Fatma Abdel Razzak v Coles Supermarkets Australia Pty Ltd

District Court of NSW|2017-05-26

Thomas Booler Lawyers for the plaintiff Wotton & Kearney for the defendant File Number(s): 2016/142308

Introduction

These proceedings involve an allegation of a slip and fall in the Coles Supermarket at Hurstville. By a Statement of Claim filed on 9 May 2016 the plaintiff Ms Fatma Abdel Razzak alleges that on 11 April 2015 she slipped and fell in the fresh produce section of the Coles Supermarket at Hurstville. The fall happened at about 11.30am when Ms Razzak was doing her shopping at a supermarket which she had visited for many years. Her case is that she slipped on grapes which were on the floor of the fresh produce section.

Evidence of the Plaintiff

The plaintiff gave evidence with the assistance from time to time of an Arabic interpreter. I formed the impression that her English was fairly basic and she needed the assistance of the interpreter to understand complicated or abstract questions, and to express herself fully from time to time. I formed the impression from observing the plaintiff that she was doing her best to give evidence from her memory. However I do not accept that her evidence about her injuries was accurate, for reasons which appear below.
The plaintiff gave evidence-in-chief about a large number of medical problems which pre-dated the accident, although in cross-examination she was taken through a much more detailed list of her previous problems.
The plaintiff gave evidence-in-chief that she attended the Coles Supermarket at Hurstville between 11.00am and 12.00pm on the morning of Saturday 11 April 2015. She was in the fruit and vegetable area and walked towards a table to pick up some produce. There was a staff member unloading bags of grapes and stacking them onto a table. She stepped around the staff member and her feet lost their grip on the floor. Her right foot went backwards and she plunged forward onto her knees and elbows.
The plaintiff gave evidence that there was no mat on the floor in the area where she fell. After she got up she saw some squashed grapes on the floor, where her foot had slipped. The plaintiff marked the position of her walking path, and the location of her fall, on a photograph (Exhibit PX5 - top photograph).
Straight away she felt a pain in her knees and became quite agitated. The staff got her a chair and she sat in that for a while. The plaintiff said that the manager came to the part of the store where she fell and said words to indicate that there was no mat there, the floor should be cleaned and a mat should be put on the floor. She then went to the manager's office where she was asked questions about the incident. After she had spoken to the manager in his office, she noticed that a mat had been placed on the floor where she had fallen, and the floor had been cleaned up. Her son was called and he came to pick her up from the supermarket.
On the Monday after the fall she went to her regular GP Dr Alameddin. That doctor sent her for an x-ray.
About two weeks after the accident the plaintiff returned to Coles Hurstville to get a copy of an Incident Report Form, which Coles had filled out on the day of her accident. She needed the Incident Number so that she could write to the parent company for Coles concerning medical bills. She also took that form back to her GP Dr Alameddin.
The plaintiff said that she had had knee pain before the accident, as well as shoulder, neck and back pain. In-chief she said that all those pains were worse after the accident. The plaintiff's son was her full-time carer, but this had been the case even before the Coles incident. The plaintiff had been through a distressing marriage break-up and had been the victim of domestic violence. She had suffered depression as a result, and this combined with her pre-existing physical ailments mean that she could not do much for herself around the house. Thus her youngest son was given a carer's pension to look after her.
The plaintiff was cross-examined by counsel for the defendant, who took her carefully through her pre-accident medical history. This had largely been gleaned from documents produced under subpoena by Dr Alameddin, and by the previous GP Dr Amin. Those documents were tendered by the defendant (Exhibit DX1). That history was summarised in the defendant's chronology (Exhibit DX5) which was carefully put to the plaintiff by Mr Jensen. The plaintiff agreed with just about every proposition put to her concerning her pre-accident state of health.
The plaintiff was in a motor vehicle accident in 1994 and from that time on had pain in her lower jaw and her back. She attended a pain management centre in 1998. She then complained of having pain from the top of her head down to her neck, the right arm and the lumbar region. In 1999 she saw doctors for the purpose of applying for a disability pension. She told those doctors that she had pain in the neck, the shoulders and the back. The plaintiff was informed that she had degenerative changes in the spine. Dr Amin in 1999 provided a certificate to assist the plaintiff in applying for the disability pension. The plaintiff's problems were listed by Dr Amin as jaw pain, a lumbosacral disc injury, pain in the shoulder and pain in the neck. The plaintiff was also suffering from depression and dizziness with tension headaches. In 1999 the low back pain was moderate to severe and the plaintiff could only sit for 15-30 minutes. There was nerve tingling in both legs. The right knee was a greater problem than the left knee.
The plaintiff never went off the disability pension and agreed that her pain was still with her right up until the time of the accident. In 2007 she saw Dr Amin complaining of pain to the right shoulder and the neck. She also complained of pain behind the knee. In 2008 there was swelling and inflammation in the left knee.
The plaintiff saw an orthopaedic surgeon Dr Sekel in June 2008, at which time an MRI of the left knee showed a small tear of the medial meniscus. Around that time Dr Amin diagnosed a condition in the knees called chrondromalacia patellae. The plaintiff complained to Dr Amin in October 2008 of back pain, with sciatic pain down the right leg. Such attendances on Dr Amin continued in subsequent years. The plaintiff changed doctors in July 2010 to Dr Alameddin. The plaintiff complained to that doctor in March 2011 of neck pain and was sent for a neck x-ray. The plaintiff fell and hit the back of her head on 6 June 2011 after she slipped on water on a floor. Back pain and radiation down the right leg were reported in August 2011. In April 2012 the plaintiff complained to Dr Alameddin of left knee pain and left ankle pain. In that month the plaintiff approached Dr Alameddin requesting assistance in obtaining documentation in support of a carer's pension, so that the plaintiff would have someone to care for her. The carer's pension was awarded to her youngest son shortly afterwards.
The plaintiff suffered physical domestic violence at the hands of her husband in December 2013, during which she hurt her neck again. In January 2014 Dr Alameddin, after a CT scan of the neck, told the plaintiff that she had a disc problem in the cervical spine. In that same month the plaintiff complained to Dr Alameddin of knee pain.
The plaintiff acknowledged in cross-examination that whenever she went to doctors and was worried about something she told the doctors about her problems. In March 2015 she reported numbness of her knee and ongoing knee problems.
The plaintiff attended Dr Alameddin after the incident in Coles. She said in cross-examination that she told her doctor about all of the injuries she suffered in the fall. The initial recorded complaints were of pain in the right knee and the left knee, and pain in the left elbow. She was initially sent for x-rays of the knees. Those complaints of knee pain continued in May and June 2015.
The plaintiff agreed that the first time she mentioned neck pains to Dr Alameddin, after the Coles incident, was on 24 June 2015. Further, she agreed that the first time she mentioned back pain after the Coles incident was on 4 August 2015.
The plaintiff was cross-examined concerning the events of 11 April 2015. She confirmed that she went to the office and spoke to a man who typed a statement into a computer, as she talked to him. It was suggested that she had told the man that she fell on herb leaves, but the plaintiff insisted that she told the manager that she fell on grapes. The plaintiff said that she was not walking along the aisle shown in a photograph where there was lettuce, herb leaves and grapes stored in racks along a long wall of the store. Instead, the plaintiff reiterated that she fell in the area of a display tray, in a part of the store where there was no mat in front of the tray. The plaintiff first told Dr Alameddin on 13 April 2015 that she slipped on grapes. The plaintiff was confronted with the fact that Dr Alameddin had recorded on 3 June 2015 that she slipped on herb leaves. I find that the explanation for this is that by that stage Dr Alameddin had been given a copy of the Coles incident report form which recorded that the plaintiff had slipped on herb leaves, and the doctor simply reproduced that version in his notes.
The plaintiff said that she obtained a copy of the report so that she could get an incident number and then write to Coles. The letter to Coles was written by her son on her instructions. In the letter the plaintiff had said nothing about any injury to her neck, back or shoulders. Nor did she mention that a mat was missing.
The plaintiff's son Mr Osama Abdul Razzak gave evidence. He is his mother's full-time carer. He is the youngest son. The plaintiff was very restricted in the amount of housework she could do even before the accident.
Mr Razzak estimated that for the first two months he had to perform an extra 1-1½ hours of work per week to assist his mother. After the first two months this dropped down to about an hour per week.
Mr Razzak typed the letter which was sent on behalf of his mother, based upon what his mother told him to put in the letter.
After Mr Razzak finished his evidence, counsel for the plaintiff very sensibly and properly abandoned the claim for gratuitous attendant care services under Section 15 of the Civil Liability Act 2002, as the claim did not reach the hourly threshold.

