I have found no breach of the duty of care pleaded by the plaintiff. In the event that I am in error in this conclusion, I will briefly consider the question of damages. Damages are difficult in the present case to assess because of the plaintiff's substantial pre- and post-accident medical conditions.
The following submissions as to damages are made by the parties.
Head of damage Plaintiff Defendant
Non-economic loss $600,000.00 Nil
Past out-of-pocket expenses $335,775.17 Nil
Future out-of-pocket expenses $450,089.94 Nil
Past and Future gratuitous care $115,700 (past) Nil
$413,342.86 (future)
[2]
The plaintiff's claims exceed the jurisdiction of this court.
There was no medicolegal expert evidence obtained by and tendered by the plaintiff. There were, however, substantial treating doctor evidence and consultation notes. In addition, the defendant tendered voluminous material. The plaintiff tendered two medico-legal reports obtained on behalf of the defendant as discussed above.
I will proceed to consider the various heads of damages.
[3]
Non-economic loss
As stated above, the claim is governed by the CLA. Section 16(1) of the CLA provides that no damages may be awarded for non-economic loss unless its severity is at least 15% of a most extreme case. Section 3 of the CLA defines "non-economic loss" as meaning any one or more of pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement.
There is no evidence before the court that as a result of the accident there has been a reduction in the plaintiff's life expectancy. In addition, there is no evidence of disfigurement as there is no satisfactory evidence that any scarring occurred or that any operations which have occurred in relation to the plaintiff since the accident were caused by the accident. Therefore, the court must consider pain and suffering and loss of amenities of life.
The plaintiff claims that since the accident his pain has increased considerably and his diabetes has also worsened due to an inability to exercise. As stated above, the plaintiff claims $600,000. Under the Civil Liability (Non-economic Loss) Amendment Order 2021 the maximum amount of damages which may be awarded for non-economic loss is $693,500 as at 1 October 2021.
The plaintiff claims a worsening in his psychiatric health as a result of the accident. There is no medicolegal evidence which establishes that claim. The report of Dr Samuell dated 20 August 2019 notes that the plaintiff has a persistent depressive disorder. However, it is also noted that the plaintiff was being treated for depression prior to the accident. Dr Samuell expresses the opinion that it is unclear that the 2015 accident contributed to the plaintiff's depression while accepting that that is a possibility. Dr Samuell notes: "on balance, the contemporaneous medical notes would suggest that if there was any contribution from the subject accident from a mental health perspective, that it was incremental". The view is expressed that no clear nexus was drawn by the plaintiff's general practitioner in consultation notes between a claimed worsening of the depressive disorder and the injury.
Dr Pearson, in his 6 November 2020 report, does not refer to the 2015 accident as being connected with the plaintiff's depression. The plaintiff claims this was an oversight, but that is not at all clear and established.
In the period between the accident and the trial, the plaintiff continued to have serious heart and diabetes issues.
As concluded above, I am not satisfied that any worsening in the plaintiff's psychiatric condition was due to the accident.
I am also not satisfied on all the evidence that any worsening in the plaintiff's diabetes or heart condition was due to the accident. There is no satisfactory medicolegal evidence to establish that. While I have accepted that the plaintiff saw his general practitioner Dr Doan, probably on 20 April 2015 (see the request for the CT of the cervical spine at Exhibit A page 54), the result of this consultation was to arrange for a CT of the cervical spine. The history provided in the radiologist's report at Exhibit A page 54 refers to "2 months of radicular symptoms radiating to C8".
Having regard to the entry for 12 June 2015 in the general practitioners notes (Exhibit A page 56), I am satisfied that the plaintiff injured his right knee whilst trying to break his wife's fall at the time of the accident and that it was painful as at that time. This is supported by later entries: see the 9 July 2015 entry. Entries relating to left arm issues appear to have been long-standing. Neck issues also appear to have been long standing. The plaintiff claims that he injured his lower back and right shoulder in the accident. There are no references to this in the consultation notes from his general practitioner until 25 February 2016 when an x-ray of the lumbar spine was requested. An investigation of the lumbar spine was not requested by the general practitioner on 20 April 2015 when the CT scan of the cervical spine was sought.
Despite the submissions from the defendant, I accept that the plaintiff injured his right shoulder and lower back in the accident but it was only a minor injury having regard to the lack of reference to either area until February 2016. The medical evidence which I have referred to above, shows the plaintiff having low back pain and right shoulder pain from other incidents and accidents before the subject accident. See for example the entry on 30 August 2013 (Exhibit 1 page 49). A frozen shoulder with supraspinatus tendinosis and bursitis was referred to in 2010 (Exhibit 1, pages 71 and 75). The plaintiff's documents relating to the 2009 incident referred to pain in his shoulders and lower back: Exhibit 1 pages 78-81, 84, and 86 where the plaintiff states that both his shoulders were frozen. The plaintiff claims that his frozen shoulders were due to his diabetes. There was no evidence to support that. The plaintiff also claimed that his complaints arising from the 2009 accident were at the upper back level. However, no radiological investigations of the lumbar spine were ordered in April 2015.
