it was considered appropriate, in approaching an issue such as this, to pose the question as to whether, as a matter of proper statutory construction, the provision in question ought to be considered “directory” or “mandatory’. If the former, non compliance was not necessarily fatal to validity of steps taken. If the latter, non compliance rendered any relevant step taken void.
However, as Debelle J pointed out in Jim Stojan Pty Ltd v Jenny & Daughters Pty Ltd (1994) 179 LSJS 164, such a characterisation has, in later times, been abandoned in favour of the formulations expressed in Tasker & Ors v Fullwood & Ors [1978] 1 NSWLR 20 at 23-24.
In the latter case, after adverting to the relevant authorities, the New South Wales Court of Appeal said:-
“From these sources we take the following propositions:
(1)... The problem is to be solved in the process of construing the relevant statute. Little, if any, assistance, will be derived from the terms of other statutes or any supposed judicial classification of them by reference to subject matter.
(2)The task of construction is to determine whether the legislature intended that a failure to comply with the stipulated requirements would invalidate the act done, or whether the validity of the act would be preserved notwithstanding non-compliance: the Franklins Stores Pty Ltd case [1977] 2 NSWLR 955, at pp 963 et seq.
(3)... The only true guide to the statutory intention is to be found in the language of the relevant provision and the scope and object of the whole statute: Hatton v Beaumont [1977] 2 NSWLR 211, at p 220.
(4)The intention being sought is the effect upon the validity of the act in question, having regard to the nature of the precondition, its place in the legislative scheme and the extent of the failure to observe its requirement: Victoria v The Commonwealth (1975) 134 CLR 81, at pp 179, 180.
(5)... It can mislead if one substitutes for the question thus posed an investigation as to whether the statute is mandatory or directory in its terms. It is an invitation to error, not only because the true inquiry will thereby be sidetracked, but also because these descriptions have been used with varying significations.
(6)In particular, it is wrong to say that, if a statute is couched in directory terms, the act will be invalid, unless substantial performance is demonstrated: the Franklins Stores Pty Ltd case [1977] 2 NSWLR 955, at pp 965 et seq. A statute which, on its proper construction, does not nullify the act in question, even for total non-observance of the stipulation, is also described as directory in its terms: Victoria v The Commonwealth (1975) 134 CLR 81, at pp 118, 162, 179, 180.”
When s 48 is examined from those perspectives it readily becomes apparent that the primary purpose of s 48(4) is to ensure that, when an initiating process is served upon a defendant, the latter is put on notice that the claim is belated and that the appropriate discretionary dispensation will be sought. The defendant is thereby enabled to prepare to suitable response, after proper investigation of the plaintiff’s assertions.
In other words the primary thrust is of a procedural nature. It is difficult to perceive how it can logically be argued that strict compliance with the requirements of s 48(4) was intended by the legislature to constitute a precondition of the fundamental validity of the initiation of the relevant proceedings.
In the instant case there can be no suggestion that the amendment of the proceedings to include a s 48(4) type endorsement after issue was significantly prejudicial to the appellant. The issue is not whether the amendment is to be antedated in effect to, or operated from, the time of commencement of the action. Rather it is whether, notwithstanding the initial omission of the endorsement, the proceedings were nevertheless validly commenced; and whether the subsequent amendment and agitation of the section 48 issue on the merits seriously prejudiced the appellant. Both of those questions must, inevitably, be resolved in favour of the respondent.
The second complaint advanced on behalf of the appellant is that the learned magistrate fell into error by simply finding, as was conceded, that the respondent ascertained a material fact as envisaged by s 48(3)(b)(i) of the Limitation Act and failed to then direct his mind as to whether, in all the circumstances, it was just to exercise his discretion pursuant to the section. It is also argued that, in any event, the discretion ought not to have been exercised in favour of the respondent because of the prejudice caused to the appellant by reason of what was said to have been the impossibility of procuring and leading evidence as to the cleaning system employed in the store, due to the lapse of time which had occurred.
There are two answers to those propositions.
The first is that I do not accept that the learned magistrate failed to direct his mind to all aspects to be considered.
True it is that he was somewhat economic in the manner in which he expressed himself. However, it is implicit in his approach that he did so when he opined that the respondent “qualified” for an extension. That was simply a shorthand expression. I do not think that, in using it, he merely indicated that a relevant material fact had been ascertained.
It is not to be forgotten that, at latest, the manager of the appellant’s store was aware that the respondent was seeking to make some sort of claim in respect of her fall by early to mid July 1997, at a point in time when the evidentiary trail was still relatively fresh. There was ample opportunity to investigate the matter at that point (when the incident was brought to the attention of the appellant’s insurance officer) and one would have thought that sheer prudence would have indicated that such an investigation ought to have been carried out. There is no evidence to suggest that it was.
That failure to capture the necessary information would have precipitated exactly the same situation for the appellant had the proceedings been commenced within time, only a week or so prior to when they were in fact commenced. There is no suggestion that there was any relevant change in circumstances between the expiry of the limitation period and the few weeks thereafter.
If the appellant had problems they were essentially of its own making. By way of contrast, the exercise of discretion adversely to the respondent would have denied her any remedy at all, given that she had no appreciation of the real extent and impact of her injury until she was advised, on 13 August 1999, of Dr Krishnan’s assessment.
It was inevitable that the discretion would be exercised as it was.
The two grounds based on the Limitation Act necessarily fail.
Next, the appellant complains that the learned magistrate erred in law in holding that, on the evidence, negligence had been established against it.
The pith and substance of the appellant’s criticism, as I understand its submission, is that the general evidence of its cleaning system “was the best [that] the [appellant] could do in the circumstances where the [respondent] could not identify the [precise] day or time of the injury”. It was said that it is not to the point that the maintenance of the Branch Weekly Housekeeping Log left a great deal to be desired. The question was whether, in all of the circumstances, the appellant discharged the duty of care that it owed to the plaintiff. In any event, it was said, the learned magistrate posed the wrong test, when he asked himself whether the defendant had done “all that was reasonably possible” to avoid the relevant incident.
These contentions need to be reviewed against the factual baseline that the unchallenged findings of the learned magistrate were that:-

