Coles Supermarkets Australia Pty Ltd v Meneghello - [2013] NSWCA 264 - NSWCA 2013 case summary — Zoe

NSWNSWCA

Coles Supermarkets Australia Pty Ltd v Meneghello

[2013] NSWCA 264

Court of Appeal (NSW)|2013-06-25|Before: Barrett JA, Ward JA, Emmett JA

View original source

At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2013-06-25

Before

Barrett JA, Ward JA, Emmett JA

Catchwords

(1987) 162 CLR 479 Bradshaw v McEwans Pty Ltd (HCA, unreported, 27th April 1951) Dasreef Pty Ltd v Hawchar [2011] HCA 21
(2011) 243 CLR 588 Dell v Dalton (1991) 23 NSWLR 528 Jones v Dunkel [1959] HCA 8
(1959) 101 CLR 298 Luxton v Vines [1952] HCA 19

Source

Original judgment source is linked above.

Catchwords

(1987) 162 CLR 479 Bradshaw v McEwans Pty Ltd (HCA, unreported, 27th April 1951) Dasreef Pty Ltd v Hawchar [2011] HCA 21(2011) 243 CLR 588 Dell v Dalton (1991) 23 NSWLR 528 Jones v Dunkel [1959] HCA 8(1959) 101 CLR 298 Luxton v Vines [1952] HCA 19

Judgment (19 paragraphs)

[1]

Judgment 1BARRETT JA: The respondent's District Court action for damages for negligence arose from a fall she suffered in the appellant's supermarket at Neutral Bay between 5.30pm and 6.00pm on 22 May 2010. 2The primary judge (Kearns DCJ) held that the appellant had been negligent in allowing two small pieces of cardboard to lie on the floor of the supermarket. He found that the respondent slipped on that cardboard and thereby suffered loss and damage. His Honour assessed the respondent's injury as 20 per cent of a most extreme case and awarded damages of $119,024 made up as follows: Non-economic loss $ 18,000 Past out of pocket expenses 1,024 Future out of pocket expenses 5,000 Past gratuitous care nil Future domestic assistance 30,000 Past loss of earning capacity 15,000 Future loss of earning capacity including superannuation 50,000

[2]

The judge's decision on liability 3The primary judge said that there were two reasons why the probabilities favoured a finding that the respondent slipped on the pieces of cardboard on the floor: first, the plaintiff (whose evidence he accepted) gave evidence of the presence of the cardboard on the floor at the relevant time (she described one piece as resembling a Paddle Pop stick); and, second, the fact that she had otherwise carried out her shopping without incident made it probable that it was some foreign object that caused her to slip, there being no suggestion that anything about her footwear (thongs) did so. 4The primary judge also found that the expert opinion of Mr Fogg, an engineer, established that cardboard on a floor surface constitutes a slip hazard. His Honour did not accept a submission that Mr Fogg had not explained the reasons for his opinion and that his opinion was therefore devoid of probative value. 5There was also a finding that the presence of the pieces of cardboard on the floor resulted from activities of the staff of the appellant. The judge referred to evidence about the stacking of shelves at the supermarket, with goods being brought to the shelves in cardboard cartons and the empty cartons being taken away in a trolley. That practice was seen as providing ample opportunity for small pieces of cardboard to fall to the floor. 6The judge's composite conclusion on liability was stated as follows: "On the probabilities then the situation is that when the plaintiff had her accident, there were present on the floor pieces of cardboard. Those pieces of cardboard had been placed and left there by staff of Coles. They constituted a foreseeable slip hazard. The plaintiff trod on a piece of cardboard and slipped and was injured." 7That finding related to the matter referred to in s 5B(1)(a) of the Civil Liability Act 2002. His Honour went on to say that the risk of injury from a slip could be described as "not insignificant" within the meaning of s 5B(1)(b). Implicit in his Honour's conclusions of liability for negligence are the following propositions in addition to those articulated in relation to s 5B(1)(a) and s 5B(1)(b): (a) that, in the circumstances, a reasonable person in the appellant's position would have taken precautions against the presence of cardboard on the floor (s 5B(1)(c)); (b) that the negligence of the appellant in not taking such precautions was a necessary condition of the occurrence of the harm to the respondent (s 5D(1)(a)); and (c) that it was appropriate for the scope of the appellant's liability to extend to the harm so caused (s 5D(1)(b)).

[4]