I assess the plaintiff on the basis that the accident caused an injury to his right knee involving pain and limitations of movement and it exacerbated his back, hip and shoulder injuries. The report of Dr Machart concludes that there was no evidence of substantial or long-lasting injury to the plaintiff in the accident. However, Dr Machart referred to limited records including radiological reports. The report of Dr Vasili, orthopaedic surgeon, dated 20 March 2020 notes an irritable right hip joint and right knee articulation. I prefer the treating doctor's reports to Dr Machart's report. Whilst I accept that the plaintiff has ongoing limitations relating to his knee injury and the aggravation to his shoulder and back injury, I am not satisfied on all the evidence that the plaintiff's current position is all linked to the 2015 accident in the light of the medical evidence.
Taking into account all of the evidence and the factors I have referred to above, I assess the plaintiff's severity of non-economic loss as a proportion of a most extreme case as being 21%. This equates to 4% as a proportion of the maximum amount that may be awarded for non-economic loss being 4% of $693,500. This amount is $27,740. This is to be reduced to $27,500 in accordance with s 16(4) of the CLA. I therefore allow $27,500 under this head.
[4]
Commercial paid expenses
The plaintiff gave oral evidence that prior to the accident his son used to undertake the lawn mowing on most occasions: T270.9-.22. The plaintiff said he did the car washing/cleaning activities. Mrs Khanna gave evidence that the plaintiff did the mowing activities prior to the accident: T339.6. The plaintiff said that after the accident his son used to come and clean the car and mow the lawn: T124.48. Having regard to the plaintiff's evidence at T124, it seems that the plaintiff's son now undertakes the lawn mowing every fortnight to three weeks: see T124.19. That will be considered in relation to past gratuitous care. No commercial payments were established.
In relation to car washing, the plaintiff used to clean and wash the car prior to the accident. Now his wife does it or his son arranges it by paying money at a car wash: T127.12. No receipts were in evidence relating to this. I accept the plaintiff's evidence on this issue. I allow a buffer of $1,500 for past expenses relating to the car washing/cleaning.
There was some evidence about the plaintiff and his wife obtaining domestic assistance relating to cleaning. However, the evidence was that his wife completed these duties prior to the accident. The plaintiff did not contribute in any significant way. Accordingly, this expense is linked to his wife's injuries not the plaintiff's injuries. I allow nothing for past commercial cleaning expenses.
There was some evidence about dog walking being required, but it was not established to my satisfaction that there was any cost incurred in the past relating to this.
[5]
Past medication and Medical expenses
I was not satisfied on the evidence that the increase in the plaintiff's diabetes or heart medication was established to be linked to the accident. The plaintiff gave evidence of increased use of painkillers. Again, the evidence in relation to this was very limited and there was no satisfactory medicolegal evidence. I would allow a lump sum of $2,000 for past prescription and non-prescription painkilling medication arising out of the injuries in the accident.
In relation to past medical expenses, the defendant submits that no amount should be ordered and relies on the document at Exhibit 1 pages 261-282 as signed by Mr Khanna on 30 May 2018 (Exhibit 1 page 162). There Mr Khanna has ticked those services said to have been provided to him in relation to a claim described as "Compensation type MVA" relating to an injury which occurred on 30 October 2009. Further, when Mr Khanna saw the doctor relating to his knee following the April 2015 accident he seems to have seen the doctor also for other reasons relating to other medical issues: see Exhibit 1 pages 34-39. This seems to support the approach which Mr Khanna took at Exhibit 1 pages 261-282. I therefore allow no amount under this head in the absence of more definitive evidence. If I am wrong in taking this approach, having regard to the poor state of the evidence I would only have allowed a lump sum amount for past medical expenses of $500.
[6]
Future out-of-pocket expenses
The plaintiff claimed a substantial amount for future out-of-pocket expenses. The evidence was limited in relation to non-prescription and prescription pain medication. The plaintiff claimed amounts for physiotherapy and podiatrist therapy. I was not satisfied that the podiatrist amounts claimed were likely due to the accident as opposed to the plaintiff's diabetes. I was also not satisfied that the diabetes and heart medication increases were due to the accident.
Doing the best I can on the limited evidence, I would allow physiotherapy treatment once a fortnight for two years: see Exhibit A pages 56 and 65. I note the plaintiff's evidence that he had been referred by his general practitioner for five sessions costing $95 each which he could not afford. I would allow a lump sum of $4,000 for this physiotherapy treatment.
In relation to medication, there was very little evidence on the point. Doing the best I can, I would allow $3,000 for future painkilling medication. I would also allow $2,000 for the plaintiff to have some initial consultations with a pain specialist.
In relation to future lawn mowing and car cleaning, I will consider this in relation to future commercial care. I was not satisfied on the evidence that the plaintiff's requests for a gym program and the other drugs claimed were established.
The plaintiff will also need to see his general practitioner for review every six months. There is no suggestion that further surgery is required connected to the accident. The need for surgery is inconsistent with Dr Machart's report. Although the plaintiff sees his general practitioner regularly for numerous other conditions (including with similar frequency as before the accident) I would allow a lump sum of $1,000 for future general practitioner consultations only related to the injuries in the accident. This allows for the plaintiff to seek some consultations unconnected to his other medical conditions.