Written Reports

The Coles Incident Report is dated 11 April 2015. It has some curious features. The Site Manager is said to be Matthew Wallace, but he was not on duty at the supermarket on the day of the incident. The report contains the following description of the incident: "Customer slipped on herb leaves. Area was cleaned afterwards. Bruise to left knee. First Aid. No emergency services."
The report stated that the plaintiff was wearing flat closed shoes. In response to a question "Was incident captured on CCTV?" the report recorded "No". Nothing was filled in on the report form relating to any investigation, and the section of the report on which Coles could list contributing factors was left blank. While the name of Matthew Wallace appeared as the site manager who signed off the report, there was no actual signature or date on the version which was tendered.
The letter typed by the plaintiff's son stated that the plaintiff was in the fresh produce selling area and was walking when she suddenly slipped and fell knees first to the ground. She felt a sharp pain in both knees, the left arm and was very embarrassed. She went into shock. When she got up she saw grapes under her feet on the ground.

Evidence for the Defendant

Mr Nathan Batte was the fresh produce manager at the Hurstville store on the day of the incident. His job was to unload trucks, break down the pallets of goods, assess how his team members were working and making sure they were doing the right thing. The role of the team members was to fill the shelves, spot check and clean the floor and deal with any spills.
He gave explanations of what was in various Coles procedure documents and manuals which were tendered. He said that all team members were to spot check the floors and if there was a spill a team member was not allowed to leave the spill while another employee was sent away to get a wet floor sign, a bucket and a mop. He said that spot checking involved keeping an eye on the floor because in the fresh produce section there were leaves and other material which could fall on the floor. Every team member had to keep their eyes open as they were working and filling up the shelves, and be quick to clean up anything on the floor.
He said that the phrase used at Coles was "Clean As You Go" and that everyone in the store was instructed in that method from day one of their employment. He said that black non-slip matting was put down on the floor below the trays which stored items such as lettuce, herb leaves and grapes. He himself did a spot check of the floor about every 15-20 minutes as he was circulating around the fresh produce area.
Mr Batte had no particular recollection of the incident when the plaintiff said she was injured. It was put to him that there was no system of regular inspection of the floors, and he said that under the "Clean As You Go" policy it was the job of everyone who was out on the shop floor to check it all of the time. He denied that the system was haphazard and said that it resulted in regular checking of the floors. There was no record kept of the surveillance of the floors, because it was part of employees' duty to do it all of the time. It was very rare for there to be no-one on the shop floor of the fresh produce section.
Mr Batte conceded that a grape or two could have been left on the floor but said that most of the time there was nothing left on the floor. If the plaintiff did slip on a grape, he could not explain how that could happen, if the floor was regularly checked and if there were non-slip mats near the high risk produce such as grapes.
I formed the impression that Mr Batte was doing his best to give his evidence honestly.
The defendant called Mr Nassrey Noon who was the store support manager at Coles Hurstville on the day of the incident. He was called from his office to the fresh produce area after a report that a lady had fallen next to the fresh produce case. When he got there she was not still on the floor but she was sitting in a chair. She said that she did not need first aid. He said that when he went there there was a mat in front of the display of grapes.
The evidence of Mr Noon about creation of the incident report was most unsatisfactory and I formed the impression that he was trying to exonerate his employer by seeking to attribute every statement in the incident report to the plaintiff herself. Of course, it is understandable that he would say that the plaintiff had, as recorded in the incident report, said that she slipped on herb leaves. I find that it is unlikely that she said so, because from the day she saw her doctor on the Monday after the incident onwards, the plaintiff has consistently said that she slipped on grapes.
Mr Noon was cross-examined about the part of the report which said: "Area was cleaned afterwards". Mr Noon insisted that everything on the form was written down based on what the customer told them. He therefore said that the statement about the area being cleaned afterwards was put there because that is what the plaintiff said. I find that highly unlikely and I reject it. I find that that was written on the Incident Report because Coles did clean the floor after this fall.
His evidence became even more unreliable when he was taken to that part of the report which recorded that there was no CCTV footage of the incident. Once again he asserted that that is something which the plaintiff had said and which was thus recorded on the incident report. I find it highly unlikely that the plaintiff would have even known that there were CCTV cameras in the fresh produce area, let alone that those cameras did not capture the incident. Time after time Mr Noon said that that was only recorded on the form because Mrs Razzak had said that there was nothing captured on CCTV.
I find that the truth is that, as Mr Noon later said, he did not check the camera to see whether or not it had recorded anything of the incident. The CCTV recordings were available for 21 days before they were overwritten. Well within the 21 days the plaintiff came back to the store to request a copy of the incident report, because she wanted to write to the headquarters of Coles to make a claim of some sort. There was thus time for any CCTV footage to be checked, but this was not done.
The defendant called Mr Mark Ralevski who was a team member in the fresh food department at Coles Hurstville on 11 April 2015. He said that he did not witness the incident but he was told about it by another worker. He went to the site of the incident where the plaintiff was still located along with Mr Noon and Mr Batte. There was nothing he could do so he went back to his normal duties.
Mr Ralevski was shown some photographs of the fresh produce area. On Exhibit DX7 he was asked to marked with an X the position of the plaintiff, when he came to the scene and she was still talking to Mr Noon and Mr Batte. He placed the X in about the same position as the plaintiff had marked her position on Exhibit PX5. However, Mr Ralevski, contrary to the recollection of the plaintiff, recalled there being a mat in that area, although one is not present in the photograph which was taken well after the event.
Mr Ralevski said that during the course of a working day he would walk past the table where the plaintiff alleged she slipped about every 10-20 minutes.
