ALDI Foods Pty Ltd v Young

ALDI Foods Pty Ltd v Young - [2016] NSWCA 109 - NSWCA 2015 case summary — Zoe

[5]

Liability

Conflicting evidence was given by the respondent and the appellant's employee, Mr Tidmarsh, as to what, if anything, was said between them that may have led to the respondent walking behind Mr Tidmarsh so as to gain access to the cross-aisle. I agree that the CCTV footage does not support either witness's evidence of what was said between them immediately before the incident. The respondent's evidence, that Mr Tidmarsh gestured to indicate that if she was "waiting for the strawberries" she should walk around behind him, was implausible for the additional reason that at the time the video shows her standing directly in front of, and in reach of, a display tray of strawberries.
The question whether the respondent's injury was caused by the appellant's negligence falls to be determined on the basis that there was no specific direction or indication given by the appellant as to whether the respondent could or should gain access to the cross-aisle by walking behind Mr Tidmarsh; and on the further basis that the respondent was given no warning as to the tines (or prongs) of the pallet jack obstructing the entrance to that aisle.
The primary judge did not err in holding that the appellant breached its duty of care as occupier of the food store by positioning the pallet jack so that those tines extended beyond the bottom of the pallet and across the face of the cross-aisle. Leaving it in that position created the risk that someone, not appreciating it was there, would slip or stumble, as in fact occurred. The pallet jack could easily have been positioned where it did not obstruct access to the aisles of the store, as the primary judge found.
In Papatonakis v Australian Telecommunications Commission [1985] HCA 3; 156 CLR 7 at 20, Mason J observed that the content of an occupier's duty to exercise reasonable care varies with the circumstances "including the degree of knowledge or skill which may reasonably be expected of the invitee and the purpose for which the invitee enters upon the premises".
The Court (Gleeson CJ, McHugh, Kirby, Hayne and Heydon JJ) added in Thompson v Woolworths (Qld) Pty Limited [2005] HCA 19; 221 CLR 234 at [37], that the factual judgment involved in deciding what is reasonably to be expected involves an "interplay of considerations". Those considerations include, from the occupier's perspective, the reasonableness of an expectation that any invitee will exercise reasonable care for his or her own safety or of an expectation that allows for the possibility that the invitee will sometimes be inattentive or even negligent; the obviousness of the relevant risk of harm; and the remoteness or otherwise of the likelihood that others will fail to observe and avoid it.
In assessing what it should do for the safety of its customers, the appellant ought reasonably to have anticipated that customers would not always be attentive to their own safety or immediately conscious of what was going on around them. They are likely to include people who are rushing, who are distracted as they move about the store or who are directing their attention to the product or products displayed around them.
Such a shopper would not necessarily notice the tines of a pallet jack close to the floor. This is particularly so taking account of the primary judge's observation at [79] that the evidence did not suggest that the tines would be easy to see. The evidence was that they were metal, close to the floor, perhaps a darker grey than the floor itself, and extending out from under the pallet containing the strawberries which Mr Tidmarsh was unloading.
At [79] the primary judge also accepted the respondent's evidence that she did not see the tines before she tripped or stumbled. In making that finding the primary judge rejected the appellant's submission that the respondent was aware of the presence of the pallet jack and attempting, unsuccessfully, to step over the tines when she stumbled. Although the CCTV footage shows the respondent at an earlier point in time looking towards the pallet boxes, which were positioned at the end of the pallet jack immediately below and to Mr Tidmarsh's right, it does not follow that she must also have noticed the tines or the handle of the pallet jack extending beyond them and further away to her right.
The appellant also challenges the primary judge's findings as to causation and contributory negligence. I agree with Simpson JA's conclusions in respect of each. The finding that the respondent stumbled on the tines that she had not seen inevitably led to the conclusion that the appellant's negligence in positioning the pallet jack caused the accident and her injuries.
It is not necessary to consider whether the appellant was also negligent in failing to warn of the position of the pallet jack, as the respondent also alleged. There would have been no duty to warn if the risk of injury was "obvious" as the appellant argued (Civil Liability Act 2002 (NSW), s 5H(1)). The primary judge concluded that the risk of injury was not an "obvious risk" (s 5F(1)). Whether that was so had to be assessed objectively, taking into account the position of the respondent: Doubleday v Kelly [2005] NSWCA 151 at [28]; Streller v Albury City Council [2013] NSWCA 348 at [31]. The appellant submitted that the risk should have been readily apparent to the respondent as she first walked down the main aisle and past Mr Tidmarsh. As I have already noted in [8] above, the primary judge rejected this argument, finding that the respondent was "in general terms aware that Mr Tidmarsh was unstacking strawberries from a pallet" but not aware of the pallet jack or the tines of that pallet jack extending beyond the sides of the pallet. The CCTV footage does not demonstrate this finding to have been erroneous and I do not regard it as glaringly improbable.

[6]

Non-economic loss

The primary judge found at [169] that as a result of her fall the respondent "suffered an aggravation to her [pre-existing] knee and back problems, pain in her right shoulder and pain in her wrist and hand". Her Honour found that this aggravation "particularly to her knees and back, has continued".
These findings were supported by the evidence of the respondent's treating general practitioner (Dr Zwi) and the contemporaneous clinical notes of Hunters Hill Private Hospital and Alwyn Rehabilitation Hospital, where she had been receiving treatment in the case of the former, over a period which included the happening of the accident and, in the case of the latter, in early August 2009.
The more difficult question for the primary judge was to assess the severity of the respondent's non-economic loss caused by that aggravation (Civil Liability Act, s 16). That task was made more difficult because, although the respondent had a long-standing psychiatric condition which the evidence suggested had intensified since the accident, she did not claim that the accident had aggravated that condition or contributed to her ongoing depressive symptoms. However, that condition and its symptoms formed part of her ongoing disabilities, and were manifest in what Dr Weisz described as her "obvious non-organic presentation".
The formulation of this question acknowledges, as did the primary judge at [168], that the respondent had significant pre-accident problems, especially with her knees and lower back, which would have continued to cause her pain and require treatment irrespective of her falling. This was not a case in which the evidence failed to raise an issue as to the existence of pre-accident conditions and their probable future effects. The evidence having done so, it remained for the respondent on the whole of the evidence to establish the measure of her damages: Purkess v Crittenden [1965] HCA 34; 114 CLR 164 at 168, 170.
The respondent's case was that the ongoing effects of her pre-existing conditions would have been minimal. It was said that those conditions were resolving; that by the time of the accident, she was able to walk freely; and that without the further injuries, she would not have continued to require rehabilitation or pain treatment (see Judgment at [164]).
As Simpson JA observes, the central question of the appeal in this respect concerns the primary judge's assessment of the extent to which the respondent's present symptoms and complaints were materially contributed to by the accident as distinct from her undoubted pre-accident conditions. The primary judge addressed that question at [169] and [170]. Her assessment of the respondent's non-economic loss at 28% was made by reference to the respondent's evidence and that of Dr Wijeratne, Dr Weisz and Dr Harbison.
Her Honour found (at [167]) that prior to the accident the respondent had improved somewhat although remained "physically fragile" and "vulnerable" to exacerbation of her conditions. Her Honour accepted the "report" of Dr Wijeratne that the respondent had been suffering gradually worsening pain in her knees and that this was made worse by the fall so that in 2013 her mobility was severely impaired and her day-to-day functioning limited. The appellant submits that this report was simply a referral letter to Dr Cross which did no more than recite the respondent's history as it was told to the writer.
The evidence shows that the respondent consulted Dr Wijeratne in March or April 2013 whilst an in-patient at the Wesley Private Hospital at Kogarah. It does not suggest that he had treated her at any time prior to that occasion or that he was provided with the results of any earlier clinical or other investigations. The primary judge considered (at [105]) Dr Wijeratne's statement that the respondent's mobility "was now severely impaired and that it limited her day-to-day functioning" as an opinion arising from this consultation.
Dr Weisz's opinion was that the respondent's current condition included a "complex pain syndrome" caused by a combination of injuries "some old and pre-existent, and augmented by the last fall in 2009". He did not make any assessment of the extent to which the respondent would have continued to suffer from the consequences of those injuries and her existing psychiatric condition if the fall had not occurred.
The evidence of Dr Harbison, which the primary judge regarded as "not all that dissimilar" to Dr Weisz' opinion, was that "most, if not all" of the respondent's present symptoms were due to the pre-existing significant arthritis in her knees, the fact of her knee replacements and the degenerative changes in her shoulder and lumbar spine. Expressed differently, his opinion was that the likely progress of those pre-existing conditions would have produced the same or almost the same symptoms as the respondent was in fact experiencing.
The primary judge's likening of Dr Weisz' opinion to that of Dr Harbison is perhaps to be understood as finding common ground between them in the proposition that whilst there had been an aggravation of the respondent's pre-existing conditions, at least most of her present symptoms were attributable to those pre-existing conditions and would have occurred in any event.
The primary judge was then left to assess the respondent's injuries and disabilities as caused by the fall, in circumstances where the evidence established that there had been an aggravation of her pre-existing conditions which resulted in pain and restricted movement. Like Simpson JA, I am not satisfied that the assessment made was manifestly excessive. The primary judge's findings included that the respondent's mobility was severely impaired following the accident as a result of the aggravation of her lower back and right knee conditions, and that the respondent experienced significant pain in part due to that aggravation.