The evidence relevant to liability 10The respondent's evidence was that, after taking ice cream from a refrigerated cabinet, she began to walk towards the supermarket check-out but diverted to a different section of the store to collect some dip from another cabinet; and "... then I went to get the dip and my leg went out from underneath me and I fell basically on my right shoulder into the dairy or the, yeah, the cold section of the cabinet and knocked lots of cheese and dips and things over in the cabinet". 11She then: "... stood up, picked up the ice cream I dropped and went straight to the cash register, paid for it and then left". 12Asked in examination in chief if she was immediately conscious of the reason she slipped, the respondent replied: "I - when I stood up I saw that there was - I thought it was like a paddle-pop stick and a piece of cardboard or something, and I didn't - I mean I didn't - I just sort of noticed it as I picked up the ice-cream." 13At a later point, the examination in chief continued as follows: "Q.... I take you back to what you said about the occasion when the event occurred. You said they looked something like - did you say a paddle-pop stick? A. Yeah". 14The respondent gave further evidence in chief as follows: "Q. So had you got your ice-cream and moved from there to the area of the dips? A. Yes. Q. And the cardboard about which you speak, the piece of cardboard that looked like the paddle-pop stick - in what vicinity was that? A. Near the dip. Q. Near the dip, all right. Now when you were in that aisle, did you see any work going on by any staff from Coles? A. No, I didn't see any - there was - I didn't see anybody in the aisle at all, shoppers or people that worked that there that I can remember. Q. Did you see any staff of Coles in the aisle at all? A. No. I don't know before but I know that that definitely after I fell I didn't see anybody because I was embarrassed and I looked and there was nobody there, so I can't say 100 per cent before that I didn't see anybody, but I don't think so." 15In the course of cross examination, the respondent said that she did not see any cardboard on the floor as she approached the cabinet containing dips; nor did she see anyone stocking shelves or any trolley containing cardboard boxes. She was not conscious of stepping on cardboard. 16After regaining her feet, the respondent picked up the ice cream from the floor, took it to the check-out, paid and left the store. She joined her husband who was waiting in the car. After a conversation with him, she went back to the store and spoke to an employee later identified as Mr Piya. She told him that she had fallen. They went together to the place where she had fallen. From that point, the examination in chief continued in this way: "Q. And when you went to the place where you fell, did you find anything there? A. Yes, there was the two pieces of - which I found out were cardboard that were on the floor, and he picked them up and had a look at them. Q. Sorry, did you say he - A. He picked them up and had a look at them. Q. All right, and then what did he do? A. And then he put them back down, and he asked if I could come to the front counter and fill out just a form, and write down my name and address and what happened. Q. Did one of the pieces of cardboard that you saw, did - let me start that question again. Describe the pieces of cardboard that he picked up for us, please? A. One was a - like a rectangular shaped piece of cardboard with a round edge, and the other as a small sort of - sort of square or rectangle fatter piece than that one. Q. Now, have you - or did you - take those pieces of cardboard with you? A. No, he put them back down on the floor and I left with him. Q. Did you go with him then and give him the details of what had happened? A. Yes." 17The respondent confirmed in cross-examination that Mr Piya had picked up the two pieces of cardboard from the floor and put them down again. She thought it strange that he should put them back on the floor. 18The respondent then went to the front counter with Mr Piya and, at his request, wrote on a piece of paper he gave her "what happened with my name [and] address". Mr Piya kept the paper and gave the respondent a card with the name and telephone number of someone he asked her "to call the following day or in the next couple of days". 19The respondent later called the number on the card and spoke to someone whose name she thought was Nicola who "asked me more questions which she filled out". Tendered and admitted into evidence was a form headed "Incident Report & Investigation - Full Version" obviously prepared within the appellant's organisation and referring to the respondent's fall. Under "Submitter Details: Name:" the form records "Nicola Mellas" who is described as "Store Support Manager". It may be accepted that this is the "Nicola" to whom the respondent spoke by telephone. Ms Mellas is also recorded as the person to whom the incident was reported (no doubt a reference to the telephone call made by the respondent). 20The document records particulars as follows: "How did they report incident: IN PERSON Department in which occurred: DAIRY/FROZEN Exact Location: COLD FOOD CABINET NEAR THE DIPS AREA Type of incident: INJURY OR ILLNESS Description of incident: CUSTOMER SLIPPED ONTO THE COLD FOOD CABINET Slip or Fall involved: YES Date floor last cleaned: 22/05/2010 Time floor last cleaned: 1:-01 AM Footwear description: BLACK THONGS Plant and/or Equipment Involved?: NO Merchandise Involved?: NO Incident captured on CCTV or video?: NO One or more witnesses?: NO Incident due to external (third) Party?: NO Risk Rating: Notifiable Criteria met?: NO". 21A section of the document headed "Additional Notes" records the following: "Detailed Description of Incident: CUSTOMER SLIPPED ONTO THE COLD FOOD CABINET. A STICK OR CARDBOARD WAS ON THE FLOOR. HER RIGHT ARM AND LEFT FOOT IS SORE." 22A section headed "Investigation Details" records the following: " Control Actions Risk Assessment Database referred to: YES "Control Action 1: Action - REMOVED THE HAZARD-By Whom:-NICOLA MELLAS-Maintenance Log#:- Due Date: 22/05/2010 Completed: YES". 23Ms Mellas was not called as a witness. Mr Piya gave evidence in the appellant's case but had no recollection of the particular episode. He did, however, give evidence of his practices as a casual sales assistant, as follows: "Q. If you'd observed pieces of cardboard on the floor of the dairy aisle what would you have done with them? A. If I'd seen the cardboard in the dairy aisle at the moment if I'm with Coles I would have removed that cardboard boxes. Q. What about the cardboard pieces what would you have done with that? A. Of course remove the-- Q. As at May 2010 was there a system at Coles Neutral Bay for monitoring the accumulation of debris and the like, spillages on the floor of the Coles shop? A. I'm not sure how the system works in Coles I was just a casual sales assistant at the checkout but basic things regarding our safety, we are trained when we get employed with Coles - like safety signs for example spillages on the floor and we also - or someone - customers let us know and we go straight away or someone we report to puts the safety signs, warning sign. That's all I know about it. Q. What about as you walk around the store? What do you do as an employee? A. Yeah if I walk around the stores if I see any safety hazards or spills, something like that we isolate and put the warning signs. Q. So far as you are now able to recollect was that process that you expect you would have followed on 22 May 2010? A. Yeah if - at that time yeah I would have done the same thing." 24Mr Piya also gave evidence about the process of re-stocking the shelves. He said that staff did this every night, starting at about 7 or 8 o'clock. He agreed that if stock of a particular item became depleted, the shelf or cabinet might be re-stocked during the day. He also accepted that some merchandise was taken to the shelves in cardboard cartons and that empty cartons were typically placed on a trolley to be taken away. 25The respondent's husband gave evidence of having taken a number of photographs at the store premises in the months after the respondent's fall. Thirteen such photographs were admitted into evidence. Some of them showed empty cardboard cartons in trolleys in the aisles of the supermarket. What appear to be four small objects on the floor appear in some of the photographs. The witness identified these objects as pieces of cardboard. 26The respondent relied at trial on a report by Mr Fogg, the engineer, tendered in the respondent's case. Certain objections to admissibility were made but not upheld. Mr Fogg expressed an opinion that four factors contributed to the respondent's injury: first, failure of the appellant to maintain a program of regular and routine floor inspection, second, failure of the appellant to monitor and inspect pedestrian aisles adequately, third, failure of the appellant to ensure that persons unpacking products were appropriately trained in the causes of slips, trips and falls and fourth, the appellant's failure to ensure that walking surfaces for shoppers complied with a particular Australian Standard. 27Mr Fogg did not give oral evidence. His report proceeded clearly on the basis that "cardboard was the intermediary between the floor surface and the Plaintiff's footwear" - in other words, that the respondent's foot had been placed on to cardboard lying on the floor and that that placing of the foot was the cause of the slip and fall. That that was Mr Fogg's understanding is borne out by the following passage in his report: "In this matter, the cardboard material deposited on the floor has reduced the amount of grip available between the vinyl surface and the pedestrian's footwear at this location."

