Fullin v WR & EM Kennedy Nominees Pty Limited t/as Franbridge Distributors

The Fall 15Photographs of the relevant areas of the premises can be seen in Exhibits 3 and G. The plaintiff said that at about 2:30 pm on 26 August 2011 he came to the store in order to purchase a "hole saw". As he was ascending the steps on the outside of the building he noticed another person smoking a cigarette. He later saw this person (the "smoker") working behind the counter and concluded that he was an employee having a break. As the plaintiff faced the glass door, the handle was on his right and the door opened into the store as shown in photograph 5 in Exhibit G. 16As the plaintiff opened the door he noticed the smoker behind him. The smoker was coming back into the store. The plaintiff turned around to face the smoker in order to hold the door open for him. His manoeuvre took him to the counter side of the landing with his back to the counter. He then took a backward step into the "void" between the landing and the counter. He fell backwards so that his right shoulder hit the counter and the floor. 17Although the mechanics of the plaintiff's description are a little difficult to follow it was not suggested to him that he had fallen in a different fashion. I have no reason to not accept the plaintiff's description. 18I also note at this stage the many coverings on the glass door that would have obstructed the view of a person outside the door looking into the store. 19The photographs show a warning on each step. The plaintiff was adamant that these warnings were not present on the day of his accident. He said he returned to the store on 3 occasions over the following year and the signs were not there. On two occasions he drew sketches (Exhibits J and K). The sketches have some errors in the depiction of the steps (one step too many) and the plaintiff's evidence about why he did not take measurements was hard to follow. 20The evidence from the defendant's witnesses about the warnings is to the contrary. Mr Jedryhowski, the manager, said he had put the signs in 5 to 7 years ago, but he did not have any records to substantiate their purchase. Mr Giufr-e started work for the defendant in 2009. He said the signs were in place when he started. I prefer the evidence of the defendant's witnesses on this point. 21I am very reluctant to find that the plaintiff was dishonest in his evidence about the signs. Rather I think that having fallen he did not notice them. I also think he did not pay attention to them on his subsequent visits. He was clearly not concentrating as shown by his confused evidence about why he did not measure the steps and the mistakes in his sketches. 22More importantly however, I do not think the signs are relevant to the plaintiff's accident as described by him. He had his back to the signs and would not have noticed them in any event. As already noted the plaintiff was not challenged on how the fall occurred. 23In my view this is not a case about whether there were warnings but rather about whether there should have been a railing on the sides of the landing. 24Both of the defendant's witnesses said they had no knowledge of a similar previous accident having occurred. I do not think this evidence carries a great deal of weight in this case. Mr Guifr-e restricted his knowledge to about 6 months before the fall. Mr Jedryhowski had been there for many years but his record keeping about incidents was clearly somewhat casual. He had not recorded the plaintiff's accident and presumably did not record any other incidents which he perceived as minor. 25I also note that he had enough of a safety concern to place the signs on the steps.