Mr Ralevski was cross-examined about the range of his duties. His primary task was to keep the vegetable and fruit displays full of product. When he needed more product he had to go out the back and bring it in on a trolley, but that took no longer than five minutes. He was responsible for putting product into a special promotional area, for putting together the promotional display of specials, for replacing missing price tickets and for cutting and trimming produce at the request of customers. He said that besides all these tasks he regularly walked around the floor and he followed the "Clean As You Go" policy. When he attended the area of the store where the plaintiff was talking to Mr Noon, he was 5-10 metres away and he could not hear what was being said.
During cross-examination of Mr Ralevski, Mr Stewart tendered a 7-page list of slips and falls which had occurred at Coles Hurstville between 23 May 2014 and 11 April 2015. Mr Ralevski had no knowledge of that document. The list became Exhibit PX6 and it lists 16 slip and fall incidents in that period, ending with the plaintiff's incident.
On 30 May 2014 there was an incident when a customer slipped on a grape at the store entrance. The customer did not fall and there were no injuries. On 17 November 2014 a customer slipped and fell on a grape in the produce department. On 29 November 2014 a customer slipped on a cherry pip in aisle 3. On 8 December 2014 a customer slipped on a grape at the entrance to the produce department. On 20 December 2014 a customer slipped on residue from a bean skin. Finally, on 11 April 2015 the document records the plaintiff's incident. The details clearly come from the incident report. There were thus 6 incidents in a year involving customers slipping on vegetable matter on the floor of Coles Hurstville. The record is not clear as to how many customers who slipped also fell.
There were various other slips and falls during the period covered by the document. These were often on liquids spilt onto the floor.
From that document I infer that in spite of the procedures of Coles concerning mats and checking and cleaning, vegetable matter from the fresh produce department still ended up on the floor, where customers slipped on that produce from time to time. That produce had fallen on parts of the floor not covered by mats.
The defendant called Mr Jordan Dolce, who also worked as a filler in the fresh produce department, like Mr Ralevski. He was taken through the Coles cleaning documents and said that they were part of his induction into working in the department in the first place. In relation to the theoretical situation where a small item of produce had dropped on the floor, his practice was, if he saw it, to walk towards it and pick it up immediately. He said that he had not read certain pages in the Coles cleaning documents, but did say that he had been trained and inducted into the necessary cleaning procedures.
He saw a lady on the floor on 11 April 2015 in the fresh produce section. He saw Mr Noon come up to her and speak to her. He had no other memory or involvement. He was asked to indicate where the plaintiff was when she was on the floor in the shop, and he indicated a position near the wall case, which is a different position to that indicated by the plaintiff and Mr Ralevski.
Mr Dolce said that he would walk past the wall case about every 7-10 minutes, and that he would walk past the aisle, where the plaintiff said she fell, about every 3-5 minutes. The area where the plaintiff said she fell was the super specials area. Because super specials were more likely to be sold, Mr Dolce spent more time there re-filling the trays.
Mr Dolce was cross-examined about the range of duties he had to fulfil as a filler. He said that grapes were sometimes sampled by customers who taste them, and sometimes they then fell on the floor. He agreed that this could happen often. He said that the mats were placed on the floor near the grapes, because spot checking of the floor would not be enough. He could not recall if mats were in place in the area where he recalled the plaintiff falling on 11 April 2015. His attention was drawn to the photograph Exhibit DX8 and to the fact that on the non-slip mat shown in the photograph there was vegetable produce on the mat itself. His explanation was that there must have been no employees in that area at the time the photograph was taken, because if any employee saw that produce they would definitely clean it up.
I formed the impression that Mr Dolce was a truthful witness.
The defendant called Mr Matthew Wallace who was the store manager at Hurstville as at 11 April 2015. He was not working at the store on that day, as it was his day off being a Saturday. He said that all team members had been trained when they started in the cleaning procedures mandated by Coles. This included a requirement that if a staff member saw anything that was dirty or unclean, they had to stop what they were doing and clean it up. His job was to make sure that all employees followed the Clean As You Go document and that the produce department was spotlessly clean at all times.
He gave evidence about the duties of the cleaning contractor, but it seems that the duty to keep the floor in the fresh produce area fell to Coles team members rather than the cleaning contractor.
In his role as store manager he was regularly on the shop floor checking that the team were following the Coles cleaning procedures.
In relation to CCTV cameras, he gave evidence-in-chief about the location of those cameras, but did not say anything about them being in the fresh produce area. In cross-examination he could not remember whether or not there were CCTV cameras in the fresh produce area.
The Coles cleaning procedure documents were tendered as part of Exhibit DX1. Inter alia they contained the following statements: 1. If something needs to be cleaned, even if it isn't on the list, don't wait, clean as you go. 2. The fresh produce department is spotlessly clean at all times. Team members work smart and always use the correct food safety and cleaning practices. 3. Make sure that Clean As You Go is a way of life for every produce team member. 4. Make sure the selling area floor is always kept clean and safe, including spotlessly clean slip-proof mats that are changed and laundered weekly. 5. Floor mats are cleaned daily by the cleaning contractor and sent to the supplier for laundering weekly. 6. Check that all team members understand and follow the correct cleaning processes as per the Clean As You Go cleaning guides and use the right equipment for each cleaning task. 7. Remove any produce that has fallen on the floor and clean up any spill from the floor before they become accidents.
Mr Wallace was cross-examined about whether, if a staff member had not read the cleaning guides, it could be said that his training had been deficient. Mr Wallace was insistent that this couldn't happen because if they were not following the cleaning guides, that is something he would have picked up in ascertaining whether each team member was doing their job properly.
He agreed that the mats are put in place in the fresh produce area to eliminate any hazards and because spot checking alone isn't a sufficient precaution.
He explained how his name came to be on the incident report. He had not seen the document or signed off on it, and the process was that his name was automatically inserted on the document because he was the store manager.
After the close of the case for the defendant Mr Stewart tendered more documents. Exhibit PX7 was an exchange of correspondence which noted that the following concession was made by the defendant: "Coles agree to make a concession for the purpose of this claim only that if the court finds that there was a contaminant on the floor such as grapes as alleged then the floor would have been slippery."