(a)the respondent slipped and fell as a result of treading on a grape or grapes which had somehow fallen from the display to the floor;
(b)it was not unreasonable or unexpected that she failed to see the presence of the grape or grapes - she was attracted to the display and focusing on it whilst carrying other parcels; and
(c)(at least by implication) the presence of potentially slippery vegetable matter on the floor in such a location was an ever present possibility which demanded the existence and implementation of an effective system of inspection and cleaning to avoid danger to customers.

In giving evidence the appellant’s witness Belcher conceded that grapes were notorious for berries falling off on to the floor. He testified as to the steps taken to endeavour to avoid the resultant danger of slipping, by placement of loose mats on the floor and the erection of a proper system of housekeeping designed to ensure regular inspection and cleansing of the floors at least seven times per day, as earlier recited.
Bearing in mind the type of reasoning adverted to by me in Drakos v Woolworths (SA) Ltd (1991) 56 SASR 431 (“Drakos”) at 448-449, had the evidence indicated that the appellant’s system was properly implemented in practice, it may well be that the respondent’s claim would necessarily have failed.
However, as the learned magistrate pointed out, the real gravamen of the respondent’s case was that the evidence plainly indicated that, on the balance of probabilities, the system was, in practice, neither adequately supervised nor actually carried into effect. Having regard to the state of the housekeeping log, the inferences drawn by the learned magistrate as to the lack of actual implementation of any effective system of inspection and cleansing over the relevant period of time were well nigh inevitable. The oral evidence to the contrary, given as it was, by supervisors rather than those who were actually responsible for the work, was far from suasive.
There can be no doubt that the learned magistrate had well in mind the issues identified in Drakos which had to be addressed and he did address them. I can see no basis for impugning either his reasoning or ultimate conclusion as to the appellant’s negligence. True it is that he may have expressed himself in a somewhat loose manner. However, the basis of his reasoning is obvious and, on the facts as found, his conclusion was inevitable.
Finally, the appellant contended that the learned magistrate erred in law “in allowing that the respondent be entitled to Special Damages on the admission of various medical accounts without calling the said [sic] medical providers to establish that the factual matter is reasonable”.
This ground of appeal is somewhat curiously expressed. However, the essential thrust of the appellant’s complaint was that exhibit P4 did not constitute evidence of the treatment actually received, the necessity for such treatment and the reasonableness of the charges made.
The appellant concedes that the actual accounts included in exhibit P4 were admissible pursuant to the Evidence Act. But it contends that the learned magistrate improperly reversed the onus of proof when he said “I am unable to conclude that any of the accounts are unreasonable”. It is also said that his presumption that the accounts complied with Medicare guidelines and were therefore unreasonable was not open; and that the medical practitioners should at least have been asked to verify the necessity for the number of treatments and the reasonableness of the charges made.
I consider that there is a total air of unreality about the appellant’s approach. It is to be remembered that exhibit P4 consists of a variety of documents.
The first is a simple schedule of asserted medical expenses, indicating dates, amounts, the provider of the service, the nature of the service and relevant amounts and payers. Much of that reproduces the material filed on 3 July 2000.
The second class of documents is a series of actual individual accounts or statements as rendered by the providers themselves.
The third comprises schedule summaries of benefits paid by Mutual Community and the Health Insurance Commission.
Certain of the accounts were, of course, supported by separate, detailed reports which disclosed the obvious relevance of them.
It must be stressed that all of this material was allowed in without objection on the part of counsel for the appellant, regardless of whether or not specific documents fell within the purview of the Evidence Act provisions. Clearly the schedules prepared by the solicitors for the respondent did not. The disputed “reservation” said to have been made by Mr Coppola at the time is largely meaningless. It could amount to no more than an intention to possibly comment on the weight to be attached to documentation allowed in.
During the evidentiary phase of the trial no substantial question was ever raised by counsel for the appellant as to any of the aspects now complained of, nor was any indication given that the respondent was to be put to formal proof of any of the items claimed. At best there was some reference to other medical conditions suffered by the respondent and some (somewhat equivocal) indication that she may have been receiving certain treatment for unrelated matters prior to seeing her doctor.
Bearing in mind the well established pre trial procedures in cases such as this and the normal practice as to mode of proof of special damages, it was well nigh preposterous that, at the address stage, it should be contended, for the first time, that the respondent had failed to prove her special damages. The course of the trial was such that counsel for the respondent was entitled to assume that there was no relevant issue as to special damages, especially as those now potentially in contention were scheduled and disclosed four months prior to trial.
The case flow management processes in all South Australian courts are specifically designed both to prevent “ambush” situations and also to ensure that time and costs are not wasted on matters not in dispute. The normal, well established, practice is for special damages to be proved informally in the manner here adopted, unless a defendant makes it clear, in a timely manner, that more formal proof is required.
In this case the appellant should be held to its trial conduct. The non objection to the admission of P4 in its entirety could only be taken as signalling a concession that quantum and relevance of the special damages claimed was conceded. No evidence to the contrary was ever elicited. The learned magistrate saw no reason to question any individual item - there was nothing to suggest that he should.