[7]

Did the respondent tread on cardboard? 37There was no direct evidence that the respondent's foot came into contact with cardboard or that cardboard was at any time between the sole of her thong and the surface of the floor. There was direct evidence from the respondent that she did not see any cardboard on the floor as she approached the dips cabinet and that, when she got to her feet after falling, she saw two small pieces of cardboard on the floor near the place at which she had fallen; also that the pieces of cardboard were still there when she went back to that place with Mr Piya about fifteen minutes later. Beyond that, the incident report prepared by Ms Mellas referred, in the description of the incident, to "a stick or cardboard" being on the floor without any reference to the respondent's having stepped, trodden or slipped on it; and the respondent's husband gave evidence of having seen small pieces of cardboard on the floor of the supermarket on several occasions over ensuing months. 38The question is whether, with the evidence in that state, it was open to the judge to draw an inference that the respondent's foot had come into contact with the cardboard. 39In Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 at 305, Dixon CJ quoted the following passage in the judgment of the High Court in Bradshaw v McEwans Pty Ltd (HCA, unreported, 27th April 1951): "All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant's negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood." 40To like effect is the statement by Dixon, Fullagar and Kitto JJ in Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 at 358: "In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture: see per Lord Robson, Richard Evans & Co Ltd v Astley (1911) AC 674, at p 687. But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise: cf per Lord Loreburn (1911) AC, at p 678." 41In the present case, there were two relevant possibilities: that the respondent placed her foot on to a piece of cardboard lying on the floor; and that the respondent placed her foot on to a part of the floor devoid of cardboard. The fact that two small pieces of cardboard were seen by the respondent in the vicinity when she got to her feet after falling does not endow the first possibility with a greater degree of probability than the second. Common experience would not suggest that the respondent's foot landed in one place rather than the other. There was accordingly an insufficient basis for an inference that the respondent's foot came into contact with cardboard on the floor.

[8]

Was cardboard a slip hazard? 42Mr Fogg's evidence went to the question whether small pieces of cardboard on the floor represented a slip hazard. 43Mr Fogg identified several "common slip hazards" in his report. One is: "dry contaminants such as powder, granules, paper or cardboard". Mr Fogg explained that every floor possesses a degree of slip resistance and that, when some contaminant is present on the surface, the greater the thickness or viscosity of the contaminant, the greater must be the degree of the floor's slip resistance to protect against slipping. Mr Fogg continued: "To determine the representative slip resistance of a walking surface under wet or dry conditions, testing is undertaken using a calibrated tester. This testing evaluates the grip between the foot and a surface. In this matter as cardboard was the intermediary between the floor surface and the Plaintiff's footwear, floor testing is not applicable." 44Mr Fogg said that a coefficient of friction under wet or dry conditions of at least 0.4 is recommended. He later made the statement set out above. 45Two things are clear from Mr Fogg's report: first, that he did not make any test of the degree of grip or slip resistance between the foot of a person of the respondent's weight wearing thongs (or, more precisely, the sole of a thong worn by such a person) and the relevant part of the supermarket floor when a small piece of cardboard was between the thong's sole and the surface of the floor (he said that, in such a case "floor testing is not applicable"); and, second, that Mr Fogg did not seek to explain or give reasons for the ultimate opinion that, in the particular case at the particular location, cardboard deposited on the floor had "reduced the amount of grip available between the vinyl surface and the pedestrian's footwear". 46The appellant sought to argue on appeal that Mr Fogg's report was wrongly admitted into evidence. Its more strenuous submission, however, was that the crucial parts of the report were entitled to negligible weight, even assuming that what the appellant regards as the fatal problem of the missing link between the respondent's fall and the presence of cardboard on the floor did not exist. That contention is based on the absence of any stated rationale for Mr Fogg's ultimate conclusion (that cardboard on the floor reduced the grip between the floor and the respondent's thong footwear) and, in particular, the absence of any testing or measurement as the stated foundation for the conclusion and any quantification of the extent of the reduction. 47The absence of any such statement of reasoning and quantification by Mr Fogg left the trial judge in the position described by Heydon J in Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 at [93]: "If there is not some exposition of the expert's reasoning it will be impossible for the court to compose a judgment stating, and for the jurors to assemble, reasons for accepting or rejecting or qualifying the expert's conclusion." 48Heydon J quoted with approval the following observation of Anderson J in Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370 at 390: "The process of inference that leads to the [expert's] conclusions must be stated or revealed in a way that enables the conclusions to be tested and a judgment made about the reliability of them." 49The appellant's contention must be accepted. Mr Fogg's opinion as to the effects of the presence of cardboard between sole and floor does not rise above mere assertion. If the opinion evidence were to be of probative value, it would have to do more than simply assert that grip or resistance was reduced because of the presence of cardboard. Grip reduced by 70 or 80 per cent would be one thing but grip reduced by one per cent or five per cent would obviously be another. The opinion, as expressed, does not make possible any evaluation as to whether a small piece of cardboard, if present on the floor, represented a severe hazard, a material hazard or a hazard that was merely academic, trivial or negligible. The opinion was therefore of no assistance in deciding whether the risk of injury from slipping on cardboard was "not insignificant" as referred to in s 5B(1)(b) of the Civil Liability Act.