Factual Findings on Liability

The evidence of all witnesses was that the fall happened in the fresh produce area of Coles Hurstville at about 11-30am on Saturday 11 April 2014. I so find.
It is not surprising that in the circumstances none of the witnesses were paying any particular attention to the precise location of the fall. The plaintiff herself was distressed and embarrassed at having fallen. She was engaged in shopping just before the fall and would not have been taking any particular note of where she was in the store. The three employees who observed the plaintiff after the fall also would not have been particularly concerned with the location of the fall. Mr Ralevski supports the plaintiff in saying that the fall happened in an aisle which ran at right angles to the long display cases. Mr Noon, who said that the fall occurred near the long display cases was in my view an unreliable and unsatisfactory witness in several respects.
I find that the fall happened where the plaintiff said it did - in the aisle which ran at right angles to the long display cases. Mr Ralevski also said it happened there. I find that this aisle did not contain trays of grapes for sale. The grapes were in the long display cases.
One common element in the evidence of all four witnesses is that the fall did not happen on a mat. While the store employees said that there were mats in the vicinity of the fall, the evidence of all Coles employees was that they were non-slip mats. I find that there was no mat where the plaintiff slipped.
The evidence of the Coles employees was that it was not an uncommon experience to find vegetable matter, particularly grapes, on the floor of the fresh produce area. This evidence is corroborated by the fact that there had been several falls in the year prior to that of the plaintiff, where a customer slipped upon vegetable matter on the floor of the shop, often upon grapes.
The photographs of the store, taken long after the event, show that in the fresh produce area there are mats placed at some locations, but most of the floor is not covered by mats.
I therefore find that the fall occurred on an area of the floor in the fresh produce store not covered by non-slip mats.
I further find that the plaintiff should be believed when she says that she slipped on grapes. The plaintiff said that consistently to her doctors.
Dr Alameddin at one stage recorded that she slipped on herb leaves, but I find that this came from Dr Alameddin seeing the recording of herb leaves in the Coles Incident Report form. I find that that statement, like several others in the Incident Report, came from a Coles employee and not from the plaintiff. As previously expressed, I have great difficulty in accepting the accuracy of much of the material recorded in that report form.
Further, it does not matter in my view whether the plaintiff slipped on grapes or herb leaves. She slipped on vegetable matter on the floor of the fresh produce area. I have accepted her evidence and found that she slipped on grapes.
I further find that the area where the plaintiff fell was cleaned after her fall. This is recorded in the Coles Incident Report form, and I find that that information in the form came from Coles rather than from the plaintiff. If the plaintiff had said that in the office, and Mr Noon disagreed with it, there is ample space on the form for him to record such disagreement. He did not.
The only reason in my view why the floor would be cleaned after the fall was that there was something on the floor which needed removal. I find that this was the squashed grapes.
I find that Coles did have in place, on the day of the incident, a cleaning procedure in the fresh produce area set out in the documents which are part of Exhibit DX1. I accept the evidence of the Coles employees that all were trained in the "Clean As You Go" procedure. I accept the evidence of all Coles employees that whenever they were out on the shop floor in the fresh produce area they not only attended to their main task of keeping the shelves full of stock, but they also observed the floor by visual spot checking.
I find that all of the Coles employees who gave evidence were conscientious employees who, if they had have seen something on the floor, would have cleaned it up in accordance with their training and the Coles policy.
That leaves the crucial factual issue of how long the grapes, upon which the plaintiff slipped, had been on the floor. The plaintiff bears the onus of proving this matter. There being no direct evidence, the plaintiff can rely upon an inference as to how long the material had been on the floor, providing that such inference is the most probable inference available on the facts: Luxton v Vines [1952] HCA 19: 85 CLR 352 at 358.
Mr Batte did a spot check of the floor about every 15-20 minutes. Mr Ralevski did a spot check of the floor about every 10-20 minutes. Dr Dolce spot checked the floor near the wall case about every 7-10 minutes, and walked past the aisle where the plaintiff said she fell about every 3-5 minutes. He was in this area more often, as this was the super specials area, and he spent more time there refilling the trays than in other areas.
There was a fourth team member who would have been on the floor of the fresh produce area that day, but his absence from the witness box is satisfactorily explained by the affidavit of the defendant's solicitor. He was not well enough to give evidence. I do not draw a Jones v Dunkel inference in relation to this absence.
Given the factual findings which I have made about the Coles system of cleaning, the training given to the employees, and the fact that those employees in my opinion would have carried out spot checking of the floor in the fashion outlined in the Coles cleaning documents, I find that the material on the floor of the fresh produce area on which the plaintiff slipped would not have been there for any longer than 10 minutes. There was not just one employee circulating on the floor, there were four. Thus the most probable inference is that the material was on the floor no longer than 10 minutes. It could have been less. It is not likely to have been there longer than that.
Mr Stewart submitted that with all the tasks which fillers had to perform, they had not noticed the grapes on the floor. I have found to the contrary.
Mr Stewart submitted that this case was similar on the facts to Strong v Woolworths Limited [2012] HCA 5; 246 CLR 182, where the inference drawn was that it was more likely that the offending chip in had been on the ground for much longer than 20 minutes. Every case turns on its own facts. In Strong there was no system of cleaning such as Coles had in this case. The "people greeter" in Strong was unlikely to have detected the chip as she had other duties to focus upon. Here the employees in the fresh produce area had multiple duties, but I have found that they were trained in the "Clean As You Go" system, and they carried out their spot checking and cleaning duties conscientiously. The factual situation in Strong was very different form the facts of this case.