[11]

The respondent's evidence

In 2009 the respondent was 52 years of age. She had recently been hospitalised for two weeks, and was still receiving hydrotherapy and physiotherapy three times weekly as a result of the after effects of bilateral knee replacements she had undergone in 2004.
On 22 July the respondent was shopping in the Aldi store in Manly. She gave an account of what happened, as follows. She entered the store, walked to the rear, and into the section where fruit and vegetables were displayed.
Mr Tidmarsh was unpacking strawberries from boxes on a trolley which was standing to his right. (Throughout the pleadings and the evidence, the trolley was referred to as a "pallet jack", and, for convenience, I will continue to use this terminology.) Another, older, gentleman was nearby. The respondent and this gentleman had an exchange about the strawberries. Mr Tidmarsh was standing in the right hand lengthwise aisle, facing across the fruit display boxes toward the left hand lengthwise aisle. The respondent paused, to the left of Mr Tidmarsh, close to the end of the bank of four boxes. Mr Tidmarsh asked the respondent if she was waiting for the strawberries; she said that she was, and he told her that she would have to "go around this way", gesturing with his hand "towards around the back of him".
This would indicate that the respondent should walk behind him, a short distance, in the right hand lengthwise aisle and into the cross-aisle. This is what the respondent did. She walked behind Mr Tidmarsh and she "stumbled and fell". As she did so, she saw a pallet jack protruding from under the boxes, which she had not previously observed. She stumbled forward, twisted, and fell on her right side, using her right hand in an attempt to protect her face.
A customer came to her assistance, and directed Mr Tidmarsh to provide the respondent with a chair. She was in considerable pain.
An Incident Report book was brought to the respondent. She completed part of an Incident Report form, and the other customer also wrote in the book. Mr Tidmarsh took the Incident Report book and returned with a copy of the form that he gave to the respondent. The respondent's entry in the Incident Report book was: "Fruit loading trolley facing across passageway in between fruit stalls instead of under fruit stalls."

[12]

Mr Tidmarsh's evidence

In 2009 Mr Tidmarsh was a student employed part-time in the appellant's Manly store as a deputy manager and store assistant. His duties included restocking display cases of fruit, vegetables and other goods. To do this, he used both electric and manual pallet jacks, the latter for lighter work. The pallet jacks were used for transporting two types of pallets, the smaller of which was a "D pallet".
No clear description of the pallet jack was given in oral evidence, and there is no photographic evidence that shows it clearly. However, the pallet jack as used by Mr Tidmarsh can be seen in the video recording, and is reproduced in the still images. These suggest that the pallet jack consists of a tray or platform made up of two strips, slightly separated, of a metal substance (called "prongs" in Mr Tidmarsh's evidence) with a narrow gap between them; the platform sits close to floor-level, on wheels, and has a long handle at one end that enables the pallet jack to be pushed or pulled.
On 22 July 2009 Mr Tidmarsh was restocking display cases, using a pallet jack on which were placed boxes of strawberries. The CCTV images show that on the end of the pallet jack furthest removed from the handle were stacked four (or more) boxes of strawberries. That part of the pallet jack that was nearest the handle and the operator was empty. The pallet jack was in the right lengthwise aisle, blocking access to the cross-aisle. The respondent asked Mr Tidmarsh about "a particular product" (Mr Tidmarsh did not specify what the "particular product" was). Using his right hand, Mr Tidmarsh indicated that it was "on the far side of the fruit and vegetable display", located in the left hand lengthwise aisle (later to be called "the meat aisle"), towards the front of the store.
Having given the respondent that direction, and because his pallet jack was obstructing access to the cross-aisle, Mr Tidmarsh said: "Sorry, ma'am, I'll be out of your way shortly, please go around the long way." and, using his left hand, indicated that the respondent should walk towards the back wall and then up the left lengthwise aisle (the meat aisle) to access the product she was looking for. (This was the direct opposite of what the respondent described.)
Mr Tidmarsh returned to his task of restocking the strawberry display. Contrary to his direction, the respondent moved behind him and attempted to move through the cross-aisle. To do so, she walked over the pallet jack. Mr Tidmarsh observed her do this in his peripheral vision. The respondent stepped on the prong nearest to where she had been standing and lost balance. The transcript records Mr Tidmarsh's evidence as: "Yeah, okay, she stepped on the prong closest to herself so that the right most and lost balance." It seems unlikely that this is an accurate transcription, but it is impossible to know what was actually said.
Mr Tidmarsh also completed part of the Incident Report. His entry reads: "Customer tried to walk over pallet jack to gain access to a product instead of walking around the other side. Jack slid under weight and customer fell."
There was some, although limited, cross-examination of Mr Tidmarsh with respect to the conversation. Mr Tidmarsh was asked why he had not included in his entry in the Incident Report that the respondent had disobeyed his instruction to walk around the other way to the left side. His response was that he considered that he had done so, by noting "instead of walking around the other side …".
It was then suggested to Mr Tidmarsh that he was "telling lies", although the cross-examiner did not specify whether the accusation was as to the conversation, or as to his explanation for his somewhat pithy entry in the Incident Report.

[14]

The judgment

The primary judge made the following findings of fact relevant to liability: "i. Mr Tidmarsh was stacking strawberries from a D pallet which he had moved into position on a large manual pallet jack. ii. The pallet jack was in the main aisle and it was blocking the passage to the short aisle. iii. The pallet with the strawberries was placed at the end of the pallet jack prongs furthest from the handle. This resulted in a length of the prongs between the handle and the pallet on which no pallet had been placed. iv. Mr Tidmarsh was standing at the end of the pallet jack near the pallet of strawberries. The handle was at that time furthest away from him. v. The area of prongs on which there was no pallet was approximately the size of a pallet. The prongs were metal and were close to the ground. vi. The plaintiff stepped or tripped over the prongs between the handle and the pallet of strawberries and stumbled and fell. vii. As a result of the fall she injured herself and required assistance which was provided by another shopper."
Of these factual findings, the primary judge said, there was little conflict. She then turned to the disputed issues of fact. These concerned the encounter between the respondent and Mr Tidmarsh, and the conversation between them.
With reference to the CCTV footage, the primary judge said: "42. The CCTV footage is not clear enough to be of any assistance in deciding this issue. It does, however, provide support for the plaintiff's evidence that she was talking to another customer shortly prior to the accident. Her evidence is that this discussion was about strawberries. This is not consistent with her asking Mr Tidmarsh about some other product. The CCTV footage does not have sound and thus it does not confirm the terms of the conversation."
The primary judge rejected Mr Tidmarsh's evidence, and accepted that of the respondent. She did not accept that Mr Tidmarsh's entry in the Incident Report could be read as stating, or implying, that he had given the respondent a direction to avoid using the cross-aisle. She rejected a submission made on behalf of the appellant to the effect that Mr Tidmarsh's account of the conversation had not been challenged; she held that the cross-examination concerning the absence of any direct reference to such a direction in the Incident Report was a sufficient challenge to his evidence in that respect.
The primary judge further held that, even if Mr Tidmarsh's evidence as to what he had said to the respondent were accepted, there was nothing in the words he recounted that would amount to a warning that the prongs of the pallet jack were blocking access to the cross-aisle and that it would be unsafe to walk in that direction.
The primary judge accordingly proceeded to determine liability on the basis of the facts asserted by the respondent, in particular that no warning had been given to her that the prongs of the pallet jack extended beyond the pallet adjacent to where Mr Tidmarsh was standing. (I think the reference to the pallet adjacent to where Mr Tidmarsh was standing must be a reference to the pallets of strawberries he had placed on the display boxes.)