In his 23 November 2020 report (Exhibit A page 90), Dr Vasili notes that he recommended to the plaintiff that he consult a neurologist to be assessed for peripheral neuropathy relating to his lower back and knee problems since the 2015 accident. I would allow a lump sum of $1,000 for two consultations with a neurologist in relation to this issue.
[7]
Past gratuitous attendant care services
The plaintiff makes a considerable claim for past gratuitous attendant care services. The items mentioned by the plaintiff in his evidence were dog walking, car washing and lawn mowing. The evidence is that the plaintiff's wife undertook most of the domestic tasks internally prior to the accident. Mrs Khanna gave evidence that her son and daughter-in-law assisted her considerably after her accident. There is no suggestion that the plaintiff contributed substantially to domestic tasks prior to the accident. Whilst he gave some assistance with cooking and minor tasks, this appears to be as part of the general division of domestic tasks and, on the evidence, his contribution to tasks internally appears to have been minor.
Section 15 of the CLA provides as follows:
"15 Damages for gratuitous attendant care services: general
(1) In this section -
attendant care services means any of the following -
(a) services of a domestic nature,
(b) services relating to nursing,
(c) services that aim to alleviate the consequences of an injury.
gratuitous attendant care services means attendant care services -
(a) that have been or are to be provided by another person to a claimant, and
(b) for which the claimant has not paid or is not liable to pay.
(2) No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that -
(a) there is (or was) a reasonable need for the services to be provided, and
(b) the need has arisen (or arose) solely because of the injury to which the damages relate, and
(c) the services would not be (or would not have been) provided to the claimant but for the injury.
(3) Further, no damages may be awarded to a claimant for gratuitous attendant care services unless the services are provided (or to be provided) -
(a) for at least 6 hours per week, and
(b) for a period of at least 6 consecutive months.
(4) If the services are provided or are to be provided for not less than 40 hours per week, the amount of damages that may be awarded for gratuitous attendant care services must not exceed -
(a) the amount per week comprising the amount estimated by the Australian Statistician as the average weekly total earnings of all employees in New South Wales for -
(i) in respect of the whole or any part of a quarter occurring between the date of the injury in relation to which the award is made and the date of the award, being a quarter for which such an amount has been estimated by the Australian Statistician and is, at the date of the award, available to the court making the award - that quarter, or
(ii) in respect of the whole or any part of any other quarter - the most recent quarter occurring before the date of the award for which such an amount has been estimated by the Australian Statistician and is, at that date, available to the court making the award, or
(b) if the Australian Statistician fails or ceases to estimate the amount referred to in paragraph (a), the prescribed amount or the amount determined in such manner or by reference to such matters, or both, as may be prescribed.
(5) If the services are provided or are to be provided for less than 40 hours per week, the amount of those damages must not exceed the amount calculated at an hourly rate of one-fortieth of the amount determined in accordance with subsection (4)(a) or (b), as the case requires.
(6) Except as provided by this section, nothing in this section affects any other law relating to the value of attendant care services.
Note -
By reason of the operation of section 3B(1)(b), this section does not apply to the determination of civil liability in proceedings of the kind referred to in section 11 (Claims for damages for dust diseases etc to be brought under this Act) of the Dust Diseases Tribunal Act 1989.
Section 15A makes provision with respect to the determination of damages for gratuitous attendant care services in proceedings of the kind referred to in section 11 of the Dust Diseases Tribunal Act 1989."
Accordingly, no damages may be awarded to a claimant for gratuitous attendant care services unless the services were provided or to be provided for at least six hours per week and for a period of at least six consecutive months.
I am not satisfied on the evidence that the lawn mowing and car washing assistance provided by the plaintiff's son and/or his wife satisfies the intensity and duration requirements in s 15(3). The plaintiff's wife completed the grocery tasks with him prior to the accident and completes them now. In relation to dog walking, the plaintiff's wife gave evidence that she walked the dog prior to the accident both in the morning and in the afternoon. The plaintiff gave evidence that he also walked the dog. Currently a neighbour's son walks the dog and the plaintiff's own son walks the dog one day a week.
It appears therefore that his wife undertook the majority of the dog walking tasks prior to the accident. I am not satisfied on the evidence that it is necessary to pay anyone for walking the dog or that the duration or intensity requirements in s 15 are satisfied in relation to the dog walking. Also, the evidence is that the plaintiff's current residence has a backyard.
When I combine the lawn mowing assistance, the car washing assistance and other minor assistance provided to the plaintiff since the accident, I am not satisfied that the intensity requirement in s 15(3) of the CLA is satisfied. Accordingly, I do not award any amount for past gratuitous care.
[8]
Future gratuitous attendant care services
Similarly, I am not satisfied that the s 15(3) requirements are established in relation to future gratuitous attendant care services. The lawn mowing by the son is only done for about 45 minutes once every two to three weeks. Dog walking seems to have been the plaintiff's wife's primary responsibility prior to the accident. I see no reason why the neighbour's son or the plaintiff's own son would not continue to walk the dog in the future. The dog is also nine years old and has a limited life expectancy.