The Liability Issues

The court must deal with the following liability issues under the Civil Liability Act 2002.
I must make findings as to the nature of the duty of care, if any, the defendant owes to the plaintiff, the extent of the duty, breach and damage. This is because the "constituent elements of the tort of negligence - duty, breach and damage - considered seriatim, progressively increases the specificity of the inquiry into how the incident occurred and the way in which damage was sustained": Neindorf v Junkovic [2005] HCA 75.
I must find the facts and "draw from them the inference of fact whether or not the defendant had been negligent": Benmax v Austin Motor Co Limited [1955] AC 370 at 373-374.

Duty of Care

The occupier of retail premises owes a duty to take reasonable care to avoid a foreseeable risk of injury to the claimant, arising from the physical state of its land, on the assumption that the claimant used reasonable care for their own safety: Australian Safeways Stores Pty Limited v Zaluzna [1987] 8 CA 7; (1987) 162 CLR 479 at 488; Roads & Traffic Authorities (NSW) v Dederer [2007] HCA 42: (2007) 234 CLR 334 at [45].
Gleeson JA in Reid v Commercial Club (Albury) Limited [2004] NSWCA 98 said at [159]: "The scope of the occupier's duty of care is marked out by the relationship between the occupier and users exercising reasonable care for their own safety. Thus, 'the weight to be given to an expectation that potential plaintiff's will exercise reasonable care for their own safety is a general matter in the assessment of breach in every case': Roads & Traffic Authority of NSW v Dederer at [45]. This involves a factual judgment which may depend on the circumstances of the case: Thompson v Woolworths (Queensland) Pty Limited [2005] HCA 19; 221 CLR 234 at [35]."
In paragraph 4 of its Defence, the defendant admits that it owed a duty to take reasonable care to prevent foreseeable risks of injury to a class of persons such as the plaintiff.
I find that Coles owed a duty of care to avoid a foreseeable risk of injury to the plaintiff, arising from vegetable matter being on the floor of its Hurstville store, upon which customers might slip and fall.

Breach of Duty of Care

Foreseeability of risk of injury is not determinative of breach of duty of care: Francis v Lewis [2003] NSWCA 152 at [40]. The occupier's obligation is that of reasonable care. Its duty is not to make the premises as safe as 'reasonable care and skill on the part of anyone can make them': Jones v Bartlett [2000] HCA 56: (2000) 205 CLR 166 at [92]. It is not an insurer of entrants: Kocis v SE Dickens Pty Limited [1998] 3 VR 408 at 429. What constitutes the exercise of reasonable care depends on the circumstances of each case: Wilkinson v Law Courts Limited [2001] NSWCA 196 at [32].
The question whether the defendant breached its duty of care to the plaintiff is governed by Section 5B of the Civil Liability Act 2002 (NSW) which provides: "(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."
Section 5B can be seen to reflect the common law as to the standard of care (that is, the measure of the discharge of the duty of care) applicable to an occupier which is what, if anything, a reasonable person in the occupier's position would, in the circumstances, do by way of response to the foreseeable risk: Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614 at 662-663; Australia Safeway Stores [at 488]; Neindorf v Junkovic at [8].
Section 5C is also relevant, in particular, Section 5C(b) which provides that "the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done".
So far as the various elements of Section 5B are concerned, I make the following findings: 1. I find that the risk was foreseeable to Coles. Coles knew of the risk that customers could slip on vegetable material which had fallen onto the floor of the fresh produce area. The foreseeability of the risk was known to Coles and this is why they had a system of cleaning and training in cleaning procedures. It is also why they did not rely entirely on the placement of some non-slip mats, but had a general policy of spot checking and cleaning the floor as each employee circulated around the fresh produce area. 2. I find that the risk was not insignificant. Customers walking around the store are looking at the Coles produce for sale, not at the floor. Any customer slipping on vegetable material and falling would suddenly hit the floor with some force and the risk was thus quite significant. The risk was not insignificant because, although it may not materialise, it was nevertheless not trivial: Fallas v Mourlas [2006] NSWCA 32; 65 NSWLR 418 at [18]. 3. I find that in the circumstances, a reasonable person in the position of Coles would have taken appropriate precautions against that risk of harm. In fact, Coles did take precautions. It is a different question as to whether those precautions were sufficient to discharge its duty of care. I return to this below. 4. In determining that a reasonable person would have taken precautions against the risk of harm, I find that: 5. it was probable that harm would occur if care were not taken; 1. the harm was likely to be serious if the fall was a bad one; 2. the burden of taking precautions to avoid the risk of harm was not great, as Coles had quite a few employees in the fresh produce area on the floor at all times; 3. the social utility of the activity that created the risk of harm was the running of a retail store, but with that activity came the duty to take reasonable care for customers in the store.