[10]

Grounds of appeal on damages 55The appellant challenges the judge's decision on both non-economic loss and economic loss. 56As to the first, the appellant contends that the judge fell into error in finding that the severity of the respondent's non-economic loss was 20 per cent of a most extreme case. It says that the severity was less than 15 per cent of a most extreme case. 57In relation to economic loss, the appellant concentrates on the matters of future domestic assistance and assessment of earning capacity, both past and future. 58In relation to domestic assistance, the appellant says that there should have been no award for future assistance at commercial rates because the evidence at trial was that domestic assistance was provided by the respondent's husband, there was no evidence that the husband would not continue to provide such assistance indefinitely into the future and that the evidence accepted by the judge was that the need for domestic assistance in part arose from the fact that the household comprised three children. 59On the matter of past earning capacity, the appellant complains that the judge found that the respondent had lost time from work because of a skin condition unrelated to the fall but made no finding as to what period of time this involved. 60In relation to future impaired earning capacity, the appellant complains that the judge accepted certain medical evidence as to limitations on the respondent's fitness for employment but erroneously declined to accept the same witness's limitation on the loss to a period of 12 months, erroneously concluded that the respondent did not have the skills to enable her to do the "secretarial work" and failed to conclude that the reason the respondent was not in remunerative employment at the time of trial was that she was not in fact looking for employment and was not available to pursue employment within her physical limitations. 61It is necessary to examine aspects of the evidence not so far mentioned.

[11]

Evidence of treating doctors 62The fall occurred in the early evening of 22 May 2010. The respondent consulted a general practitioner, Dr Lele, on 25 May 2010 and made a return visit on 18 June 2010. Dr Lele wrote a letter of 11 November 2010 in which she recorded both visits. On the first occasion, the respondent complained of pain in the right arm and ankle. The doctor observed bruises on the arm but no swelling or tenderness of the ankle. On the second occasion, there was pain in the right arm after waking in the morning after a full day's work. There was no bruising. Movement of the shoulder and elbow were normal. There was no swelling. The patient also reported pain in the lower back. Neurological examination was normal, as were straight leg raising and range of movement of the spine. Voltaren was prescribed. 63The respondent saw another general practitioner, Dr Nalder, on 5 June 2010. The respondent informed Dr Nalder that she had injured her right elbow, lower back and right ankle in a fall at a supermarket. On examination, the respondent was found to have full range movement in the identified areas with no leg pain. The respondent saw Dr Nalder again on 3 December 2010. On examination that day, the doctor observed central obesity with a BMI (or body mass index) of 30.5, with the right elbow, right shoulder and lower back completely normal. There were no symptoms or signs of neurological problems in the lower limbs. A letter from Dr Nalder dated 3 December 2010 concluded: "It is my opinion that she is suffering from soft tissue pain in all areas related to her lack of fitness and perhaps muscular deconditioning due to the injuries she sustained followed by transient avoidance of aggravating activities of daily living. I recommended that she see an exercise physiologist for a posture and core assessment and conditioning program to also assist weight loss and she said she will take this up with her regular GP and be referred in her local area. Prognosis for full recovery is good and she is fit for preinjury work now, given that she is working 5 days a week now, whether for her husband or for the legal firm who employs her." 64The respondent accepted that Dr Nalder had recommended that she see an exercise physiologist to assist her with her posture and core strength and to undertake a conditioning program to assist in weight control (the respondent was, at all material times, overweight). 65Neither Dr Lele nor Dr Nalder ordered an x-ray or recommended physiotherapy. The only treatment was analgesic. 66At a much later stage, Dr Velickovski, another doctor in Dr Nalder's practice, referred the respondent to Dr Dalton, a specialist in rehabilitation medicine. The respondent saw Dr Dalton on 1 June 2012. Dr Dalton sent a written report to Dr Velickovski. After recording the history given to him by the respondent, Dr Dalton said: "Based on the history I would have thought that she suffered little more than a minor soft tissue injury to her hip and back and also a soft tissue injury to her shoulder. I think it is highly unlikely that she sustained significant injuries at that time. She now presents with low grade mechanical back pain and mild activity-related pain in the right shoulder which may reflect a mild underlying cuff tendinopathy. She does not display any pain or illness behaviour and her main problem seems to be that she is quite deconditioned and has not undertaken any formal exercise programme to date. She is very keen to return to the job. I suspect one of the problems was that she had not worked for a number of years and given that she is still quite deconditioned I suspect that she will still have problems if she starts doing a lot of lifting and carrying of files. She really needs to build up her strength and endurance and I have written a letter to her personal trainer at the gym suggesting more emphasis on core stability, a rotator cuff and scapular strengthening exercise programme." 67Dr Dalton was cross-examined. He confirmed that the respondent was lacking in flexibility and muscle strength. He could not say whether that condition developed before or after the fall. He recommended that she lose weight and get fit and made specific recommendations regarding the type of exercise to be undertaken. He was of the opinion that those measures would help her "low grade mechanical back pain". 68The respondent accepted that Dr Dalton had given her a letter to a personal trainer. She did not retain the services of a personal trainer as recommended. She had been attending a gym and had seen personal trainers there. She said she did not feel comfortable with them. That, plus the cost of $80 per session, caused her not to seek to retain a personal trainer. 69Dr Lele, Dr Nalder and Dr Dalton are the only treating practitioners whose assessments and contemporaneous accounts were in evidence. Beyond that, there was evidence from five practitioners retained to prepare medico-legal reports for the purposes of the proceedings.