[15]

The Civil Liability Act 2002

The primary judge then turned her attention to the various pleaded provisions of the Civil Liability Act. These are: "5B 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 determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. … 5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) … (3) … (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. 5F Meaning of 'obvious risk' (1) For the purposes of this Division, an 'obvious risk' to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable. 5G Injured persons presumed to be aware of obvious risks (1) In proceedings relating to liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk. (2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk. 5H No proactive duty to warn of obvious risk (1) A person ('the defendant') does not owe a duty of care to another person ('the plaintiff') to warn of an obvious risk to the plaintiff. (2) This section does not apply if: (a) the plaintiff has requested advice or information about the risk from the defendant, or (b) the defendant is required by a written law to warn the plaintiff of the risk, or (c) the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant. (3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection."
She worked her way through the various matters mentioned in s 5B. She noted the submissions of the parties with respect to the risk of harm, and concluded: "56. I find that the risk of harm in the present case was that if the prongs of the pallet jack blocked access to the short aisle there was a risk that a customer would fall over them."
She found that the placement of the pallet jack, such that a portion of the prongs on which there was no pallet blocked access to the cross-aisle, created a foreseeable risk that a customer might trip on it ([59]); she found that the risk of tripping was "not insignificant", as was the chance of serious injury being occasioned ([61]).
Applying the considerations set out in s 5B(2), she concluded that there was "a strong possibility" that harm would occur if care were not taken. She reached this conclusion having regard to the nature of the customer base in a store such as that operated by the appellant. She found it "likely" that serious harm could result; this, in part, was because of the hard surface of the floor on which a customer who tripped would fall, and the sharp edges of display fixtures against which a customer who tripped would fall. She found that taking precautions would not have imposed any significant burden on Mr Tidmarsh or the appellant ([67]). Finally, she concluded that there was no social utility in the activity that created the risk of harm.
For the purposes of s 5D (causation) the primary judge identified the breach of duty as leaving the pallet jack in such a position that its prongs obstructed access through the cross-aisle, and that leaving the pallet jack in that position was a necessary condition of the occurrence of the harm. She found nothing in the evidence to suggest that the harm suffered by the respondent should be outside the scope of the appellant's responsibility (s 5D(4)).
With respect to s 5G, the primary judge stated that the respondent had not pleaded a failure to warn. This was erroneous. The respondent had in the Statement of Claim expressly pleaded failure to warn. She found that the prongs represented "a hidden danger", in effect rejecting the proposition that the presence of the pallet jack constituted an obvious risk, of which the respondent ought to have been aware.

[18]

The CCTV footage

The central factual issue was whether the respondent's fall happened as stated by her - that is, by her walking in the direction indicated by Mr Tidmarsh, and, in effect, being led into a dangerous situation constituted by the presence of the pallet jack protruding across the entry to the cross-aisle, or whether the respondent had moved in a direction towards the cross-aisle; contrary to the indication given to her as Mr Tidmarsh claimed.
There appear to have initially been two areas of conflict in the evidence of the two witnesses, although only one was of significance. The insignificant area was as to whether the pallet jack was parked in the right lengthwise aisle, or in the cross-aisle. In her evidence in chief the respondent said that Mr Tidmarsh was taking strawberries from boxes in the cross-aisle; in cross-examination it was put to her that the pallet jack was in fact located entirely in the right lengthwise aisle, a proposition she eventually accepted. It was, however, parked across the intersection of the lengthwise aisle and the cross-aisle.
The more significant area of dispute concerned what Mr Tidmarsh said, or, more accurately, what he did. His evidence was that, in answer to the respondent's query, he not only gave an oral reply (as set out above), but also made two gestures - the first, with his right hand, indicating the location of the product the respondent was asking about; the second, with his left hand, indicating that the respondent should walk from his left hand side (where she was standing) to the end of the bank of four boxes of fruit, turn right at the end, walk across the end of the bank of four boxes, and again turn right into the meat aisle. The respondent's evidence was that Mr Tidmarsh gestured with his hand "towards the back of him", indicating that she should turn into the cross-aisle, entry to which was impeded by the postioning of the pallet jack. Since she was standing to his left, this would logically mean that he was indicating that she should enter the cross-aisle after walking towards him, and around his back.
On behalf of the appellant it was submitted that the CCTV demonstrated that the respondent's version was "entirely implausible", and that, therefore, Mr Tidmarsh's evidence ought to have been accepted.
The problem with this submission is that the CCTV footage does not support Mr Tidmarsh's version any more than it supports the respondent's version. What it shows is that the respondent walked behind Mr Tidmarsh, and turned left into the cross-aisle - as, she says, he indicated that she should do. It was there that she stumbled across the pallet jack.
The primary judge did not explore this issue in any depth, and certainly not by reference to the CCTV recording. The only reference to the recording in her reasoning is at [42], where she said that it was not sufficiently clear to be of any assistance in resolving the question about the conversation. It is correct that, in the absence of any sound recording, the CCTV footage is not determinative of the evidence of the conversation. It does, however, cast some light on that question.
Since no credibility issues arise in relation to conclusions to be drawn from the CCTV recording (as distinct from the oral evidence of the two witnesses) this Court is in as good a position as the primary judge to undertake the necessary exercise.
After closely watching the CCTV footage numerous times, I am of the view that it does not entirely support either version of the encounter between the respondent and Mr Tidmarsh. This is not because of any lack of clarity, as the primary judge thought, but because Mr Tidmarsh's gestures, such as they are, are not in accordance with either the respondent's account, or Mr Tidmarsh's account. There is nothing on the recording that supports the respondent's claim that Mr Tidmarsh indicated that she should walk behind him and into the cross-aisle. Equally, and contrary to the appellant's submission, there is nothing that supports Mr Tidmarsh's evidence of gesturing, first with his right hand, and then his left hand. There is (at 2.46 of the recording) one tiny, momentary movement of his left hand, that could be interpreted as pointing towards the meat aisle (which Mr Tidmarsh said he did with his right hand). That is to a limited extent consistent with his account of the conversation, in that it gives some support to his assertion that he directed the respondent to the meat aisle in response to her inquiry. But there is nothing that I can see that remotely supports his evidence that he gestured in that direction with his right hand, and nothing that supports his evidence that he then indicated, with his left hand, that the respondent should walk to the bottom of the aisle.
Nor does the footage provide any reason for the respondent's failure to comply with such a direction, had it been given. The footage shows that Mr Tidmarsh was standing facing towards the meat aisle, in front of the bank of four fruit boxes, and very close to the end of that bank. The respondent was standing to his left side, almost at the end of it. The distance between where she was standing when talking to Mr Tidmarsh and the end of the bank of the display cases is very small - it would appear to be less than a metre. There is no apparent reason for the respondent to have returned, behind Mr Tidmarsh, to the cross-aisle to gain access to the meat aisle, other than in compliance with his direction. That gives some support to the respondent's version of events.
The next point made on behalf of the appellant was that Mr Tidmarsh's evidence of the conversation had not been challenged and therefore should have been accepted. The primary judge rejected this, concluding that his evidence had been challenged in the brief passage of cross-examination in which it was put to him that he had not mentioned the conversation of which he gave evidence in his entry in the Incident Report book. It was noted that the respondent also had not included her version of the conversation in her entry in the Incident Report.
That cross-examination was a somewhat flimsy basis for a conclusion that Mr Tidmarsh's evidence had been challenged, although it was sufficient to indicate that his evidence was, at least, questioned. The difficulty is that the versions of the conversation given by the respondent and Mr Tidmarsh were diametrically opposed, and the primary judge had to choose between them. Although the respondent was painstakingly taken through the CCTV footage, it was never clearly put to her that her version of the conversation was incorrect. In other words, while the criticism levelled at the primary judge for rejecting Mr Tidmarsh's evidence has some validity (on the basis that it was not directly or explicitly challenged), it is a criticism that cuts both ways.
A further criticism was that the primary judge gave no, or inadequate, reasons for her acceptance of the respondent's evidence, and consequent rejection of Mr Tidmarsh's evidence. Reference was made to Whalan v Kogarah Municipal Council [2007] NSWCA 5 at [40]-[41] and Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [56]-[67] where the gravity of rejecting sworn testimony was noted.
There is some merit in this criticism. However, the primary judge did not reject Mr Tidmarsh's evidence on credibility grounds. Rather, to the extent that her reasons can be discerned, she did so on reliability grounds, noting that the incident occurred in 2009 and Mr Tidmarsh gave evidence in 2014. Mr Tidmarsh was not cross-examined in such a way as to suggest that his recollection was faulty.
What is inescapable, on the CCTV evidence, is that Mr Tidmarsh's evidence as to directing the respondent to access the meat aisle by walking to the end of the fruit display cannot be accepted. But, equally, the respondent's evidence that he gestured to her to access the meat aisle by walking behind him, and using the cross-aisle, cannot be accepted.
What remains is the evidence of the location of the pallet jack, in the right hand lengthwise aisle, but partially obstructing access to the cross-aisle. Also important is the manner in which it was loaded: on the end were pallets of strawberries, which, by their height, would have been readily observable; what was not so readily observable were the prongs that were not loaded with pallets, and sat close to floor level. It would not have been apparent to a shopper that the pallets of strawberries were on a pallet jack that extended over the cross-aisle.
That the primary judge gave insufficient weight to the CCTV footage does not assist the appellant; had she more closely examined it, she would have had an additional reason to reject Mr Tidmarsh's evidence. While it also does not entirely support the respondent's account of what happened (and especially of the conversation), it is more consistent with her version than that of Mr Tidmarsh.
The primary judge has not been shown to have been in error in preferring the account given by the respondent.