Proving Breach of Duty

The conduct relevant to the breach inquiry is the "foreseeability of harm resulting from the acts or omissions of the defendant, or its servants, proved to have occurred": Shirt v Wyong Shire Council [1978] 1 NSWLR 631 at 639-640. At the stage of breach, I have to identify "with some precision, what a reasonable person in the position of the defendant would do by way of response to the reasonably foreseeable risk": Graham Barclay Oysters Pty Limited v Ryan [2002] HCA 54: (2002) 211 CLR 540 at [192].
Although the judgment as to what the reasonable person would have done to avoid what is known at trial to have occurred must be made after the event, it must seek to identify what the response would have been by a person looking forward at the prospect of the risk of injury: Vairy v Wyong Shire Council [2005] HCA 92; (2005) 223 CLR 422 at [126]; applied in Adeels Palace Pty Limited v Mourbarak [2009] HCA 48; (2009) 239 CLR 420 at [31].
As is apparent from Section 5C(b) of the Civil Liability Act 2002, whether reasonable care has been exercised is not determined by asking if different conduct would have produced a different outcome: Mobbs v Kain [2009] NSWCA 301; (2009) 54 MVR 179 at [92]. The test for negligence is always "whether the plaintiff has proved that the defendant, who owed a duty of care, has not acted in accordance with reasonable care": Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301 at [13].
The plaintiff bears the legal (and evidential) burden of proving on the balance of probabilities on all the evidence at trial that the defendant owed her a duty of care which had been breached in a manner which caused her injuries; if the plaintiff calls evidence "sufficiently weighty to entitle, but not compel, a reasonable trier of fact to find in [her] favour", the defendant bears an "evidential burden in the sense of a provisional or tactical burden" such that if they fail "to call any or any weighty evidence, [they ran] a risk of losing on the issue": Strong v Woolworths Limited [2012] HCA 5; (2012) 246 CLR 182 at [46], [50], [53].

The Risk of Harm

The breach inquiry requires the primary judge to identify accurately the actual risk of injury the plaintiff faced, as it is only through the correct identification of the risk that the trial judge could determine what a reasonable response to that risk would be: Roads & Traffic Authority of NSW v Dederer at [18], [59].
In Jackson v McDonald's Australia Limited [2014] NSWCA 162, the Court of Appeal identified the relevant risk as that "a person would slip on the wet floor or soon after walking through".
In the present case I find that the relevant risk is that a customer would slip on a grape on the floor of the store.

Did Coles fail to take precautions against a risk of harm which a reasonable person in its position would have taken?

There was no expert evidence called by either side to establish any accepted level of observance and cleaning in the fresh produce section of a busy supermarket.
The question for consideration is whether, on the facts which I have found, would a reasonable person in the position of Coles have taken precautions beyond those actually taken? : Jackson v McDonald's Australia Limited [2014] NSWCA 162 at [89].
It is not realistic to expect that every piece of vegetable matter which falls on the floor of a supermarket will be picked up instantly. Coles is not bound to ensure the absolute safety of entrants to its stores. It must take reasonable care.
In the past such cases often turned upon whether or not a designated cleaner was checking and cleaning the floor at regular intervals - every 15 or 20 minutes was often held to be reasonable. See for example the apparent assumption to that effect made in Strong v Woolworths Limited [2012] HCA 5; (2012) 246 CLR 182 at [14], [36], [38].
Coles put non-slip mats on the floor in the high risk areas - where grapes, lettuce, herb leaves and broccoli were displayed for sale in the long wall case area. That was reasonable care in those high risk areas. The Coles employees conceded that even strict observance of "Clean As You Go" policy would not have been sufficient in those areas; thus the mats were deployed.
The grapes upon which the plaintiff slipped must have been dropped by a customer onto the floor in an area not covered by non-slip mats. That was not an unknown occurrence, but it was not a risk which was created constantly, like the risk created in the matted areas.
Coles could not have been expected to ensure safety by, for example, having several staff in every aisle doing nothing but watching for dropped vegetable matter, or by allocating a staff member to "shadow" every customer as they walked around the store. Nor did the plaintiff submit that they should.
Mr Stewart submitted that the Coles was negligent in that its cleaning system was "haphazard" and further that it failed in this instance to detect grapes which must have been on the floor for a long time. If that had been my factual finding, then his submission may have been made out.
Mr Stewart also submitted that the grapes upon which the plaintiff slipped had probably been on the floor for some hours (Transcript 249/20 - 250/10). If I had found that the staff probably didn't follow the Coles "Clean As You Go" regime, that submission may have had some force. However I have found that Mr Batte, Mr Ralevski and Mr Dolce were all well trained and supervised, and personally conscientious.
On the facts I have found, the plaintiff has failed to persuade me that the grapes were on the floor for quite a while, or that their presence on the floor was not detected by Coles staff for a long time.
In the present case I have found that the Coles system of cleaning, reinforced by training and supervision, resulted in the floor of the fresh produce area being checked, and if necessary cleaned, at least every 10 minutes. I find that such steps were what a reasonable person in the position of the defendant should have taken. I find that the defendant exercised reasonable care.