[12]

Evidence of medico-legal witnesses 70Dr Conrad saw the respondent in March 2011. He expressed the opinion that the respondent had injuries to her elbow, shoulder and spine representing 25 per cent permanent impairment of the back and 25 per cent permanent loss of efficient use of the right arm above the shoulder. He foresaw a need for sporadic physiotherapy and, if the condition deteriorated, MRI scans to "rule out any internal derangement". Dr Conrad's opinion in March 2011 was that the respondent was fit for work in limited circumstances (light secretarial work, nine to ten hours a week in a position with sitting and standing flexibility, no lifting over 5 kg and no lifting of anything heavy with the right arm). 71Dr Kwong also saw the respondent in March 2011. He diagnosed right shoulder pain (complicated by adhesive capsulitis or inflamed tissue) and lumbar strain. Three relevant conditions were said to be "resolved" - cervical strain, right knee strain and right ankle strain. Dr Kwong's opinion at that point was that the respondent had a heavy lifting restriction of 2 kg and needed to avoid duties involving bending or twisting of her back. There was also a need to avoid heavy overhead activities and for a break of five minutes every hour. Dr Kwong recommended MRI to exclude certain possibilities and said that the respondent would benefit from a course of physiotherapy and hydrotherapy followed by a "gym based exercises and strengthening program". 72Dr Edwards saw the respondent in May 2011. Based on what she told him and his examination of her, Dr Edwards could find no objective clinical evidence of any abnormality. Examination of the spine and shoulder showed them to be normal. Dr Edwards was of the opinion that there was no disability as a result of the fall. These observations in Dr Edwards' report were confirmed in cross-examination. He said that he could not reproduce any pain on examination and that the fact that the respondent felt pain could not be explained on the basis of her injury, there being no known pathology. 73Dr Barrett saw the respondent in November 2011. The respondent complained of back pain and shoulder pain that disturbed her sleep. The only anomaly detected on examination was slight discomfort on rotation of the neck to the right. He said that she had appeared to have sustained soft tissue injuries to the spine, right shoulder and right elbow in the fall on 22 May 2010 but there were "minimal findings on physical examination". He recommended weight loss, gentle exercise and Panadol. He assessed her as able to work as a legal secretary for 20 to 25 hours per week provided that she lifted in a standard manner. She was judged capable of lifting weights up to 10 kg. 74Dr Harvey-Sutton saw the respondent in December 2011. Dr Harvey-Sutton's opinion was that soft tissue injury was sustained in the fall. Nothing of note was observed on examination but the opinion was expressed that the initial injuries and present complaints were referable to the fall. The respondent was pronounced fit for work with restrictions, specifically, avoidance of heavy repetitive lifting greater than 8 to 10 kg, avoidance of confined or awkward spaces, avoidance of sustained work at mid-chest level or above' care in activities involving extreme movement of the neck, avoidance of sudden or repetitive moves of the neck or static neck postures, avoidance of situations of vibration and avoidance of repetitive bending, stooping, lifting, pushing, pulling, dragging or twisting. Dr Harvey Sutton made the following observations: (a) "Sequelae from the incident have not curtailed her working life"; (b) "She requires a dedicated reconditioning exercise program and has loss of earning capacity for a further 12 months [from December 2011]"; (c) "The prognosis is good, if she has an appropriate physical reconditioning exercise program following the deconditioning as a direct result of the nature of the soft tissue injuries sustained in the subject accident". 75The respondent said that Dr Harvey-Sutton had recommended pilates but she had taken no action towards taking any pilates course. 76Each of Dr Conrad, Dr Kwong and Dr Harvey-Sutton prepared a supplementary report - Dr Conrad in December 2011, Dr Kwong in November 2011 and Dr Harvey-Sutton in July 2012. None had conducted any further examination. Each had been asked to address further specific questions as to whether the respondent, as a result of her injuries, disabilities and impairment, would be at a disadvantage in the open labour market compared with a person who is injury-free; whether the fall would have a negative effect on future earning capacity; and whether the respondent would require domestic assistance. Each medical practitioner was thus asked to address matters beyond objective assessment of physiological or clinical condition and to express an opinion on matters that arose for the determination of the court with the assistance of medical opinion. No weight should be given to the supplementary reports.

[13]