I also see no medical evidence establishing the rehabilitation claim sought for the future.
[9]
Future commercial care
In my view, however, an amount should be allowed for future commercial assistance relating to the lawn mowing and the car washing. The plaintiff's son is a married man and is no doubt busy. He may have increased family responsibilities in the future. It seems that car washing expenses are already paid for by the plaintiff. In my view an amount for future lawn mowing and gardening assistance as well as car washing assistance is appropriate as being necessary and likely to arise in the future: Miller v Galderisi [2009] NSWCA 353. I accept that the plaintiff needs to establish a need for future paid commercial assistance in the future: Smith v Alone [2017] NSWCA 287 at [73]-[77].
The plaintiff, of course, has substantial other medical complaints. His heart and diabetes conditions would render it likely that he would need commercial assistance in relation to lawn mowing, gardening and car washing in the future anyway at some stage.
Doing the best I can in all the circumstances on the evidence, I would allow an amount for 10 years at $50 per hour for three hours per month. This arrives at the sum of $14,294.60 ($50 x 3 hours per month = $150 x 12 ÷ 52 = $34.62 per week x 5% multiplier for 10 years being 412.9 = $14,294.60).
I reject any further claim for future commercial assistance.
The defendant submitted that the evidence was simply too unclear to allow any claims for past and future gratuitous assistance or commercial assistance. While I accept those submissions in relation to past and future gratuitous assistance, in my view a need to make an allowance for future commercial assistance for lawn mowing and car washing is established for the reasons which I have given.
[10]
Conclusion
Accordingly, I would have allowed the following amounts:
Head of Damages
Non-economic loss $27,500.00
Economic loss No claim was made
Loss of superannuation No claim was made
Past out of pocket expenses $3,500.00
Future out of pocket expenses $11,000.00
Past gratuitous assistance $Nil
Future gratuitous assistance $Nil
Future paid commercial assistance $14,294.60
Total $56,294.60
[11]
Determination
As indicated, I do not consider that the plaintiff has established negligence in the present case.
Accordingly, for the above reasons, I make the following orders:
1. Judgment for the defendant.
2. The plaintiff is to pay the defendant's costs of the proceedings as agreed or assessed.
3. Liberty to the parties to apply within 14 days for a different costs order to that in (2) above.
[12]
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: 21 October 2021
At the commencement of the hearing, the plaintiff, who was self-represented, provided to the court a document entitled "Court Book Chronologically Submission" which referred to various matters relating to his claim. This was treated solely as a submission.
The plaintiff tendered a folder of documents which became, following certain objections, Exhibit A in the proceedings.
The plaintiff also read an affidavit of his dated 10 March 2021 in which he referred to his anxiety and depression.
Part of Exhibit A was an incident report which was prepared by employees of the defendant. The incident report provides that the incident occurred on 18 April 2015 at 3:20pm and was reported to Mr David Zammit, the Assistant Store Manager, at the time. Mr Zammit gave evidence and stated that the contents of the report were prepared by Mr Ross Atherton following Mr Zammit providing information to him. The incident summary was described as:
"Customer Geeta tripped on stack of chairs and fell to the ground".
The further details of the incident in the report were as follows:
"Customer Geeta Khanna was walking around corner of Bi Fold tables display located at the front of the store. Customer Geeta tripped on stack of chairs next to display. As Customer Geeta went to fall she went to break her fall by grabbing the table set up in front of the display, however the table slid a short distance before falling [to] the ground. Customer Geeta then fell on both knees but stated to Ross (CEM) that she landed firstly on her right knee then on her left knee. Customer's husband stated to Ross that the floor was slippery."
The report indicates that first aid was applied by Mr Ross Atherton and the floor was inspected by Mr Zammit and Mr Atherton and no evidence of debris or liquid spillage in the area was located. The injury to Mrs Khanna was described as "swelling and bruising to knees" on both sides of the body. The report indicated that the area was not covered by CCTV. The name of the staff member who first attended Mrs Khanna was recorded as Mr Zammit. The report included the following comments:
"Store was busy and can't specifically point who the area was inspected last as there was associates constantly in the area. After customer had fallen area was inspected by David and Ross and there was no evidence of spillage or debris in the area".
The report referred to and attached a handwritten diary entry of Mr Zammit. The report also indicated that a letter of demand was received on 28 October 2015 by the defendant from Shad Partners Compensation Lawyers.
As stated, annexed to the report was a diary entry for Saturday, 18 April 2015 in the following terms:
"I was directly behind the customer when she fell over. The customer was looking up at the furniture wall direction not in front of her. She did not see the folding table and tripped on the leg of the table and then tried to brace herself using the table, the table slid forward and the customer fell on her knees. I then comforted the lady offered her a chair and asked her if she was okay and the other manager Ross Atherton applied first aid. Whilst comforting the lady her husband was trying to make me sign a document saying we were liable and wanted a copy of the incident report. I rang store manager Sean who then spoke to the husband."