Causation

Section 5D(1) of the Civil Liability Act 2002 provides: "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)."
In Strong v Woolworths Limited [2012] HCA 5; 246 CLR 182, the effect of Section 5D(1)(a) was stated thus: "The determination of factual causation under Section 5D(1)(a) is a statutory statement of the 'but for' test of causation: the plaintiff would not have suffered the particular harm but for the defendant's negligence. … Proof of the causal link between an omission and an occurrence requires consideration of the probable course of events had the omission not occurred. Here, the appellant was required to prove that, had a system of periodic inspection and cleaning of the sidewalk sales area been employed on the day of her fall, it is likely that the chip would have been detected and removed before she approached the entrance to Big W."
Section 5E of the Civil Liability Act 2002 provides: "In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation."
In order to establish that the harm the plaintiff suffered was referrable to the negligence of the defendant, the plaintiff has to prove, on the balance of probabilities two discreet yet inter-related propositions: first, that there was a substance under her shoes when she fell; and secondly, that the presence of that substance caused her to fall: Jackson v McDonald's Australia Limited [2014] NSWCA 162 at [112].
I have already found that there were grapes under the plaintiff's shoe when she fell, and that the presence of grapes on the floor, and under the plaintiff's shoe, caused her to fall.
I have already recited the concession made by Coles as follows: "Coles agrees to make a concession for the purpose of this claim only that if the court finds that there was a contaminant on the floor such as grapes as alleged then the floor would have been slippery."
That concession means that the 'but for' test is satisfied in theory, if negligence by Coles is otherwise established by the plaintiff.
Causation was not really an issue in this case. If, contrary to my determination, there was negligence in this case, then I find that it caused the harm to the plaintiff because: 1. any breach of duty of care by Coles was a necessary condition of the occurrence of the harm; 2. it would be appropriate that the scope of the defendant's liability extend to the harm so caused.
I thus determine the theoretical issue of causation in favour of the plaintiff, but for reasons discussed above, the plaintiff fails because she has not established a breach of duty of care owed to her.

Contributory Negligence

While contributory negligence was pleaded, no cross-examination was directed to the issue. Mr Jensen very properly made no submission on contributory negligence. I find that there was none. The plaintiff was wearing flat shoes and was walking through the store at a normal pace.