Lay evidence 77Evidence relevant to assessment of loss was given by the respondent, her husband and Ms Farhat whose role will be mentioned presently. 78The respondent was born in 1975, completed secondary schooling and attended Wollongong University for two years full time and about six months part time. She studied science but did not complete a degree. She had casual work as a supermarket shelf stacker while at university. 79The respondent moved to Townsville with her husband in early 2000. She worked there between 2000 and 2003, initially stacking supermarket shelves and later at Townsville General Hospital. Her first child was born in Townsville in 2004. Twins were born in 2005. 80After the family moved to Sydney, the respondent spent about three months working for the firm of solicitors of which her husband is a member. The work was of a clerical and administrative kind. That employment began in mid-2009 and involved 25 hours a week. The respondent's stated reason for giving up work after three months was that the cost of the necessary childcare was greater than her earnings. The employment came to an end some ten months or more before the fall at the appellant's supermarket. 81After all her children had started school, the respondent went back to a like position at her husband's firm. She re-joined on 1 June 2010, that is, less than two weeks after the supermarket fall. She continued on the basis of a working day from 9.30am to 2.30pm until the end of September 2010 at which point she went on sick leave for the skin condition accepted as being entirely unrelated to the supermarket fall. She did not return to work and the employment ended in October 2010. 82The respondent gave evidence that, as soon as she started work, she found that certain tasks caused her arm and back to ache. Lifting and carrying heavy files and sitting or standing for long periods were identified as activities with which she had difficulty. If sitting, she found it necessary to take a short break every hour or half hour. She had not had these problems during the earlier employment. After some time, the working hours were reduced. 83The respondent's supervisor in the office in 2010 was Ms Farhat, the senior secretary, although it seems that things that the respondent wished to convey to Ms Farhat were often in fact communicated through the respondent's husband, a solicitor with the firm. He was Ms Farhat's direct supervisor. 84Ms Farhat described the respondent's duties as "photocopying, hand deliveries, just every day correspondence and forms and administrative tasks". Ms Farhat said that the respondent was motivated and "tried her best" but in the end her best was not good enough. Asked what the problem was, Ms Farhat said: "She was slow, it took a long time to get through the work that was given to her, it wasn't - any other secretary given similar work, exactly the same work actually and they did it much faster and with less errors and stuff like that." 85Asked how long after the respondent's commencement she first noticed that the respondent was having difficulties, Ms Farhat said: "I really started noticing not too long after, to be honest, it would have been a few weeks or so. I mean when someone starts off they are always going to make mistakes and you know they are not going to be as efficient as [sic] doing the tasks assigned to them but it just wasn't getting any better." 86The respondent's typing speed was "ok" but not as good as that of some other employees. She was able to make appointments, fill in forms and complete typing work. 87Ms Farhat confirmed that the respondent sometimes had difficulty carrying large files and sometimes could take only two rather than three or four in a single trip to or from storage. Some of the files were five or six kilograms in weight. 88The respondent's husband testified that there were "many occasions" on which the respondent's duties at his firm "required her to engage in strenuous bending, stooping, lifting, pushing, pulling, dragging or twisting". He did not identify things that had to be pushed, pulled, dragged or twisted in the course of the duties of a legal secretary or paralegal; nor did the respondent or Ms Farhat. The only lifting referred to by any witness was the lifting of files and briefs, some of which were large. 89The respondent gave evidence of limitations on her activities of normal daily life. She referred to pain in the arm or back that developed when she carried her children's school bags and scooters. The pain could be relieved completely by use of painkillers. She was not aware of these problems before the fall. The respondent accepted that she had gained weight since the fall because she had been less active, that she had begun attending a gym and that she was not experiencing any benefit from activity there. 90The respondent did not employ any domestic help before the fall. After the fall, she retained the services of a house cleaner because she was not able to do the cleaning as she had previously; but no cleaner had been employed since the family moved to the house they were occupying at the time of the trial. The respondent referred also to rubbish removal and lawn mowing being undertaken by contractors. She was herself able to cook meals, although had problems if a great deal of chopping was involved. She took her children to and from school, sometimes carrying their school bags. She had no problem carrying one bag but sometimes experienced pain after carrying three. She confirmed that her husband spent ten hours a week more on domestic work than he had done before the fall, covering a range of domestic tasks. The husband, in turn, confirmed in his evidence that he rendered such domestic assistance, including with cooking. 91The husband's evidence was notable for his confirmation that, as at the time of the trial (early August 2012), no house cleaner had been employed "since the beginning of the year" - no doubt a period of seven months or more - and that he and the respondent had managed themselves during that period to do whatever needed to be done.

[14]

Non-economic loss - the judge's assessment 92The primary judge concluded that, in terms of s 16 of the Civil Liability Act, the severity of the respondent's non-economic loss was 20 per cent of a most extreme case. 93The judge accepted that the respondent had the symptoms of which she complained and did not regard the medical evidence as challenging that. He noted that there was a question whether the symptoms resulted from the fall or arose as a result of her build; and that medical evidence "does support the view that the plaintiff has symptoms because of her build and this is unrelated to the injury". He then said: "I do not accept that evidence. I prefer the evidence that the plaintiff's symptoms result from the fall." 94Reference was then made to the evidence of Dr Conrad and Dr Harvey-Sutton as consistent with that conclusion; and to the fact that none of the other doctors specifically said that the conditions of which the respondent complained did not arise from the fall. 95There was then the question of the severity of the injury. On this, his Honour said: "Whilst it is possible that the plaintiff has some underlying pathology, I think the weight of the medical evidence supports the view that she suffered soft tissue injuries. The plaintiff has now had her symptoms for over two years. She is deconditioned. However, she was deconditioned for many years before the fall. This was a fall that happened to a deconditioned person. It is like the 'egg shell skull'. It is likely that the plaintiff will continue to have symptoms for some time. I think Dr Harvey-Sutton's prognosis is somewhat hopeful. If she was saying that the plaintiff was likely to have a loss of earning capacity for a further 12 months and no longer, that is not being borne out by the events that have occurred. That opinion was offered about eight months ago and the plaintiff's condition has remained much the same. I think the plaintiff is likely to have ongoing symptoms for some time yet. How long is impossible to predict. I expect them to continue for several years before there is improvement and, eventually, resolution. In the assessment of non-economic loss, it is necessary to relate the plaintiff's condition to a most extreme case. A most extreme case might be any number of objective cases such as quadriplegia or profound brain damage. In all the circumstances, I think the plaintiff should be assessed at 20%. Under s 16 of the CLA, that would allow her $18,000."