[19]

Breach of duty of care

In Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; 234 CLR 330, Gummow J said: "47 The RTA's duty of care was owed to all users of the bridge, whether or not they took ordinary care for their own safety; the RTA did not cease to owe Mr Dederer a duty of care merely because of his own voluntary and obviously dangerous conduct in diving from the bridge. However, the extent of the obligation owed by the RTA was that of a roads authority exercising reasonable care to see that the road is safe 'for users exercising reasonable care for their own safety' … The essential point is that the RTA did not owe a more stringent obligation towards careless road users as compared with careful ones. In each case, the same obligation of reasonable care was owed, and the extent of that obligation was to be measured against a duty whose scope took into account the exercise of reasonable care by road users themselves." (italics added, citations omitted)
That the appellant owed the respondent a duty of care cannot, in my opinion, be questioned: Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; 162 CLR 479. Determination of the scope of that duty of care takes into account the exercise of reasonable care by the respondent. Although the appellant addressed lengthy written submissions to the question of whether it was in breach of its undoubted duty to the respondent, ultimately its contention was simply that the respondent failed to take reasonable care for her own safety. That does not bear on the question of the existence of the appellant's duty, any breach of its duty, or, indeed, what the duty entailed, although it is plainly significant in relation to the question of contributory negligence.
Once it is accepted that Mr Tidmarsh parked the pallet jack in a position such that it protruded over the access to the cross-aisle, that boxes of strawberries were placed on one end of the pallet jack, but not on that part of it that was nearest the handle, and that the prongs of the pallet jack were low to the floor, and therefore not plainly visible, breach of duty has been established.
These grounds of appeal, in my opinion, fail.

[21]

Contributory negligence

The appellant's submissions in respect of contributory negligence drew heavily on the judgment of Basten JA in Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA 139; 86 NSWLR 393 at [99].
Basten JA had under consideration an injury occasioned to a plaintiff when he was struck from behind by a forklift truck when walking in the premises of the defendant. The plaintiff had seen the forklift travelling on the site on three occasions, sometimes laden with bricks. He had the impression on at least one of those occasions that the forklift was driven erratically at speed, and had on one occasion tilted on cornering.
In this context, Basten JA (with whom Emmett JA agreed) held that, in the assessment of contributory negligence, no distinction was to be made between the fact that from one perspective the driver of the forklift was in control of a vehicle that could cause serious harm to a pedestrian, while from the perspective of the pedestrian, the likelihood of serious harm which could occur if care was not taken was to be considered. He held that: "99 … If the plaintiff were aware, or ought to have been aware, of the presence of a large forklift operating in the area and if the forklift driver were aware, or should have been aware, of the likely presence of pedestrians, and if each were equally careless, liability should be shared equally."
The relevance to the present case of the passage relied upon is somewhat obscure. There is in this case no notable inequality in the physical capacities of the respondent and Mr Tidmarsh, as is the case when the injured party is a pedestrian, and the instrument of injury is heavy machinery such as a forklift.
More apposite authority is to be found in Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; 59 ALJR 492; 59 ALR 529, in a passage that was quoted by Basten JA in Boral Bricks (No 2). The passage is as follows: "10 The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man … and of the relative importance of the acts of the parties in causing the damage … It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance."
It may be that the appellant's submissions were predicated on acceptance of the evidence of Mr Tidmarsh as to his conversation with the respondent; if it were concluded that Mr Tidmarsh had directed the respondent as he claimed that he had, then it could readily be accepted that the relative contribution to her injury by the respondent was greater. However, as indicated above, Mr Tidmarsh's evidence in that respect is not supported by the CCTV footage. There is no acceptable evidence that he directed the respondent to walk in a different direction to that which she did. There is, similarly, only slight evidence that he directed the respondent towards the cross-aisle as she claimed. It is necessary, therefore, to approach the question on the basis that Mr Tidmarsh parked the pallet jack in the lengthwise aisle, partly across the cross-aisle with the prongs low to the floor, and, by reason of there being no pallets on one part of them, not clearly visible. It was Mr Tidmarsh who created the danger by leaving the pallet jack in the position in which he did. Although the appellant contended that "there can be no doubt that [the respondent] was aware of the presence of the pallet jack", I do not accept that. It is contrary to the respondent's oral evidence. The appellant sought to support this contention by reference to an answer given to a request for particulars on behalf of the respondent. The appellant's solicitors had asked: "Did the plaintiff notice the pallet prior to the incident?" to which the response was: "Yes but didn't see the extended prongs." Just what can be drawn from this answer is unclear. The question was about a "pallet", which is distinct from what was referred to throughout the pleadings and the evidence as "a pallet jack". The respondent plainly had seen the pallets of strawberries, including those on the end of the pallet jack. What she had not seen was the unloaded part of the pallet jack.
The respondent's contribution to her injury was minor, being an understandable omission to keep a look out for her own safety, but in circumstances in which she had no reason to anticipate danger. I would not disturb the primary judge's assessment of contributory negligence at 10 per cent.
In my opinion, all grounds of appeal against the finding of liability fail.

[22]