Damages

In the event that my conclusion on liability is challenged, I now assess the plaintiff's damages.
The contest between the parties on damages came down to whether, in the incident, the plaintiff had suffered injuries only to both knees and her left elbow, or whether in addition to those injuries she exacerbated her pre-existing problems in the neck and lower back. The plaintiff's pre-accident medical history is contained in detail in the clinical notes of her treating doctors and the Centrelink file documents (Exhibit DX1, tabs 1, 2 and 3). Her pre-accident history is summarised in the Defendant's Chronology (Exhibit DX5). Put shortly, those documents show that the plaintiff had significant and continuing problems with her neck, lower back and lumbosacral disc.
I make the following factual findings relevant to the assessment of damages.
In 1999 the plaintiff was diagnosed by Dr Ying with degenerative changes to the lumbar and cervical spines. On 17 September 1999 Dr Ying noted that there was moderate to severe low back pain, that sitting was limited to 15-30 minutes, and standing and walking was limited to 20-30 minutes. He also noted that the plaintiff as a result of such chronic pain was unable to lift, bend, carry or turn her neck well.
The plaintiff continued to have neck pain and in April 2007 and June 2008 attended her then GP Dr Amin. In 2008 she also complained of left knee pain with mild induration.
The plaintiff saw Dr Sekel, an orthopaedic surgeon, concerning her left knee pain on 24 June 2008. Dr Sekel noted that an MRI of the plaintiff's knee showed a small tear of the medial meniscus. The plaintiff went back to Dr Amin concerning her left knee on 25 July 2008.
Also in 2008 the plaintiff had a medical consultation and radiology relating to her lumbosacral spine, which showed narrowing of the L5/S1 disc as a result of degenerative disease.
Dr Sekel saw the plaintiff again in 2009 this time regarding low back pain with right leg sciatica. An MRI showed disc desiccation in the three lower lumbar intervertebral discs and a loss of disc height at L4/S1. He diagnosed a disc protrusion touching the L5 nerve root. The material concerning Dr Sekel is found in the general practitioner's notes. No report by Dr Sekel has been served.
The plaintiff continued to see Dr Amin with back pain, right shoulder pain and pain radiating to the knees in 2010.
In 2011 the plaintiff changed general practitioners to Dr Alameddin. She complained of neck pain and had an x-ray which demonstrated C5/6 degenerative discopathy. She also complained of continuing back problems and pain radiating to the right lower limb.
In 2012 the plaintiff again complained to her general practitioner of left knee pain. In April 2012 an application was made for a Centrelink payment to the plaintiff's youngest son, who was said to be her full-time carer.
In January 2014 the plaintiff attended Dr Alameddin complaining of problems in the cervical spine, lumbosacral spine and knee. In August 2014 she reported pain radiating to her left lower limb. On 23 March 2015 the plaintiff attended Dr Alameddin with low back pain radiating to the right lower limb.
On the day of the Coles incident, when she was seen in the manager's office Coles recorded that the plaintiff complained of pain to both knees and the left arm. There was no recorded complaint in the incident report (Exhibit DX4) of any pain to the neck or back.
The plaintiff gave evidence, which I accept, that the accident happened on a Saturday and that she could not consult a doctor until Monday 13 April 2015. When she went to Dr Alameddin on that day she complained of knee pain and pain in her left elbow. On 20 April 2015 the plaintiff attended Dr Alameddin with scans of her knees showing a small build-up of fluid. A few weeks after the Coles incident the plaintiff wrote to the parent company of Coles (Exhibit DX4). In her letter the plaintiff said she felt "sharp pains in my two knees, left arm and was embarrassed". There was no complaint of neck or back pain made in that letter. I find that the plaintiff's son typed out everything that his mother told him.
On 11 May 2015 the plaintiff attended Dr Alameddin and complained of clicking of the right knee when going upstairs. No complaint was recorded of neck or back pain.
On 21 May 2011 the plaintiff went to Dr Alameddin complaining of pain to the left knee. There was no recorded complaint of neck or back pain.
On 3 June 2015 the plaintiff attended Dr Alameddin with knee pain and left elbow pain. There was no recording of a complaint of neck or back pain.
On 16 June 2015 the plaintiff attended Dr Alameddin complaining of bilateral knee pain. Again, there was no recorded complaint of neck or back pain.
The first recorded complaint of neck pain was to Dr Alameddin on 24 June 2015, about ten weeks after the incident at Coles.
The first recorded complaint of back pain was to Dr Alameddin on 4 August 2015, nearly four months after the Coles incident.
In September 2015 the plaintiff saw Dr Maniam, an orthopaedic surgeon, about her neck, back and knee pain. There was no report served from Dr Maniam.
Mr Stewart submitted that I should find that the plaintiff injured more than her knees and her elbow in the Coles incident firstly because there had been radiological changes over time and secondly because of the expert evidence from medico-legal witnesses.
The problem with comparing radiological reports from pre-incident and post-incident doctors is that no expert has actually looked at both sets of scans and offered a view as to the nature of the changes, let alone whether they are due to the incident. Mr Stewart relied upon the MRI scan of the cervical spine and lumbar spine of Dr Kuan dated 6 October 2015. That report is of little assistance because there is no indication that Dr Kuan was given any earlier scans, or asked to make a comparison between them.
Mr Stewart tendered reports of Dr Y.K. Lee an orthopaedic surgeon. In his first report of 8 April 2016, prepared for medico-legal purposes, the pre-incident condition of the plaintiff was simply recorded as a car accident in 1994, an injury to the right jaw which injection and medication did not help, depression and "some back pain and neck pain before the accident, but this was aggravated by the fall". There is no indication that Dr Lee was given the clinical notes or knew any detail about the extent of the neck and back problems before the Coles incident, or about the lack of complaint about the neck or back for some time after the Coles incident.
The defendant obtained a report from Dr Silva, an orthopaedic surgeon, dated 10 March 2017. This ended up being tendered by both parties. On examination Dr Silva noted that the plaintiff did not complain of any cervical spine pain, lumbar spine pain or bilateral ankle pain. He said that if the plaintiff had any neck or back pain from this fall, then it had completely resolved by the time he saw her on 8 March 2017. Dr Silva accepted that the plaintiff had suffered traumatic chrondromalacia patellae of the knees, right more than left, and left tennis elbow.
That report of Dr Silva was given to Dr Lee, who commented upon it in a report dated 8 May 2017. He noted that the plaintiff had not mentioned her back in her first consultation with him. He said that if there was already an impairment of the back from the previous car accident, then the back injury should not be taken into calculation. That being so, the only injuries which Dr Lee would attribute to the Coles incident was an injury to both knees, the right ankle and the left elbow.
Much of the cross-examination of the plaintiff concerning her injuries was based upon the records of her treating general practitioners. On more than one occasion the plaintiff agreed with the proposition that if she had a problem when she went to a doctor she would have told the doctor about it.
I find that the plaintiff had long term neck and lower back problems prior to the Coles incident, which had led her to see doctors on a regular basis for many years, right up until the time of the Coles incident. I also find that she did not complain to a general practitioner about a neck problem for two months after the Coles incident, and did not complain about a back problem until four months after the Coles incident. Dr Lee does not support the claim for a back aggravation in the Coles incident and nor does Dr Silva. Dr Lee never thought that the neck problems were attributable in any way to the Coles incident.
In those circumstances I find that in the incident in Coles the plaintiff slipped forward onto her knees and her elbows. She suffered injuries to both knees and both elbows. I accept that those problems are ongoing, but the bulk of her medical problems arise from pre-existing conditions of the neck and back which do not seem to have been exacerbated by the accident. The plaintiff has also suffered from depression as a result of her marital breakdown and the domestic violence she suffered. There was no complaint that this condition was worsened by the Coles incident.
Under Section 16(1) of the Civil Liability Act 2002 no damages may be awarded for non-economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case. Section 16(2) sets the maximum amount of damages which may be awarded for non-economic loss. The current figure for a 100% non-economic loss is $605,000. By Section 16(3) the award for non-economic loss in the range of 15% to 33% of a most extreme case is set out in a Table.
I find that the injuries and disabilities suffered by the plaintiff result in an award for non-economic loss of 15% of a most extreme case. Applying the Table in Section 16(3), this results in a monetary award for non-economic loss of $6,000.
Agreement was not reached between the parties concerning out-of-pocket expenses. The claim for past out-of-pocket expenses was for $2,321.40. Much of this was in dispute but the defendant conceded that $978.85 was attributable purely to treatment to the knees suffered in the Coles incident.
That is the amount which the plaintiff should have as her damages for past out-of-pocket expenses. I award $978.85 for past out-of-pocket expenses.
In the Amended Statement of Particulars filed on 24 May 2017 the plaintiff made no claim for future out-of-pocket expenses. Mr Stewart in his oral submissions asked for a lump sum of $10,000 to cover future out-of-pocket expenses.
The defendant conceded that there should be a small award for analgesics and physiotherapy. I allow $750.
As previously recited, Mr Stewart very properly abandoned the claim for damages for gratuitous domestic assistance. He maintained a claim for future commercial care which he put as a cushion or buffer of $25,000. There was no expert evidence that the plaintiff required domestic assistance as the result of the injuries which were sustained in the Coles incident. There was no evidence before me that the plaintiff would avail herself of commercial care in the future. The plaintiff's youngest son was the full-time carer for his mother even before the Coles incident. The plaintiff will continue to need that full-time care in the future, but I have no evidence that it will be provided on a commercial basis, or that any future commercial care would be attributable to the relatively minor injuries to the knees and elbow. For these reasons the award for future care is nil.
As a result I assess the plaintiff's damages at $7,728.85.

Orders

My orders are: 1. Judgment for the defendant. 2. Order the plaintiff to pay the defendant's costs. 3. Liberty to apply if any other costs orders are sought by the defendant. 4. Exhibits to be retained for 28 days. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 July 2017

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