It should be noted that Mr Zammit's diary entry indicates that Mrs Khanna tripped on the leg of a folding table whereas the incident report indicates that she tripped on the leg of a chair which was part of a stack of chairs. The incident report was consistent with the oral evidence of Mr and Mrs Khanna.
Exhibit A included a number of colour photographs. These were taken on 18 April 2015 by the plaintiff. The photographs depict what appears to be a folding table and also a stack of what appears to be black plastic chairs. The photographs appear to depict the table and chairs at the end of an aisle with the chair stacks appearing to be abutting a stack of folding tables.
Part of Exhibit A was a document apparently written in hand by the plaintiff on the day of the accident which included the following:
"My wife tripped & slipped from the stack of chairs and bi-fold tables were displayed on the left. Geeta fell on to both of knees on the ground with the right knee first & then on left knee.
Her husband who was walking with her tried to save her fall but could not as the floor was slippery and the weight of his wife. In this process husband was also injured but without looking my injury I was more worried of my wife."
The plaintiff tendered as part of Exhibit A numerous medical notes, medical records and reports. Both parties relied on medical notes. Appellate courts have cautioned trial judges in relation to discounting a plaintiff's oral testimony on the basis of accounts given to various health professionals which appear to be inconsistent in notes particularly where the health professional has not been cross-examined: see Mason v Demasi [2009] NSWCA 227 at [2] per Basten JA and Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8]. I take the caution stated by the Court of Appeal into account in considering the plaintiff's evidence.
I note, however, that the plaintiff appeared to be an intelligent man with a reasonable command of English. The plaintiff's general practitioners were also consulted by him over an extensive period. In addition, the consistency or lack of consistency of medical records is significant. Mr Khanna also referred to concentration and memory problems in his oral evidence. Some of the medical issues occurred over 10 years ago and, accordingly, in my view, particular weight should be given to contemporaneous documents especially if there is consistency in relation to them.
The medical records relied on by the plaintiff in Exhibit A were extensive. However, it is clear from the voluminous medical records tendered by the defendant which became Exhibit 1 in the proceedings, that the plaintiff's tendered medical records were limited and did not include all medical records prior to the 18 April 2015 accident or documents relating to other accidents in which the plaintiff was involved after the 18 April 2015 accident. With these limitations in mind, I refer to the more significant records relied on by the plaintiff in Exhibit A.
The plaintiff's pre- and post-accident medical conditions and injuries - legal principles applicable
It is submitted on behalf of the defendant that the plaintiff had an extensive pre-accident medical history of medical conditions and injuries which must be taken into account in determining whether the alleged accident injuries were causative of the post-accident restrictions. In addition, it was submitted that a number of post-accident incidents including motor vehicle accidents and ongoing heart and diabetes problems, have heavily contributed to the plaintiff's alleged current restrictions. In the end, the submission was made that there were no relevant injuries or any injuries which arose in the course of or as a result of the accident were minor and resolved promptly and that the plaintiff's alleged current injuries and restrictions were not caused by the accident and thus do not give rise to compensable loss under the CLA.
I considered the relevant principles applicable in McPherson v Dowell [2018] NSWDC 348 at [216]-[219] where I stated the following:
"216. One issue raised by the defendant in its statement of issues which was provided to the court is the nature and extent of any pre-accident medical condition suffered by the plaintiff and how they ought to be taken into account in assessing damages. The case of Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 was referred to. In Seltsam, Ipp JA (with whom Mason P agreed) considered the High Court cases of Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 and Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164. The court held that the onus of proof that a defendant must discharge when making the allegation that a plaintiff's pre-existing condition or injury was a contributing factor to the injury sued upon arising from the negligent act or omission was not an onus to prove that the pre-existing condition or injury had made a material contribution to the plaintiff's injury. A pre-existing condition or injury that was proved to have possible, not probable, ongoing consequences to a plaintiff must be taken into account by the court. There was no requirement that evidence adduced by the defendant must be sufficiently precise and definite to displace the inference that the disabling condition or pain from which the plaintiff suffered was caused by the accident in question: at [100]. Ipp JA said that what was said by the High Court in Watts v Rake and Purkess v Crittenden had to be qualified by the principle stated in Malec v JC Hutton [1990] HCA 20; (1990) 169 CLR 638. Ipp JA stated the following in Seltsam at paragraphs 104-109:
"[104] What was said in Watts v Rake and Purkess v Crittenden now has to be qualified by these principles (cf Commonwealth of Australia v Elliott [2004] NSWCA 360 at [81]). Malec has an important bearing, for example, on the way in which a court must determine whether a defendant has discharged the "disentangling" evidentiary burden on it of showing that part of the plaintiff's condition was traceable to causes other than the accident and that, had there been no accident, the plaintiff would have suffered disability from his pre-existing condition.
[105] Where a defendant alleges that the plaintiff suffered from a pre-existing condition, the evidential onus as explained in Watts v Rake and Purkess v Crittenden remains on the defendant and must be discharged by it. Nevertheless, to the extent that the issues involve hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring, the exercise of "disentanglement" discussed in those cases is more easily achieved. That is because the court is required to evaluate possibilities in these situations - not proof on a balance of probabilities.