After the fall 26The plaintiff stood up. He was in shock. He completed his purchases and when asked about his condition said to one of the employees: "My God that hurt." 27The plaintiff returned home. That night he found his right shoulder very painful and difficult to lie upon. He took some Mersyndol tablets for pain. The next day he consulted a general practitioner, Dr Lee. He was referred for an x-ray and later for an ultrasound examination. The latter depicted full or partial tears in tendons in the right shoulder. The plaintiff was referred to an orthopaedic specialist, Dr Jones. 28Dr Jones sent the plaintiff for an MRI scan. This confirmed the ultrasound findings. The MRI was reported on by Dr Shnier. His report is in Exhibit F. His conclusion is as follows: "1. Acromioclavicular joint degeneration and acromial spurring. 2. Supraspinatus tendon tear. 3. Partial tear of the superolateral insertional fibres of subscapularis. 4. Long head of biceps tendon tear. 5. Features suggest a distant Hill Sachs fracture." 29On 23 November 2011 Dr Jones carried out an arthroscopic rotator cuff repair. There is an operation description behind Tab 3 in Exhibit 2. The plaintiff was taken through Dr Jones's reports in this exhibit and asked to comment on some of the observations and history recorded by the doctor. These were to the effect of symptoms becoming minimal and pre-fall movement returning. The plaintiff generally did not agree with the descriptions. 30Following the surgery the plaintiff had physiotherapy starting in January 2012 and continuing until July 2012. Since then the plaintiff has not had any further treatment. He relies on painkillers and a muscle relaxant medication. He says that taking the painkillers with whiskey enhances their efficacy. 31The plaintiff said that he has become inactive since the fall. He has given up all heavy maintenance and handiwork and he has had to pay for a number of services that he would have otherwise completed himself. 32The plaintiff said that his right shoulder hurts with activity during the day and always hurts during the night. He said that he sold his holiday house at Sanctuary Point predominantly because of his right shoulder injury. He did concede that the proceeds of sale were useful in assisting him to purchase a property for his daughter. I accept that his right shoulder problems were a factor in the sale of the house but not to the extent alleged by the plaintiff. I think the range of other health issues also played a part. 33In relation to domestic assistance the plaintiff said that he had never done any of the 'inside' work. This had been done by his wife. He did however look after the 'outside' of both his principal residence and the holiday home. Prior to the holiday home being sold he had engaged a contractor to mow the lawns. No claim was made for the costs of this service. His wife took over the mowing at their Sydney home. 34Mrs Fullin gave evidence about the lawn mowing. She said that she found the task difficult because of terracing and a slope but she would continue to mow the lawns as long as she was able. She estimated that each occasion took two hours or more. She mowed the lawns every two or three weeks in summer and less often in winter. Mrs Fullin is herself now a lady of senior years and is very slight in build. I accept that she would have difficulty with mowing the lawn and that she will not be able to continue to do so for much longer.

The medical material 35Besides the MRI report prepared by Dr Shnier, which is mentioned above, the plaintiff relied on reports of Dr Lee, a general practitioner, and Dr Bodel, an orthopaedic surgeon. Both of these reports are in Exhibit F. Dr Lee's report records that the plaintiff gave a history that he was unable to lift his shoulder after the fall. The doctor records sending the plaintiff for x-rays and later an ultrasound. He says that the plaintiff was ultimately sent to Dr Jones who ordered an MRI and later carried out surgical intervention. 36Dr Lee last saw the plaintiff about his shoulder in December 2011. He concluded: "In summary, Mr Kenneth Fullin has sustained a right rotator cuff tear as a result of a fall. The prognosis for such injury is fair following surgery. It is likely that he may get pain in the shoulder if he does repetitive movements, lifts heavy weights or does any work above shoulder height." This conclusion is consistent with the specialist medical opinion. 37Dr Bodel saw the plaintiff for a medico-legal assessment on 1 June 2012. As with Dr Harvey (for the defendant) the plaintiff did not tell the doctor about his previous shoulder problems. Unlike with Dr Harvey, the plaintiff's solicitors did not think it important to obtain a supplementary report once the earlier history of shoulder pain became known. Dr Bodel's diagnosis is the same as Dr Lee. In addition, he says that the plaintiff is making "steady progress following surgery". Dr Bodel thought the plaintiff's prognosis was "reasonable" and he envisaged physiotherapy over the coming year. 38As I have already said, Dr Harvey was given the benefit of further information about the plaintiff's history. In his first report (Exhibit 1) when he did not have the earlier history, Dr Harvey's diagnosis was that the tendon tears could have been caused by the fall. He found that the plaintiff "has been left with some loss of movement in the right shoulder which is likely to persist. He still has residual pain in the shoulder but one would expect this to gradually become less with time". He thought that the fall had been "largely responsible for the restriction in shoulder movement and the pain that he is experiencing". Dr Harvey thought that the plaintiff's condition was static and that "it is unlikely that he is going to regain much further movement in the right shoulder". He did, however, envisage a decrease in pain over time. 39Dr Harvey's second report is dated 6 March 2013. This is a supplementary report produced with the benefit of Dr Lee's notes including the history given to Dr Costigan on 21 February 2011. The notes also include the results of the ultrasound performed on 2 March 2011. Armed with this information Dr Harvey concluded: "I would estimate that 25% of his present impairment and disability is longstanding and 75% could be attributed to the injury on 25/08/11." 40I think Dr Harvey's conclusion is consistent with the history given to Dr Costigan of some two years of pain and also with a realistic assessment of the more severe injury that occurred in the fall. In addition, there is no opinion from the plaintiff's side that challenges that of Dr Harvey. I accept Dr Harvey's opinion. 41In relation to the reports of Dr Jones which are in Exhibit 2 I note the inconsistencies between the plaintiff's evidence and the histories that are recorded. I am reluctant, however, to place too much reliance on the discrepancies, having regard to the warnings given by Basten JA in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 (at paragraph 8) and Mason v Demasi [2009] NSWCA 227 (at paragraph 2). 42I do, however, note the list of other health problems contained in the referral to Dr Jones from Dr Lee (Exhibit 2, Tab 3) and that Dr Jones has not seen the plaintiff since August 2012.