I summarily reject this ground of appeal.
It follows that there is no substance in any aspects of the appellant’s grounds of appeal. The appeal must, accordingly, be dismissed.

Cross Appeal Issues

The cross appeal raises three discrete issues, which I shall address in turn.
It is first complained that the learned magistrate erred in law and in fact in reducing the assessment of a 10% disability of the respondent’s right knee by 1% for naturally occurring degeneration.
In this regard the respondent points to the fact that the medical evidence established that she may have had some asymptomatic degeneration of her right knee prior to her fall, but that the fall was causative of the initial and successive subsequent tears of the meniscus and its detachment; and that, but for the fall, the respondent may not have developed any disability at all.
I agree that that was, indeed, the thrust of the medical evidence. I also agree that, if the appellant sought to contend that the respondent had a pre-injury condition which, absent any injury at all, would, in the normal course, have given rise to some level of disability in any event, then the appellant bore an evidential burden of adducing or eliciting evidence to establish that proposition. (Watts v Rake (1960) 108 CLR 158, Purkess v Crittenden (1965) 114 CLR 164 at 168.)
In examination-in-chief Dr Krishnan specifically testified that:-
Following the initial meniscus tear caused by the respondent’s fall, there were further tears in the same general area, which necessitated successive arthroscopies;
These developed because natural degenerative changes had rendered the meniscus intrinsically weak. Thus, following injury and despite the initial arthroscopy procedure, the injured meniscus “continues to tear and it’s part of that degenerative process from the injury”; and
“... the fact that she’s been asymptomatic prior to the injury she could have had a normal cartilage and the thing that’s against her is the age 60, so generally to 50 degenerative processes commences [sic], so its a combination of injury and degeneration. Most probably the injury contributed to acceleration of the degenerative process”. (T127)
It is important to bear in mind that Dr Krishnan was thereafter asked, “Had it not been for the original injury resulting in the tear of the meniscus those further tears may not have developed”. His response was “It’s possible”. Later again he expressed the firm opinion that it is probably correct that the subsequent tears may not have occurred had it not been for the original tear. (T129)
That was the sum total of his evidence on the point. He was never challenged as to that opinion in cross examination.
It follows then that, at the conclusion of the trial, the medical evidence indicated that, but for the injury, it may well have been the case that the respondent’s knee may have remained asymptomatic and she may, therefore, never have exhibited any disability. What in fact transpired was that the injury precipitated a more or less continuous, progressive tearing of the meniscus, due to the fact that degeneration due to age rendered her vulnerable to such a process on injury.
There was, therefore, no evidence upon which a finding could properly have been made that, absent the injury, she would, in time, have inevitably (or even probably) exhibited some level of disability in any event.
I do not read Dr Krishnan’s evidence as indicating any uncertainty on his part as to the cause of the respondent’s disability and the successive tears leading to it.
It seems to me that the learned magistrate may well have misconstrued the evidence of this witness, in the sense of concluding a much lesser degree of certainty about the doctor’s conclusions than was plainly apparent. I consider that the end conclusion arrived at was more a reflection of an argument advanced from the bar table than the actual evidence given.
I am, with respect, frankly unable to perceive any basis of evidence which could fairly be said to justify a conclusion that a 1% discount ought to be attributed to “naturally occurring degeneration that may have caused the plaintiff problems independent of the fall”. The evidence falls far short of suggesting a need for any substantial contingency discount on this score at all.
Next the respondent asserts error of law and fact in reducing her award of special damages by 10%.
I must confess that I frankly do not understand what process of reasoning led to the bald statement of the learned magistrate, “I allow 90% of the plaintiff’s special damages, namely $10,268.95”.
I take his reasons to indicate a conclusion that all of the items of special damages claimed were, in fact, incurred by the respondent in regard to the treatment of the respondent’s knee. The learned magistrate noted that none of the accounts had specifically been challenged. He said that he was “unable to conclude that any of the accounts are unreasonable”.
He commented:-
“In the absence of any specific challenge to the account I am prepared to accept them as relating directly to the injury the plaintiff sustained. As such she is entitled to be compensated for those amounts. I do, however, consider that there is one small element of degeneration over and above the specific injury and I shall fix the amount of special damages shortly.”
Presumably the 10% discount actually applied was intended to somehow relate to the “small element of degeneration” referred to.
With all due respect such an approach reflects an exercise in illogic.
Even if it be accepted that there was some risk of problems developing over time, in any event, due to natural processes of degeneration, there was simply no evidence that this had actually manifested itself as a reality, during the relevant timeframe, or that the respondent would not have required the treatment given her but for the injury suffered by her as a consequence of her fall. On the contrary, there was clear evidence that the medical treatments given were directly related to the injury and its sequelae. As to this Dr Krishnan’s testimony was unequivocal.
It follows that there was no evidentiary basis to support the 10% discount applied. This aspect of the cross appeal must be upheld.
There only remains for consideration the respondent’s contention that the assessment of general damages based on a starting point of $12,000 was manifestly inadequate.
The uncontroverted evidence establishes these factual situations:-