[106] Without intending to give an exhaustive list of possibilities, it may be that, had the defendant's negligent act not occurred, a pre-existing condition might have given rise to the possibility that the plaintiff's enjoyment of life and ability to work would have been reduced and to a susceptibility to further injury; in addition, other causes entirely unrelated to the defendant's negligent act might have contributed to the plaintiff's ultimate condition.
[107] Appropriate allowances must be made for these contingencies. A proper assessment of damages requires the making of a judgment as to the economic and other consequences which might have been caused by a worsening of a pre-existing condition, had the plaintiff not been injured by the defendant's negligence. A pre-existing condition proved to have possible ongoing harmful consequences (capable of reasonable definition) to the plaintiff, even without any negligent conduct on the part of the defendant, cannot be disregarded in arriving at proper compensation.
[108] As was pointed out in Newell v Lucas [1964-5] NSWR 1597 (at 1601 per Walsh J, with whose judgment Hardie and Asprey JJ agreed), the court must determine whether a comparison may be made between the plaintiff's condition prior to the injuries sustained by the defendant's negligence (including the plaintiff's economic and other prospects in that condition) and the plaintiff's condition and prospects after the injuries. Nothing in Watts v Rake and Purkess v Crittenden precludes the judge from carrying out this exercise.
[109] Of course, if the evidence does not adequately establish the pre-existing condition or its possible consequences (as was the case in Purkess v Crittenden), it would not be possible to carry out such a comparison and assessment. In regard to the possible consequences, a scintilla of evidence would not suffice. The evidence must be such that a reasonable person could draw from it the inference that the possible consequences contended for by the defendant existed (see McCormick, Evidence, 5th ed, para 338, p 511)."
217. In Metro North Hospital and Health Service v Pierce [2018] NSWCA 11, White JA (with whom Macfarlan and Payne JJA agreed) gave the leading judgment. The issue in that case was whether the plaintiff's epilepsy was a progressively deteriorating condition which contributed to his disability. White JA stated the following at paragraphs 110-115:
"[110] The primary judge accepted that the Hospital's negligence materially contributed to an increased burden of Ms Pierce's epilepsy. Ms Pierce submitted that accordingly the Hospital had the onus of adducing evidence that the worsened burden of her incapacity was partly the result of her pre-existing condition. In Purkess v Crittenden Barwick CJ, Kitto and Taylor JJ said (at 168):
... where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant's negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre-existing condition, rests upon the defendant. In other words, in the absence of such evidence the plaintiff, if his evidence be accepted, will be entitled to succeed on the issue of damages and no issue will arise as to the existence of any pre-existing abnormality or its prospective results, or as to the relationship of any such abnormality to the disabilities of which he complains at the trial. It was, we think, with the character and quality of the evidence required to displace a plaintiff's prima facie case that Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 was essentially concerned. It was, in effect, pointed out that it is not enough for the defendant merely to suggest the existence of a progressive pre-existing condition in the plaintiff or a relationship between any such condition and the plaintiff's present incapacity. On the contrary it was stressed that both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence (ie either substantive evidence in the defendant's case or evidence extracted by cross-examination in the plaintiff's case) which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be. That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant's negligence. (emphasis added)
[111] This was said in the context of a personal injury case arising from a motor vehicle accident. The plaintiff experienced severe and disabling pain in her cervical region. There was evidence that before the accident she suffered from degenerative changes in the spine which were most marked in the cervical region. It was asserted for the defendant that it was probable that at some unspecified time she would have become similarly disabled even if she had not been injured in the motor vehicle accident. The High Court held that the medical evidence upon which the defendant relied, that was accepted by the trial judge, did not establish with any reasonable degree of precision the extent of the plaintiff's pre-existing condition or its likely future effects (at 169).
[112] In the present case the Hospital discharged its evidentiary onus of establishing that Ms Pierce's pre-existing condition was one of likely progressive deterioration. She had the legal burden of establishing the extent to which the Hospital's negligence damaged her. No reasonable precision was possible either of the likely progression of her epilepsy in the absence of the telemetry event, nor of the extent to which the defendant's negligence worsened her existing condition. The defendant's negligence in the present case was in the treatment of an existing condition that is factually remote from the circumstances in Watts v Rake and Purkess v Crittenden.
[113] In Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; (2005) 3 DDCR 1, Ipp JA, with whom Mason P agreed, said in relation to Malec v J C Hutton Pty Ltd:
103 Therefore, according to Malec:
(a) In the assessment of damages, the law takes account of hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring.
(b) The court must form an estimate of the likelihood that the alleged hypothetical past situation would have occurred.
(c) The court must form an estimate of the likelihood of the possibility of alleged future events occurring.
(d) These matters require an evaluation of possibilities and are to be distinguished from events that are alleged to have actually occurred in the past, which must be proved on a balance of probabilities.