DAMAGES

The award of damages was governed by the provisions of the Civil Liability Act. The respondent claimed damages for non-economic loss (s 16), past and future out of pocket expenses, and past and future domestic assistance. Her claims for past out of pocket expenses and past domestic assistance failed for lack of evidence. The primary judge assessed her non-economic loss at 28 per cent of a most extreme case, resulting in an award of $80,000. She noted that the claim for future out of pocket expenses was quantified in the vicinity of $500,000, but awarded a "cushion" of $50,000. In respect of future domestic assistance, she awarded a lump sum of $20,000. After deduction of 10 per cent, representing the finding of contributory negligence, she awarded damages totalling $135,000.
The calculation of damages was necessarily a complex one. That was because the respondent had a lengthy history of both physical and psychiatric ailments that predated the injury the subject of the present proceedings. There was, therefore, a good deal of medical evidence, all documentary, before the primary judge. No medical practitioner gave oral evidence. A proper assessment of the respondent's damages called for examination, first, of the evidence of the respondent's physical condition as at the date of the hearing, second, of the evidence of her pre-existing condition, and, third, of an analysis of the causal relationship between the injuries sustained in the fall and her current condition. This task was not undertaken by the primary judge, principally because the parties did not attempt to conduct the damages assessment in that way.
The appellant challenges each of the awards of damages made.
The appellant first complained that the primary judge "erred in failing to find that the respondent did not suffer any injury at all in the alleged fall, or, if she did, it was no more than a temporary one". It next challenged the finding that the respondent's injury satisfied the threshold of 15 per cent of a most extreme case presented by s 16(1) of the Civil Liability Act, and, alternatively, the quantification of 28 per cent. The appellant then challenged the awards for future out of pocket expenses, and domestic assistance, in both cases alleging error, or, alternatively, failure to give sufficient reasons for the findings.
The respondent herself gave scant evidence of her medical condition and disabilities as at the date of the hearing. There are significant gaps in the narrative.
She said that, immediately after the fall, and as she left the store, she was in a lot of pain, was very shaky and found it very difficult to walk. The pain was in her knees and lower back. A friend who was waiting for her drove her home. She attempted to see a local general practitioner but was unable to do so. She stayed at home, experiencing "terrible difficulty", because of stairs, and the bathroom arrangement. She therefore went to stay with her mother, who lived nearby.
At the time, the respondent was receiving physiotherapy and hydrotherapy (in circumstances to which I will come) three times per week. She continued to have this treatment, hoping it would help with the most recent injury. Two days after the fall, on 24 July, she saw her general practitioner, Dr Zwi, who prescribed pain killers (additional to those she was already using). She was then admitted to the Alwyn Private Hospital where she remained for 2 to 3 weeks. (The records of the Alwyn Private Hospital indicate that she was admitted on 7 August, and discharged on 24 August.)
The respondent said that she then developed "a lot of pain" in the shoulder area. That pain continued to the time of the hearing. It had become worse over time, though variable. She consulted a Dr Burrows at the Mater Medical Rooms. Dr Burrows ordered continued physiotherapy, hot packs, strapping and means of managing her movements to minimise pain.
The respondent's back also deteriorated. The treatment for her back was hydrotherapy, physiotherapy, ultrasound, painkillers, spinal injections, and braces.
In early 2013, while the respondent was a patient in the Wesley Private Hospital (in circumstances of which there was no evidence) Dr Wijeratne referred her for knee surgery, to be undertaken by a Dr Papademetrious. That surgery was cancelled because the respondent was admitted to the Mosman Private Hospital as a psychiatric patient for treatment for depression.
The respondent said that her knee continued to cause her "terrible pain", and that she was "very much restricted" in what she could do.
It appears that the respondent continued to live with her mother until her mother's death in 2013. Her son Christopher also lived with them. The respondent said that, as at the date of hearing, she was "not coping". Until the time of her mother's death, she and Christopher "were pretty much doing everything for me". In addition, her mother was receiving some form of home care, but that ceased on her mother's death.
Some further information about the respondent's condition can be derived from the medical evidence, although it is scarcely comprehensive.
Dr Zwi, the general practitioner the respondent consulted on 24 July, provided a report in July 2012. She recorded: "At the visit with me … [the respondent] reported having pain in her lower back, her buttocks, her right wrist and hand and her right shoulder. My examination revealed bruising on her right upper arm, approximately 4-5cm diameter. There was a large 8-10cm bruise on the left upper inner calf, and swelling of the left lower leg. On moving her right shoulder there was pain on abduction, and limitation of range of movement. I suspected a rotator cuff injury and referred her to Sydney Radiology for a shoulder ultrasound. [The respondent] saw my colleague Dr James Annear on 10 June 2010 complaining of right shoulder pain waking her at night. Dr Annear suspected a rotator cuff injury. I saw [the respondent] on 27 September 2010. [The respondent] complained of ongoing back pain, knee pain and shoulder pain since the fall in Aldi."
On 7 February 2011, Dr Greggory Burrow, the orthopaedic surgeon to whom the respondent had been referred, reported: "Recent ultrasound has been reported as showing a partial tear of the supraspinatus measuring about 5mms, this corresponds with the clinical findings of marked tenderness about the AC joint which was stable. There was also pain on stressing supraspinatus with some impingement. I thought the subscapularis and infraspinatus were intact. Passive range of motion was largely preserved, excluding significant capsulitis (due to thyroid disease). I agree with you, [the respondent] seems to have marked impingement and a partial tear of the cuff. There was obviously AC joint pain and I have recommended a steroid injection …"
On 3 April 2013 Dr Wijeratne referred the respondent to Dr Mervyn Cross, an orthopaedic surgeon. The referral letter included the following: "… As you may recall you replaced both [the respondent's] knees in Oct 2004. Since then she has been suffering gradually worsening pattella [sic] tendon pains. This has only been made worse in recent times following a [indecipherable word] fall at a supermarket in July 2009. Last time you saw her you noted copious scar tissue behind the TKRs [total knee replacements]. I wonder if this residual scar tissue is to blame for her worsening patella. Her mobility is now SEVERELY impaired and so limiting her functioning day to day." (underlining and block letters in original)
In July 2013 the respondent was referred to Dr George Weisz, an orthopaedic surgeon, for medico legal purposes. He reported on 5 August 2013. He noted that the respondent had had double knee replacements in 2004 and added: "… her knees were symptomatic, but in general non-problematic, she was mobile and self sufficient, receiving only physical and hydrotherapy treatment." Dr Weisz considered that Dr Zwi's report was important, indicating bruising in the left calf level and right arm soon after the fall in the appellant's premises.
As to her condition as at July 2013, Dr Weisz said: "At present, her pain is constant, her general condition reversed her into a state in which she is unable to care for herself, needing assistance from her son in all home duties. She stated that her back 'is 100 times worse' then [sic] before the last accident; the pain in the knee is 'excruciating'; the shoulder is painful whilst carrying or uplifting the arm; and the hands and thumbs are 'very sore'." (italics in original)
Dr Weisz gave his conclusions as follows: "My general impression was of a suffering person, intensely dissatisfied with her disability, but nonetheless positive. She had an obvious non-organic presentation. She expressed, in my view, a complex Pain Syndrome, a combination of injuries at several levels of the musculo-skeletal system, some old and pre-existent, and augmented by the last fall in 2009. The shoulder is a minor component of the syndrome, minimally affecting the functional ability. Same stands for the hands' contusions. The aggravated low back syndrome is disturbing and is one of the limiting problems. She requires medical attention (analgesics and anti-inflammatory medications, with a cost of some $100 a week) and physical therapy to maintain muscular strength, with some $200 a week for the foreseeable year to come. Surgery is not required at this stage, it should only be considered as a last resort, in case of intractable pain and/or appearance of neurological signs. The right knee: We have no description from the operating surgeon on the condition in early 2009, but it seems obviously aggravated since the fall. Indeed, it remains with patellar syndrome that would require surgical attention, for removal and/or replacement of the right patella. This will attract a total cost of some $6000, including surgical, hospital, post-operative rehab/physiotherapy and pharmaceutical fees). She would benefit from 1-2 hours a day home assistance, this in self management, in shopping, cooking, cleaning and alike." (bold in original)
The central question in relation to the appeal against the quantum of damages is the extent (if any) to which the respondent's present symptoms and complaints were caused by the injury in the appellant's store, or, alternatively, are attributable to her undoubted pre-injury condition. The answer to that question depends upon examination of some additional evidence, including medical evidence adduced on behalf of the appellant.
The respondent had a longstanding history of psychiatric illness. She had suffered from major depression, for which she had repeatedly been admitted to psychiatric hospitals. So much was not in issue, and, as I understand the proceedings, the respondent did not claim that her depressive symptoms were caused by the fall. Nor did the primary judge make any finding to that effect. However, the respondent had also had physical ailments. As has emerged from the above extracts from the medical reports, in 2004 she underwent double knee replacement. Initially, she had a good outcome from this surgery - she said that, although she had "a little bit of scar tissue", her knees "were great".
She was, however, on 20 June 2009, admitted to the Hunters Hill Private Hospital following an "accidental manipulation" of the right knee a few weeks earlier. (What an "accidental manipulation" is was not explored or explained.) The respondent was discharged on 4 July - 18 days prior to the fall. The Discharge Summary recorded: "[The respondent] was admitted for rehabilitation for fixed flexion deformity of the right knee. Extension had been about 25° but improved to 7° following an 'accidental manipulation' a few weeks prior to admission. … Therapy: progressed gradually with physiotherapy and hydrotherapy programme for strengthening, conditioning and ROM." The Discharge Summary recorded that the respondent functioned independently, that she walked unaided, and that she had full weight bearing capacity.
Also in evidence were medical records from the Mosman Private Hospital which appear to show that the respondent was admitted on 6 May 2009 and discharged on or about 1 June. This admission appears to have been for depression, but a "Care Plan" recorded that, as at 31 May, the respondent's knee was "chronically bent following 2 total knee replacements" but was straightening with exercise. A later admission (6 July), apparently also for psychiatric purposes, recorded the respondent as suffering chronic pain of the lower back and knee.
As mentioned above, there are records of numerous admissions for psychiatric purposes. It is not necessary to go into the detail of these.
The appellant had the respondent examined by Dr Scott Harbison, an orthopaedic surgeon, and Dr Klaas Akkerman, a consultant psychiatrist.
Dr Harbison examined the respondent on 26 November 2013. He recorded her history. In response to specific questions put to him by the appellant's solicitors, Dr Harbison said: "It is conceivable that [the respondent] sustained the injuries I have described above in the accident. The present condition in all areas is not just the result of that particular incident. She had had prior significant arthritis in her knees and had knee replacements, she had degenerative changes in her shoulder and in her lumbar spine. These are responsible for most, if not all, of her present symptoms. … I do not think that she will require domestic or personal care assistance as a result of injuries sustained in the accident. … It was reasonable for her to have simple analgesics and physical therapy following her injury. I think that she had more of these treatments than would normally have been necessary but only because of her pre-existing condition for which she had previously had similar therapy. The actual injuries she sustained in the fall of 22 July 2009 were minor and would not, in the usual pattern of such injuries, have required treatment for more than a few weeks. The facet joint injections, for example, and the admission to the rehabilitation centre were not, as far as I can tell, necessary as a result of the specific injury in 2009. … The natural history of the degenerative conditions is to worsen but symptoms can often be intermittent. In [the respondent's] case, her prognosis depends more on her mental condition than her physical one. She has adopted a sick role and exhibits significant features of abnormal illness behaviour. This does not augur well for a good future."
There was thus a clear difference of opinion between Dr Weisz and Dr Harbison.