[16]

Discussion and decision on non-economic loss 99In submitting that the assessment of 20 per cent of a most extreme case was erroneous (and that the correct figure is less than 15 per cent), the appellant first relies on what it says was a factual error by the judge. It concerned the respondent's deconditioned state, that is, her lack of physical fitness, muscle tone and the like. Dr Dalton explained in cross-examination that obesity is associated with deconditioning but that the two do not always occur together. For example, Sumo wrestlers are obese but usually have high degrees of conditioning and stability. So, while body size may be an indicator of deconditioning, a part is also played by flexibility, muscle strength and other factors that cannot be gauged from a photograph. 100The medical evidence showed that the respondent was in a deconditioned state after her fall. The judge said that "she was deconditioned for many years before the fall"; and that the fall "happened to a deconditioned person". The judge appears to have inferred that the respondent, because of her prior deconditioned state, was more prone than most other people to deleterious effects of the fall. 101The appellant contends that there was no foundation in the evidence for the conclusion that a deconditioned state had existed for many years before the fall and that the inference was not available. There is merit in that contention. The evidence (in the form of photographs taken at various times at and after the respondent's wedding in 2001) shows that the respondent was of large build for several years before the fall. But, as the medical opinion made clear, deconditioning is not a necessary concomitant of being overweight. People who are overweight and exercise adequately are generally not deconditioned. The respondent's appearance in and after 2001 is, of itself, insufficient to ground a finding a deconditioned state. 102None of the medical practitioners whose assessments were in evidence spoke of the respondent having been deconditioned before the fall. Several (Dr Nalder in December 2010, Dr Harvey-Sutton in December 2011 and Dr Dalton in June 2012) referred to her having been deconditioned when seen a considerable time after the fall. Of those, two offered opinions as to when the deconditioned state arose. Dr Harvey Sutton referred to the need for "an appropriate physical reconditioning exercise program following the deconditioning as a direct result of the nature of the soft tissue injuries sustained in the subject accident" (emphasis added). Dr Nalder, in his letter of 3 December 2010, referred to "lack of fitness and perhaps muscular deconditioning due to the injuries she sustained" (emphasis added). Dr Dalton, in the course of cross-examination, accepted that he did not know what the respondent's conditioning was like before the fall. There is accordingly no evidence indicating that the deconditioned state predated the fall. The judge's finding to that effect is therefore not supported by the evidence which, insofar as it touches on the subject, suggests that deconditioning followed the fall. 103A number of other factors emerging from the evidence also call into question the assessment of 20 per cent of a most extreme case under s 16 of the Civil Liability Act. They may be summarised as follows:

Upon examination in May and June 2010 (immediately after the fall), the respondent was found to have bruising of the arm but not elsewhere; movement of the elbow and shoulder was normal; gait was normal; and there was no leg pain and no swelling or tenderness of the ankle.
Upon examination in December 2010 (some six months after the fall), the respondent's elbow, shoulder and lower back were found to be completely normal, with no symptoms or signs of neurological problems in the lower limbs.
Upon examination for medico-legal purposes in March 2011, there was some diagnosis of shoulder pain, lumbar strain and discomfort on rotation of the neck, despite resolution of other difficulties, but the main problem was the need for a program of reconditioning and strengthening. Some need to avoid particular forms of action was foreseen, including heavy lifting. 104The particular point emphasised by the medical evidence is that the respondent's injuries as a result of the fall were soft tissue injuries of a minor kind and that such continuing difficulties as she experienced came from her deconditioned state (including lack of muscle tone) which was itself wholly or predominantly attributable to inactivity after the fall but was amenable to resolution by a program of physical exercise. The respondent gave evidence that, although she sometimes attended a gym, she had not sought in any concerted way to seek the means of resolution recommended by the doctors - indeed, that she had chosen not to follow the medical advice. That indicates both ability and willingness to live with whatever consequences there may have been. 105When the respondent's position is measured against the definition of "non-economic loss" in s 3 of the Civil Liability Act, it is seen that there was no disfigurement, no loss of expectation of life, very minor pain and suffering, very minor loss of amenities of life and every prospect of an early and complete recovery - with resolution of ongoing issues of deconditioning a matter that was very much in the respondent's own hands but something that she was apparently unwilling to undertake. Indeed, on the evidence, she had no real need to undertake it as she was functioning satisfactorily, although with a proneness to some pain after certain forms of activity. There was some inconvenience in daily activities but it was minor. The pain was wholly controllable with medication. 106The degree of severity of non-economic loss was very modest. It fell very far short of "a most extreme case". One might be tempted to view it as approaching "a least extreme case". The question on appeal is that identified by Handley JA in Dell v Dalton (1991) 23 NSWLR 528 at 534, that is, whether the conclusion of the trial judge ought to be disturbed according to the ordinary principles governing appellate review of awards of damages for personal injuries. Those principles were identified by members of the High Court in Wilson v Peisley (1976) 50 ALJR 207. It is sufficient to refer to the judgment of Mason J who, after noting that the assessment of damages is "more like an exercise of discretion than an ordinary act of decision", said (at 214): "The settled rule, then, is that an appellate court will not disturb a primary judge's award of damages for personal injury unless it is convinced that he has acted on a wrong principle of law or that he has misapprehended the facts or that the amount of damages awarded is so inordinately low or so inordinately high as to be a wholly erroneous estimate of the damage suffered." 107In the present statutory context, the question is whether the degree of affectation found is so inordinately high as to be a wholly erroneous estimate of the degree of severity of non-economic loss. 108In my opinion, that question should be answered in the affirmative. The severity of the respondent's non-economic loss was, at most, 10 per cent of a most extreme case. An assessment of 20 per cent was demonstrably excessive. The threshold imposed by s 16(3) of the Civil Liability Act was not satisfied and there should have been no award of damages for non-economic loss.