.the respondent suffered significant, albeit varying levels, of pain, discomfort and restriction of mobility and normal activity over a period from February 1997 to May 1999;
.it was necessary for her to endure the trauma, anxiety and discomfort associated with no less than three operations to her knee under anaesthetic and her subsequent rehabilitation from them;
.she has been left with a 10% permanent residual disability of her right knee;
.she now has an increased chance of developing early osteo-arthritic changes in the right knee as a consequence of the injury; and
.quite apart from the pain and general discomfort already endured, the respondent has sustained a substantial impairment of her social, domestic and recreational activities and will continue to experience some level of such impairment on an ongoing basis. She testified to ongoing problems of pain in the knee requiring analgesics, restriction in distance walking, problems in kneeling to do gardening or perform other domestic tasks and an inability to carry heavy weights due to a fear of her leg giving way.

It is not, of course, for this Court to engage in what might be described as a “fine tuning” exercise in relation to any assessment of damages. The question is as to whether, having regard to the injury sustained and its sequelae, the figure taken by the learned magistrate as his commencement point was manifestly inadequate. One difficulty in making that assessment is that the learned magistrate did not attempt to make any dissection between past and future damages. One wonders whether he directed his mind to the future at all.
Having carefully considered the whole of the oral and documentary evidence bearing on the topic, my immediate impression is that $12,000 is unduly modest.
This lady has endured a miserable time and significant levels of pain, suffering and disability over a period in excess of two years. For much of that time she has been quite restricted in her activities. Moreover, it is no small thing to have to undergo not one, but three successive operative procedures under general anaesthesia. Additionally the evidence suggests that, despite Dr Krishnan’s prognosis that he expected her condition to settle, it seems obvious that the respondent will continue to experience not insubstantial discomfort and disability into the foreseeable future.
I consider that a proper award of damages is $17,000, being $12,000 for past pain suffering and disability and $5,000 for the future.

Orders made

Accordingly, I am constrained to make the following orders:-
Appeal dismissed.
Cross appeal allowed and judgment entered set aside.
Substitute for that judgment, judgment for the respondent against the appellant in the sum of $28,409.95, being:-

......... General damages       -      past               $12,000.00
......... -       future              $5,000.00
......... Special Damages  $11,409.95
......... $28,409.95

I will hear counsel as to the question of costs and interest.

[2001] SASC 48

1 March 2001