[23]

The findings of the primary judge

The primary judge reviewed at some length the medical evidence. She concluded: "167 I accept the plaintiff's submission that prior to this accident she had improved somewhat but was very physically fragile and thus vulnerable to exacerbations of her physical problems. I accept the fall did cause pain in her knees, right shoulder, back, wrist and hand as reported to the Alwyn Rehabilitation Hospital on 7 August 2009. 168 There is no doubt, however, that the plaintiff had significant pre-accident problems and that they were continuing at the time of the fall and, even without the fall, would have continued to require treatment. The plaintiff suggests that that need for treatment would have ceased shortly after the accident but this is not supported by the medical evidence. 169 Doing the best I can on the evidence available I find that the plaintiff suffered an aggravation to her knee and back problems, pain in her right shoulder and pain in her wrist and hand as a result of the fall. The aggravation, particularly to her knees and back, has continued. I do not accept, however, that the bilateral total knee replacement, if it occurs, will be the result of this fall. At best the time it occurs may be brought forward slightly. I accept the report of Dr Osanda Wijerante [sic] that the plaintiff had been suffering gradually worsening pain in her knees and this was exacerbated following the fall in the supermarket and that by 2013 the plaintiff's mobility was severely impaired and limited her day-to-day functioning." (It is not clear to me where the suggestion that the respondent might undergo a second bilateral knee replacement appears in the medical evidence. Since it was rejected as not attributable to the fall, it need not be pursued.)
The primary judge accepted the opinion of Dr Weisz that the respondent suffered a complex pain syndrome which she considered to be "not all that dissimilar" to the opinion of Dr Harbison. She proceeded to assess non-economic loss at 28 per cent of a most extreme case.
She then rejected the claims for past out of pocket expenses and domestic assistance, but allowed the sum set out above in respect of future out of pocket expenses and future domestic assistance.

[26]

Resolution

There were significant differences to be observed in the opinions stated by Dr Weisz, on behalf of the respondent, and Dr Harbison, on behalf of the appellant. The primary judge preferred the opinion of Dr Weisz, although she did not see major differences between the two.
Since neither practitioner gave oral evidence, this Court is in as good a position as the primary judge to make that assessment.
The opinion of Dr Weisz gained some significant support, not only from the respondent's own oral evidence, but also from the objective evidence contained in the CCTV recording. That undoubtedly shows the respondent walking without difficulty prior to the fall. That is further supported by the discharge summary assessment of the Hunters Hill Private Hospital.
Although the significant issue for the assessment of damages concerned any impact of the respondent's pre-existing condition upon her post-accident condition, neither party referred to the authorities relevant to that question: see Malec v J C Hutton Pty Ltd [1990] HCA 20; 169 CLR 638; Watts v Rake [1960] HCA 58; 108 CLR 158; Purkess v Crittenden [1965] HCA 34; 114 CLR 164. In Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208, Ipp JA, with whom in this respect Mason P agreed, referred to these decisions and pointed out that according to Malec: "103 … (a) In the assessment of damages, the law takes account of hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring. (b) The court must form an estimate of the likelihood that the alleged hypothetical past situation would have occurred. (c) The court must form an estimate of the likelihood of the possibility of alleged future events occurring. (d) These matters require an evaluation of possibilities and are to be distinguished from events that are alleged to have actually occurred in the past, which must be proved on a balance of probabilities." Ipp JA went on to say: "105 Where a defendant alleges that the plaintiff suffered from a pre-existing condition, the evidential onus as explained in Watts v Rake and Purkess v Crittenden remains on the defendant and must be discharged by it. Nevertheless, to the extent that the issues involve hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring, the exercise of 'disentanglement' discussed in those cases is more easily achieved. That is because the court is required to evaluate possibilities in these situations - not proof on a balance of probabilities. 106 Without intending to give an exhaustive list of possibilities, it may be that, had the defendant's negligent act not occurred, a pre-existing condition might have given rise to the possibility that the plaintiff's enjoyment of life and ability to work would have been reduced and to a susceptibility to further injury; in addition, other causes entirely unrelated to the defendant's negligent act might have contributed to the plaintiff's ultimate condition. 107 Appropriate allowances must be made for these contingencies. A proper assessment of damages requires the making of a judgment as to the economic and other consequences which might have been caused by a worsening of a pre-existing condition, had the plaintiff not been injured by the defendant's negligence. A pre-existing condition proved to have possible ongoing harmful consequences (capable of reasonable definition) to the plaintiff, even without any negligent conduct on the part of the defendant, cannot be disregarded in arriving at proper compensation. 108 As was pointed out in Newell v Lucas [1964-5] NSWR 1597 (at 1601 per Walsh J, with whose judgment Hardie and Asprey JJ agreed), the court must determine whether a comparison may be made between the plaintiff's condition prior to the injuries sustained by the defendant's negligence (including the plaintiff's economic and other prospects in that condition) and the plaintiff's condition and prospects after the injuries. Nothing in Watts v Rake and Purkess v Crittenden precludes the judge from carrying out this exercise. 109 Of course, if the evidence does not adequately establish the pre-existing condition or its possible consequences (as was the case in Purkess v Crittenden), it would not be possible to carry out such a comparison and assessment. In regard to the possible consequences, a scintilla of evidence would not suffice. The evidence must be such that a reasonable person could draw from it the inference that the possible consequences contended for by the defendant existed …" (bold in original; one internal citation omitted)
In this case, while the issue of the respondent's pre-accident condition was raised on the evidence, the appellant made little attempt to "disentangle" the effects of the fall from the respondent's pre-existing condition. All Dr Harbison said was that the fall did not aggravate the pre-existing condition. However, scant as it was, there was evidence, from the respondent herself, and from her treating medical practitioners, that she had suffered an exacerbation.
The primary judge accepted that evidence.
In this respect it is important to bear in mind that the respondent's psychiatric condition was not a matter under consideration. She pressed no claim for psychiatric injury.
The assessment, for the purpose of determining non-economic loss, of the respondent's condition as representing 28 per cent of a most extreme case was, perhaps, a generous one, but one within the bounds available to the primary judge.