104 What was said in Watts v Rake and Purkess v Crittenden now has to be qualified by these principles (cf Commonwealth v Elliott [2004] NSWCA 360 at [81]). Malec has an important bearing, for example, on the way in which a court must determine whether a defendant has discharged the 'disentangling' evidentiary burden on it of showing that part of the plaintiff's condition was traceable to causes other than the accident and that, had there been no accident, the plaintiff would have suffered disability from his pre-existing condition.
[114] The fact that Ms Pierce suffered epilepsy that was likely to deteriorate progressively was to be determined on the probabilities. The likely extent of the progression of her condition was an issue to which the principles in Malec v J C Hutton Pty Ltd applied. The fact that Ms Pierce's epilepsy was a progressively deteriorating condition was established on the balance of probabilities.
[115] For these reasons I reject Ms Pierce's challenge to the primary judge's finding that her epilepsy condition as it existed before the telemetry event of 5 January 2010 was likely to deteriorate progressively."
218. In Gulic v Angelovski [2018] NSWCA 161 Sackville AJA (with whom Beazley P and McColl JA agreed) gave the leading judgment. The case was a claim under MACA. At paragraphs 34-38 Sackville AJA stated as follows:
"[34] The parties' submissions did not direct close attention to the principles applying where a plaintiff who claims damages for loss of earning capacity by reason of the defendant's negligence suffered from pre-existing injuries or disabilities prior to the date the negligence occurred. Although the principles were not in dispute, it is convenient to refer to them.
[35] Section 5D of the Civil Liability Act 2002 (NSW) (CL Act) was in force at the notional trial date. Section 5D(1)(a) provides that a determination that negligence caused particular harm requires the negligence to be a necessary condition of the relevant harm. Section 5E of the CL Act states that 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.
[36] A plaintiff is entitled to damages for any diminution in his or her earning capacity resulting from injuries sustained by reason of the defendant's negligence. But the plaintiff is not entitled to damages for the degree of incapacity that arose from conditions pre-dating the defendant's negligence. It is therefore ordinarily necessary to assess the plaintiff's earning capacity prior to and following the accident. That task includes assessing the plaintiff's economic prospects at the relevant times.
[37] The plaintiff must adduce evidence that the injuries sustained in consequence of the defendant's negligence are or may be associated with his or her post-accident inability to exploit fully his or her earning capacity. Evidence of this character ordinarily establishes a prima facie case that the defendant's negligence caused the plaintiff's diminished earning capacity. If the defendant contends that the plaintiff's current diminished earning capacity is due in whole or in part to a pre-existing injury or condition, the defendant has the burden of adducing evidence to that effect. The evidence must be such as to enable the court to draw an inference as to the consequences for the future of the pre-existing condition. If evidence of this kind is adduced, the plaintiff retains the burden of proving that the loss of earning capacity was caused by the injuries sustained as a consequence of the defendant's negligence.
[38] In applying these principles it may be necessary to allow for possibilities and contingencies. For example, a defendant may discharge the evidential onus by adducing evidence that, had the accident not occurred, the plaintiff's ability to work might have been compromised in any event by a pre-existing condition. In such a case an allowance must be made for the possibility of a deterioration in the plaintiff's earning capacity occurring independently of the defendant's negligence. Conversely, a plaintiff whose earning capacity is diminished at the date the accident occurred may be entitled to damages that take account of the chance that his or her earning capacity would have increased but for the injuries sustained in the accident."
219. In Dal v Chol [2018] NSWCA 219, White JA considered the effect of a subsequent motor vehicle accident on the plaintiff's claim for damages in relation to an earlier accident. White JA stated as follows at paragraph 5:
"[5] The appellant did not plead nor seek to prove that the second motor vehicle accident in July 2015 had contributed in any degree to the respondent's present incapacity to perform the kind of work that he performed as a motor vehicle mechanic prior to the 2013 collision. No submission to that effect was advanced on appeal or before the primary judge. This Court held in Kessey v Golledge [1999] NSWCA 424 at [46] that the defendant bore the onus of adducing evidence that the plaintiff's incapacity at trial was caused or contributed to by a second accident. This is consistent with Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 at 168; [1965] HCA 34 and Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 at 163-164; [1960] HCA 58 where the High Court held that if the defendant alleged that the injured plaintiff's incapacity was wholly or partly due to a pre‐existing condition, the onus of adducing evidence of that matter lay on the defendant. That must be so a fortiori if the defendant contends that a later injury has contributed to the plaintiff's incapacity. The only relevance of the second motor accident is that it brought to an end the respondent's employment with Evapco.""
Limitation issue
In paragraph 1 of the Defence filed on 4 March 2019, the defendant pleads that the Amended Statement of Claim filed on 5 February 2019 is statute barred pursuant to s 50C of the Limitation Act 1969 (NSW). The plaintiff submits the claim is not barred.
The Statement of Claim commencing the proceedings was filed by the plaintiff on 29 January 2019. The accident occurred on 18 April 2015. The plaintiff claims he was injured on that date. Three years after this date was 18 April 2018. The Statement of Claim was thus filed after this date. A limitation issue therefore arises for consideration.