[17]

Discussion and decision on economic loss 109The complaints of the appellant under this heading go to the matters of future domestic assistance and assessment of earning capacity, both past and future. 110In relation to domestic assistance, the judge made no allowance for the past (being of the opinion that the threshold imposed by s 15 of the Civil Liability Act was not satisfied) but allowed future domestic assistance on the basis of a commercial rate of $26.66 per hour. The allowance at that rate was four hours per week (a total of $106 per week). The award was a "buffer" of $30,000 which indicates a period of six to seven years. 111The appellant makes two valid points about this award. First, the evidence was that no commercial home help had been employed for about seven months before the trial; and, second, both the respondent and her husband had given clear evidence that, to the extent that the respondent was unable to perform household tasks, her husband effectively and willingly provided all assistance that was required. 112The primary judge did not refer to these aspects of the evidence. In addition, there was no evidence that the assistance provided by the husband would cease to be provided or that he would in future act otherwise than gratuitously. It follows that the award of future paid commercial assistance was erroneous and should be set aside. 113I turn now to the matter of past and future loss of earning capacity. The judge allowed $15,000 for past loss of earning capacity and $50,000 for future impaired earning capacity, both amounts being inclusive of superannuation. 114The respondent did not accept that the skin condition unrelated to the fall had prompted her departure from her husband's firm at the end of October 2010, although it is clear that the onset of that condition coincided generally with the departure and that the condition continued until the end of May 2011. 115The central issue was whether the respondent was, from, say, May 2011, able to perform the kind of work she had been performing at her husband's firm in the period of about four months from June 2010. The appellant submits that the judge's decision was quite at odds with the opinion of Dr Harvey-Sutton of December 2011 that the prognosis was good and that there was "loss of earning capacity for a further 12 months" from December 2011; the opinion of Dr Nalder (June 2010) that the respondent was fit to continue doing the work in which she was engaged at the time of the report; the opinion of Dr Lele (June 2010) that the respondent's prognosis was good; and the opinion of Dr Barrett (November 2011) that the respondent could work as a legal secretary or assistant for 25 hours per week subject to a lifting restriction. 116There is clear merit in that submission. While the particular opinions concerned work as a legal secretary or legal assistant, they would logically extend to any office job of an administrative kind for which the respondent's experience at Townsville Hospital would make her suitable. I say this because I regard as irrelevant the debate in submissions about whether, in light of reservations in Ms Farhat's evidence, the respondent had the skills needed for the particular position she occupied at her husband's firm. The real issue goes to fitness for work to which she was suited by training and experience and, if that does not clearly extend to work as a legal assistant or legal secretary, it should be taken to extend generally to administrative office work. 117Having regard to the medical opinions, the judge should have concluded that the respondent was fit to engage in remunerative work of a kind indicated by her training and experience by, at the latest, the end of 2012. That was the time nominated by Dr Harvey-Sutton whose opinion was the most conservative. Other doctors foresaw a return to suitable work at an earlier time. 118In relation to past economic loss, there should have been recognition that the skin condition unrelated to the fall would have kept the respondent away from work from October 2010 until May 2011 and the award of $15,000 should be reduced accordingly. In relation to future economic loss, the finding in the judgment of August 2012 should have been that unfitness for work attributable to the fall would come to an end at the conclusion of 2012, so that an award of, say, five months was appropriate.

[18]

Conclusions 119For the reasons I have stated, the respondent, as plaintiff, failed to establish at trial matters essential to a conclusion that the appellant was liable in negligence for such loss and damage as she suffered when she fell at the appellant's supermarket. She did not establish that she trod on a piece of cardboard on the floor or that, had she done so, the evidence would have warranted a finding that the placing of her foot on the cardboard caused her to slip. These conclusions mean that the appeal must be allowed. 120Even if liability had been established, the appeal would have been allowed to the extent of reducing the damages awarded by: (a) eliminating the award for non-economic loss; (b) eliminating the award for domestic assistance; and (c) reducing the award for past and future economic loss as stated at [118] above. 121I propose orders as follows:

Appeal allowed.
Set aside the judgment and orders of the District Court of 29 August 2012.
In lieu thereof, order that the proceedings in the District Court be dismissed with costs.
That the respondent pay the appellant's costs of the proceedings in this Court.
Grant to the respondent a certificate under the Suitors Fund Act 1951 if qualified. 122WARD JA: I agree with the reasons of Barrett JA and the orders his Honour proposes. 123EMMETT JA: This appeal is concerned with a claim by the respondent that she suffered injury as a consequence of a fall in the appellant's supermarket at Neutral Bay. She claimed that the fall occurred because of a breach of the duty of care owed to her by the respondent as a customer in its supermarket. I have had the advantage of reading in draft form the proposed reasons of Barrett JA. I agree with the orders proposed by his Honour for the reasons given by his Honour. 124In particular, I agree with the conclusion of Barrett JA that the evidence failed to establish that there was a sufficient causal connection between the respondent's fall and an alleged breach of its duty of care on the part of the appellant. It was accepted that the respondent slipped and fell while shopping in the respondent's supermarket. She said that, after her fall, she saw two small pieces of cardboard on the floor. The primary judge found that the cardboard on the floor constituted a slip hazard and that it was more likely than not that the fall was occasioned by the presence of the cardboard. That conclusion was based on opinion evidence of a Mr Fogg. 125I agree with Barrett JA's assessment that Mr Fogg's opinion evidence was of no assistance in deciding whether the risk of injury from slipping on cardboard was not insignificant, as referred in s 5B(1)(b) of the Civil Liability Act 2002. The respondent adduced no other evidence to prove that the risk of leaving cardboard on the floor of the supermarket, whether left there by the appellant's employees or its customers, was a not insignificant risk. The respondent therefore failed to establish facts necessary to support the conclusion that the appellant was liable in negligence for any loss that she suffered when she fell. 126I also agree, for the reasons given by Barrett JA, that, even if liability had been established, the appeal would have been allowed by reducing the quantum of damages. The amount of damages would have been reduced by eliminating the amounts for non-economic loss and domestic assistance and by reducing the amount for past and future economic loss, in the manner indicated by his Honour.

Coles Supermarkets Australia Pty Ltd v Meneghello

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (19 paragraphs)

Parties

Cases Cited (14)