[31]

The conversation between the respondent and Mr Tidmarsh

The respondent's case at trial was that Mr Tidmarsh had told her that she could get to the meat section by walking behind him and using the side lane. In light of the CCTV footage, the respondent's evidence that Mr Tidmarsh gestured to indicate to her that she could get to the meat aisle by walking behind him and using the side lane cannot be accepted.
The appellant's case at trial was based on Mr Tidmarsh's evidence that he told the respondent to go around the long way to get to the meat section (thereby avoiding the side lane, which was blocked off by the pallet jack). The primary judge rejected Mr Tidmarsh's version, apparently on the basis that it was inconsistent with what he had written in the incident report at the time, which was: "Customer tried to walk over pallet jack to gain access to a product, instead of walking around the other side. Jack slid under weight and customer fell."
It is not easy to discern the inconsistency between Mr Tidmarsh's evidence and the incident report form. The versions are reconcilable. The incident report form contains the implication that Mr Tidmarsh instructed the respondent to walk "around the other side". The primary judge appears to have reasoned that, if Mr Tidmarsh had given such an instruction, he would have expressly referred to it (rather than relied on the implication that, in my view, arises from the words he chose) in the incident report form. It was not directly put to Mr Tidmarsh that he had not given such an instruction to the respondent.
Although I have some doubts about the forensic processes that led to the primary judge's rejection of Mr Tidmarsh's version, it did, in part, reflect her Honour's advantage in seeing and hearing him, and the respondent, give evidence. Accordingly, although I consider Mr Tidmarsh's oral evidence to be consistent with the incident report form and his gesture as depicted on the CCTV footage, I do not consider it to be open to me to find, in these circumstances, that he gave such a direction. This finding does not affect my ultimate conclusion because, for the reasons given below, I consider the risk to have been an obvious one, in respect of which there was no duty to warn and, further, I do not consider the location of the pallet jack to have been negligent.
I am not satisfied that Mr Tidmarsh (as the respondent contended) directed the respondent to proceed down the side lane. Indeed, the CCTV footage is sufficient, in my view, to establish that he did not give such a direction. Thus, the only reasonably available conclusion is that the respondent decided (of her own volition and without instruction or other intervention from Mr Tidmarsh) to go down the side lane across the pallet jack.
There are at least three potential possibilities as to why the respondent chose to do this: first, that she did not see the pallet jack; secondly, that she had momentarily forgotten that it was there; or, thirdly, that she thought she could negotiate the pallet jack safely (by stepping over the prongs between the boxes of strawberries and the handle) and decided, having made that assessment, to take a short cut through the side lane to the meat aisle. Having considered the CCTV footage and the respondent's movements, as well as Mr Tidmarsh's activities during the relevant period, I cannot accept that the respondent was not aware of the position of the pallet jack, or its configuration. It had, after all, occupied that position for a considerable period, during which the respondent had examined the fruit on the pallet jack, including shortly prior to the accident.
This conclusion does not determine the question of negligence but it has the effect that, to establish liability, the respondent must prove that the appellant was responsible for some negligent act or omission which led to her losing her balance.

[33]

The need for a prospective inquiry to take reasonable precautions to prevent like risks of harm

I am not persuaded that the appellant breached the duty of care that it owed the respondent. I consider the primary judge's finding of negligence to be unduly affected by hindsight.
It would be relatively straightforward to work out a way in which these particular strawberries could have been transported into the store on a pallet jack and unloaded so as to avoid this particular accident to this particular plaintiff. However, the content of the duty of care and an assessment of whether it has been breached is not to be worked out in that way. The person who owes the relevant duty has an obligation to take reasonable care to avoid all such risks of harm arising from contact between a person and a pallet jack, not merely to avoid the one that ensued in the present case: see Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; 192 CLR 1 at [123] per Kirby J. The judgment required is a prospective one.
This Court (Leeming JA (McColl and Basten JJA agreeing)) summarised the relevant principles in Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253 as follows: "[51] The essential issue posed by s 5B(1)(c) as to what a reasonable person would have done in response to the risk must be considered prospectively: Adeels Palace Pty Ltd v Moubarak [[2009] HCA 48; 239 CLR 420]] at [31] and [40]… [52] The fact that there were measures which could have been taken to avert (or, for that matter, diminish) the risk that actually materialised does not establish breach: Thornton v Sweeney [2011] NSWCA 244; 59 MVR 155 at [131]. [53] Finally, the scope of an occupier's duty is delimited by the expectation that users will exercise reasonable care for their own safety: see Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [159] and Jackson v McDonald's Australia Ltd at [8]. As Gummow J observed in Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; 234 CLR 330 at [45], the expectation that a potential plaintiff will exercise reasonable care in a case such as the present goes not merely to the assessment of breach, but is a 'specific element contained, as a matter of law, in the scope of the ... duty of care.'"

[34]

The appellant's system of restocking the store during trading hours

The requirement to take reasonable precautions against a risk of harm depends on the nature of the risk of harm and, to some extent, how broadly or narrowly it is defined. The presence of a pallet jack, wherever it was parked on the shop floor, posed a risk that a patron or employee might either trip over it or sustain injury as a result of some other contact with it. In the circumstances of the present case, the risk of harm can be more narrowly defined. The narrowest formulation of the risk of harm in the present case was that a pallet jack, which had been unloaded so that at least part of the prongs were exposed, posed a risk that someone might slip or trip over the exposed prongs between the space between the handle and the other boxes, since the exposed prongs were low to the ground.
The precautions adopted by the appellant against that risk (and, indeed, the broader risk), as revealed by the evidence, were as follows: 1. the pallet jacket was parked so that it completely cut off access to the side lane while it was being unloaded (it being accepted that to cut off access partially could create a risk); 2. if there were two piles of boxes on the pallet jack, the boxes were unloaded first from the middle of the pallet jack so that the ends of the prongs were not exposed; 3. if there was only one pile of boxes on the pallet jack, the boxes were loaded onto the end furthest away from the handle so as not to expose the ends of the prongs; 4. the pallet jack had a prominent handle which was used to propel it and which also had the effect of alerting patrons and other employees to the existence and location of the pallet jack; and 5. the prongs of the pallet jack were dark, in contrast to the surface of the floor, which was light.
The evidence established that the system which comprised those precautions was complied with in the instant case.
The third particular of negligence, the placement of barriers, does not appear to have been pursued. The first and second particulars are largely, although not wholly, the same, since the position of the pallet jack does not pose a risk to anyone who knows, or ought to know, that it is there. Whether the risk that it posed was obvious is relevant to the requirements of reasonable care required; and the question whether the position of the pallet jack (so as to obstruct the side lane) was negligent.
The term "obvious risk" is defined by s 5F of the Civil Liability Act as follows: "5F Meaning of "obvious risk" (1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable."
In my view, the risk posed by the exposed prongs of the pallet jack would have been obvious to a reasonable person in the position of the respondent. The presence of the boxes on the prongs; the conspicuous handle; and the presence of Mr Tidmarsh who was transferring boxes of strawberries from the pallet jack to the counter, would all have alerted a reasonable person to the prongs of the pallet jack and their location.
By reason of s 5H of the Civil Liability Act, the appellant was not obliged to warn the respondent of the risk of the exposed prongs since the risk was obvious. The respondent was presumed to be aware of an obvious risk, unless she proved, on the balance of probabilities that she was not aware of the risk: s 5G. The respondent admitted that she saw the boxes of strawberries before they had been moved to the counter. I am satisfied, having viewed the CCTV footage, that the respondent was aware of the strawberries on the pallet jack and ought to have been aware of the exposed prongs. Indeed, she saw Mr Tidmarsh unpacking strawberries from the pallet.
However, even if the pallet jack constituted an obvious risk (in respect of which there was, accordingly, no duty to warn) it could still have been negligent, as the primary judge found it was, to leave the pallet jack parked in a position where it obstructed a side lane. There was a risk that patrons might still use the side lane as a short-cut, notwithstanding the presence of the pallet jack and the availability of other means of access
I am not, however, persuaded that there was any negligence, as alleged. The pallet jack had to be parked somewhere (given the absence of an allegation of negligence in restocking merchandise during opening hours with pallet jacks). There is no reason to suppose that the risk of harm created by its being parked against a counter (which would necessarily have obstructed the wide aisle, although not the side lane) would have been less than that created by its being parked across a side lane. Although the respondent's accident might not, in that event, have happened, the risk of other accidents might have been increased. On that scenario (the pallet jack being parked against the counter), Mr Tidmarsh would have been required to bend over the pallet jack in order to restock the counter and may have thereby been subjected to a greater risk of injury. Customers might also have been tempted, in that event, to reach over the pallet jack to retrieve goods from the counter against which it had been parked and might have been injured in the process.
Since I am not persuaded that it was negligent of the appellant to park the pallet jack across the side lane (and there was no duty to warn of an obvious risk) I am not satisfied that there was any breach by the appellant of the duty of care that it owed to the respondent. It is to be remembered that the duty is not to make the appellant's store as safe as human skill could possibly make it; the duty is only to take care which is reasonable in the circumstances (by taking reasonable precautions against the risk of harm): ss 5B and 5C of the Civil Liability Act.
As to causation, I infer that the respondent lost her balance either because she deliberately intended to step onto, or over, the prongs of the pallet jack and misjudged her capacity to negotiate the pallet jack rather than walking around it; or because she momentarily forgot that the pallet jack was there. Of these two, I discount the second as being fanciful, as the CCTV showed that the respondent was inspecting the strawberries on the pallet jack shortly before (less than a minute) she stepped over or onto the prongs. The respondent's loss of balance occasioned by her coming into contact with the pallet jack occurred because she was failing to take reasonable care for her own safety.
The only act or omission which contributed to the respondent's losing her balance was Mr Tidmarsh's act of parking the pallet jack across the side lane between the counters. Had the act of parking the pallet jack been negligent, then the requirement for factual causation would have been fulfilled: s 5D(1)(a). The test in s 5D(1)(a) is no more than the "but for" test: Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182 at [18]. However, I do not consider this act to have been negligent for the reasons given above.
For these reasons I am persuaded by the appellant's submissions that the primary judge was in error and there should have been judgment for the appellant.