Liability 43The duty of care owed by an occupier to a legal entrant was set out in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488. An occupier has a duty to a lawful entrant to "take reasonable care to avoid a foreseeable risk of injury to the person concerned". This formulation is consistent with Section 5B of the CLA. 44In case some distinction can be discerned between Zaluzna and Section 5B it is necessary to ensure that the plaintiff has established the various components of the section. The onus is entirely on the plaintiff (Section 5E). 45The plaintiff relied on an expert report by Mr Adams (Exhibit G). I found the photographs in the report to be very useful. I did not obtain much assistance from the rest of the report. In my view this is a case, as I've already said, about whether or not there should have been a railing on the landing and resolution of this point is derived as much from common sense as the wide ranging opinion of Mr Adams. 46Returning to Section 5B, I am first of all satisfied that there was a risk of harm in a person falling from the landing onto the counter and ground below. I also think that this risk was foreseeable. The landing was unprotected and the warning signs would not have prevented the fall as described by the plaintiff. 47I think that the risk of a fall was not insignificant and that a reasonable person in the position of the occupier would have taken precautions to prevent such a risk. 48In coming to my conclusion, and this is also relevant to whether the risk was obvious, I note that the difference between the landing and the store floor would not necessarily have been evident through the glass door because of the various poster material stuck on it. Secondly I think it was reasonably foreseeable that a person entering through the door might do so backwards not just in the circumstances described by the plaintiff but in other instances such as, for example, a person bringing goods into the store which are being held so that the door is pushed open by the person's back. 49In relation to Section 5B(2) I consider that there was a reasonable, if not a high, probability that harm would occur if care was not taken and that, in any matter involving a fall onto a hard surface, there is a likely seriousness of harm. I do not consider there was any substantial burden in taking precautions to avoid the risk of harm. It was suggested that a simple railing could not have been put in along the side of the landing because it would have prevented the opening and closing of the security door. Mr Jedryhowski did however agree that the security door could have been mounted on a sliding mechanism. 50I do not think this is a conclusion derived from hindsight. The absence of any protection on the sides of the landing is apparent and should have generated a response upon reasonable assessment. 51I do not think Section 5(2)(d) is relevant here. 52In summary I am satisfied that the premises were dangerous by reason of the defendant's breach of duty within the parameters of Section 5B(1). I think it is also clear that the plaintiff's injury was caused by the breach of duty. But for the absence of a railing the plaintiff would not have fallen and injured his shoulder. 53I would finally add this is not a 'normal' steps case involving a trip or slip down stairs. This case concerns an unprotected landing. The steps were safe. The landing was not. 54I do not think that any contributory negligence has been established. I think it was entirely reasonable for the plaintiff to enter the store in the manner that he did. My conclusion would have been different had he been to the store on a previous occasion or if the glass door had not been covered in material preventing him from seeing, with clarity, the gap between the landing and the counter and the difference in level from the landing to the floor. 55I think my above conclusions have dealt with the defendant's assertion that the risk was obvious. I do not think the unguarded void was obvious. It was not apparent from outside the glass door and it would not have been visible to a person with his back to the counter. 56Accordingly the plaintiff has succeeded on liability and there will be no reduction of his damages for contributory negligence.