[37]

Non-economic loss

The assessment of non-economic loss is a discretionary judgment in respect of which this Court ought not intervene unless satisfied that there was an error in the exercise of the discretion such as to cause it to miscarry or that the result is so far outside reasonable bounds that the only conclusion is that there was a latent error: see the authorities referred to in Nemeth v Westfield Shopping Centre Co Management Pty Ltd [2013] NSWCA 298 at [11] (Meagher and Barrett JJA).
I am satisfied that the primary judge's assessment of non-economic loss falls into the latter category. The figure of 28% is, in my view, manifestly excessive. There was no finding that the respondent's psychiatric condition was in any way related to the accident (which was not, in any event, claimed in the statement of the particulars). Indeed, the primary judge appears to have found (consistently with the medical reports) that the respondent's presentation after the accident was largely consistent with her presentation beforehand.
The contemporaneous records provided what I consider to have been the most reliable guide to the immediate and long-term effect of the accident. The respondent was an in-patient at Hunters Hill Private Hospital for, among other conditions, back and knee pain, from her admission on 20 June 2009 until her discharge on 5 July 2009. On 6 July 2009, the day after discharge, she presented to Mosman Private Hospital complaining of chronic back and leg pain for which she was prescribed Panadeine Forte. She returned to Hunters Hill Private Hospital as a day-patient at weekly intervals after her discharge. The evidence recorded her attendances on 13 July, 20 July and 24 July 2009. The clinical notes of Hunters Hill Private Hospital for the attendance on 24 July 2009 (two days after the accident) recorded: "Tripped in Aldi 2/7 [two days] ago → bruising L [left] inner skin [or shin] and R [right] upper arm, otherwise OK. To do DTC [Day Therapy Centre] prog [programme]"
Her Honour referred to the medical evidence relied upon by each of the parties. Her Honour's conclusions and findings are largely set out in [167]-[170] of the reasons. Paragraphs [167]-[169] have been set out in Simpson JA's reasons. The primary judge continued at [170]: "This is not all that dissimilar to the opinion of Dr Harbison who concluded that the plaintiff suffered a contusion of her right hand, both knees, possibly a strain to her right shoulder and lumbar region as a result of the incident. It was his opinion that her condition in all areas was a result of not just the accident but the prior significant arthritis and replacements in the knee, degenerative changes in her shoulder and lumbar spine and that those pre-existing symptoms were responsible for most, if not all, of her present symptoms. I would assess non-economic loss at 28% or $80,000."
Dr Harbison (who examined the respondent at the request of the appellant's solicitors), was not cross-examined. His opinion was regarded by the primary judge as "not all that dissimilar" to her findings. Dr Harbison recorded the history given that on 22 July 2009 the respondent sustained contusion of her right hand and both knees and possibly sustained a strain at her right shoulder and lumbar region. He opined: "It is conceivable that Ms Young sustained the injuries I have described above in the accident. The present condition in all areas is not just the result of that particular incident. She had had prior significant arthritis in her knees and had knee replacements, she had degenerative changes in her shoulder and in her lumbar spine. These are responsible for most, if not all, of her present symptoms."
I do not regard the primary judge's assessment of 28% as congruent with the her Honour's findings and, in particular, with her substantial acceptance of Dr Harbison's opinion. On the basis of the findings made by the primary judge, I am not satisfied that the respondent has established that the severity of her non-economic loss is equal to or greater than 15%. Accordingly, the respondent is not entitled to damages for non-economic loss: s 16 of the Civil Liability Act.

[39]

Future domestic assistance on a commercial basis

The difficulties of assessing damages for future domestic assistance were substantial. Although the respondent alleged that she had received past assistance gratuitously, no detail was provided as to when, how much, by whom or for what duties such assistance had been provided. Accordingly, the details of what occurred in the period of almost five years between the accident and the hearing were not revealed by the evidence. The primary judge gave reasons for the award of a buffer of $20,000 for future commercial domestic assistance as follows: "The state of the evidence does not enable me with any particularity to determine what, if any, increase there is in the need for domestic assistance. The plaintiff's evidence is that she is able to do her washing because she has a front loading washing machine but that nothing else has been done since her return from hospital. She states she has been unable to go to Woolworths to do her shopping although she did make an attempt to shop with a scooter but found she needed to ask staff for help. The plaintiff did not cooperate with her solicitor's attempts to organise a report from an occupational therapist. Given the state of the medical evidence it is difficult to conclude that even with such a report it would be possible to calculate what, if any, future domestic assistance relates directly to the fall at ALDI. I accept that the plaintiff may have need of commercial assistance from time to time to clean her house and this may be required more often because of the continuing aggravation of her condition. In all the circumstances I will allow a buffer of $20,000 for this head of damage."
The balance of probabilities is the relevant standard of proof. The respondent bore the onus. It was not enough for her to show that it was possible that the accident at the appellant's store might cause her to require additional domestic care in the future. She was obliged to prove that it would probably cause such a further requirement: s 5E. The primary judge was satisfied only that it was a possibility, not a probability, as her Honour's reasons, extracted above, indicate. Her Honour did not make the award on the basis that the appellant had failed to disentangle the effects of the accident from the effects of the respondent's many pre-existing conditions, even if the principle in Purkess v Crittenden (1965) 114 CLR 164 still applies notwithstanding the terms of s 5E.
Where there is an established need for domestic assistance, which has been provided gratuitously as at the date of hearing, the judge is entitled to assess damages for the future on the footing that there is a real (not fanciful) prospect that the assistance will have to be provided commercially at some stage in the future. In Miller v Galderisi [2009] NSWCA 353 the Court of Appeal (Allsop P, Basten and Macfarlan JJA) said: "[24] In awarding damages for loss of earning capacity, allowance is routinely made for contingencies or vicissitudes which may, absent the tortious injury, have caused loss in any event. Conventionally, a figure of 15% is allowed for such contingencies: see New South Wales v Moss [2000] NSWCA 133 ; (2000) 54 NSWLR 536 at [31]-[33] (Mason P) and the authorities referred to, including Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53 ; (1995) 184 CLR 485 at 497-498 (Dawson, Toohey, Gaudron and Gummow JJ). There is no conventional allowance for the provision of domestic assistance on a commercial basis at some future point in time, against the possibility that the gratuitous carer may no longer be able or willing to provide such care. If any such convention were to be adopted, it would, as with vicissitudes, require the plaintiff's particular circumstances to be taken into account. The respondent's circumstances in this case militate against any such allowance. Accordingly, it is not appropriate in this case to simply pluck a figure out of the air because there is a remote, though not entirely fanciful, chance of the need for commercial domestic assistance in the future."
In the present case, the respondent failed to establish a need for domestic assistance resulting from the accident. There was insufficient evidence for the primary judge to determine what, if any, domestic assistance, had been provided either before the accident; or in the period from the accident to the hearing; or what might be provided in the future. In these circumstances the primary judge was not entitled, having regard to her Honour's reasons set out above, to make any award for future commercial domestic assistance. The award ought be set aside.

At a glance

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Judgment (41 paragraphs)

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Cases Cited (29)

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