Damages 57The plaintiff submitted that non-economic loss should be assessed at 35% of a most extreme case ($187,500 under Section 16). The defendant's percentage was 25% ($35,000). I agree with the defendant's submission. In fact I think it is overwhelmingly fair and but for the concession may have thought a slightly lower percentage was appropriate. 58I do appreciate that there has been a good deal of interference with the plaintiff's capacity to carry out many of his pre-accident activities as well as to enjoy the full breadth of his retirement years. However I think the plaintiff's age must be taken into account as well as, and more importantly, my findings that the plaintiff was not as active as he asserted and that his many other health issues have and do play a part in his everyday existence. 59I therefore allow $35,000 for non-economic loss. 60The plaintiff's economic loss claim of $50,000 is derived from a number of expenses he says he has incurred, and will incur, by reason of his incapacity to carry out various physical tasks. Examples of such expenses are in Exhibit E. The defendant submitted that there should be no allowance. As I have said, his shoulder injury has played a part but so too have other matters. I think a percentage of the plaintiff's claim should be allowed to reflect the possibility that at least some of the extra expenditure has arisen from the right shoulder injury. To this end I allow $10,000. 61Past out of pocket expenses were agreed at 1,447.00. 62The plaintiff's claim for future out of pocket expenses of $10,000 is based on the continuing need for medication together with occasional visits to the doctor. The defendant again said there should be no award. The plaintiff agreed that he had no intention of having future physiotherapy or any other specific modality of treatment. Dr Bodel (Exhibit F) writing in June 2012 envisaged a further "10 to 15 visits to the physiotherapist over the next year or so..." The "next year or so" is practically over and the plaintiff has not had any physiotherapy during this period. There was no suggestion that he could not afford the treatment. I am not satisfied that the plaintiff will have physiotherapy in the future. 63I think that the plaintiff's future medical expenses should be confined to an allowance for medication. He has not seen a doctor for some time and I can see no reason for a doctor to be consulted. The plaintiff has a life expectancy of 15 years. Allowing $10 per week on the 5% tables the result is the $4,129. I award this amount. 64The plaintiff conceded that his claim for past domestic assistance must fail because he has not met the threshold prescribed by Section 15 of the CLA. 65In relation to the future the claim is for lawn mowing expenses at the rate of $35 per hour for one hour per fortnight for 12.5 years. I think Mrs Fullin, to her credit, was honest in stating that she would continue to mow the lawns as long as she could into the future. Once again because of Section 15 these services will not be compensable. However I think after a further, say, two years it is reasonable to expect that Mrs Fullin will no longer be able to do the lawn mowing. 66I do not think an allowance for paid services should then continue for the balance of the plaintiff's life expectancy because he would in any event have reached a stage where he could not mow the lawns. I must also take into account the other health conditions that may play a part in preventing the plaintiff from carrying out this activity. I think I should allow five years of paid lawn mowing at $35 dollars per hour, for one hour for 18 weeks a year, deferred for two years. The 18 weeks is designed to take into account a reduced frequency in winter months. The calculation, on the 5% tables, is $12.11 x 231.5 x .907 = $2,542.74. Non-economic loss $35,000.00 Past and future home maintenance $10,000.00 Past out of pocket expenses $1,447.00 Future medical expenses $4,129.00 Future paid lawn mowing $2,542.74 Total $53,118.74

67Accordingly I make the following orders: (1)Judgment for the plaintiff against the first defendant in the sum of $53,118.74 (2)Subject to further order the first defendant is to pay the plaintiff's costs of the proceedings.

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: 24 May 2013