Part 2 Division 6 of the Limitation Act relates to personal injury actions. Section 50A of the Limitation Act applies Part 2 Division 6 to a cause of action for damages that relates to the personal injury to a person regardless of whether the claim for damages is brought in tort, in contract, under statute or otherwise. Having regard to the date of the accident and the claim being for personal injuries, the cause of action alleged in the present case is covered by Part 2 Division 6: see s 50A(2). I accept the written submissions of the defendant that ss 18A and 60A-E of the Limitation Act referred to by the plaintiff in paragraph 1 of his final submissions dated 25 August 2021 are inapplicable to the present case.
Although there is some evidence suggesting that the plaintiff may have been suffering a form of psychiatric or mental illness at the time of the accident or that that condition was made worse by the accident, I am not satisfied that s 50F of the Limitation Act is applicable. Under s 50F(1), if a person has a cause of action for which a limitation period has commenced to run and the person is under a disability, the running of the limitation period is suspended for the duration of the disability. Under s 50F(2), a person is under a disability while the person, relevantly, is an incapacitated person for a continuous period of 28 days or more. The question is whether the plaintiff was an "incapacitated person" within s 50F(4). I am not satisfied on the evidence before me that the plaintiff was a person in the period three years prior to 29 January 2019 who was incapable of, or substantially impeded in, the management of his affairs in relation to the cause of action in respect of the limitation period for which the question arises. The assertion that the plaintiff was an incapacitated person in the period is not supported by the medicolegal report of Dr Samuell dated 20 August 2019: Exhibit A page 169. Whilst Dr Samuell found a persistent depressive disorder, he also found that the plaintiff was not incapacitated from the point of view of domestic assistance from a psychological perspective. Dr Samuell assessed the plaintiff as being miserable with a poor quality of life and with some poor recollection. However, his report does not support a relevant incapacity. In his report dated 6 November 2020, Dr Pearson noted that the plaintiff had depressive thinking. However, he noted that the plaintiff had reasonable concentration and on a mental state examination was a pleasant man who was articulate and insightful and demonstrated good reactivity.
Duty and breach of duty of care
In paragraph 5 of the Amended Statement of Claim, it is pleaded that the defendant owed the plaintiff a duty of care. It was the plaintiff's wife who tripped on the legs of the chairs and fell. The question of a duty of care owed to the plaintiff's wife by the defendant is also relevant.
Paragraph 12 of the Amended Statement of Claim refers to negligence by the defendant. The particulars of negligence set out in the Amended Statement of Claim are very general. However, it appears that it is particularised that the defendant was negligent by the failure to have a safe layout of the floor of the store, in failing to arrange the stock to avoid the risk of injury and by creating a risk of harm or a hazard. Particular 12.7 refers to negligence by "putting large stacks of chairs where shoppers may trip over them". A failure to warn is referred to in paragraph 12.9. In paragraph 12.8, a reference to a failure to conduct a risk assessment is referred to. There was no evidence before the court, including from an expert, as to whether a risk assessment was conducted and what that assessment would have revealed if it had been conducted. Accordingly, the relevant negligence relied upon is the placement of the stack of chairs and whether it created a hazard or a risk of harm that was not insignificant in the light of where the stack was placed. The need for a warning is also relied upon. The defendant has denied liability: see paragraph 18 of the Defence.
There is no reference in the Amended Statement of Claim to the floor being slippery and providing a hazard. There were various mentions in the oral evidence by the plaintiff and Mrs Khanna of the floor being slippery. As an allegation of the floor being in a negligently slippery state is not particularised in paragraph 12 of the Amended Statement of Claim, I exclude it from my consideration. Mr Khanna in his submissions stated that he "forgot" to put the allegation in the Amended Statement of Claim (paragraph 10 of his submissions). In any case, although photographs showed the floor was shiny, there is no expert evidence that the floor was in a negligently slippery state. Similarly, there was no evidence that other people had slipped on the floor or found it slippery. The evidence from Mr Khanna and Mrs Khanna was very general and unpersuasive on this matter. I therefore limit my main consideration to the layout of the store by the placement of the stacks of chairs where they were stacked and the nearby table. In addition, the case of the plaintiff is that Mrs Khanna tripped on the legs of the stack of chairs, not that she slipped on the floor. In relation to the allegation of debris on the floor, this was also not pleaded or particularised by the plaintiff.
Obvious risk
In paragraph 12 of the Defence, the defendant pleads that the plaintiff's injuries were due to the manifestation of an obvious risk. Reference is made in particulars to ss 5F, 5G and 5H of the CLA.
Sections 5F, 5G and 5H of the CLA provide as follows:
"5F Meaning of "obvious risk"
(1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.
(2) Obvious risks include risks that are patent or a matter of common knowledge.
(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.
(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.
5G Injured persons presumed to be aware of obvious risks
(1) In proceedings relating to liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk.
(2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk.
5H No proactive duty to warn of obvious risk
(1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff.
(2) This section does not apply if -
(a) the plaintiff has requested advice or information about the risk from the defendant, or
(b) the defendant is required by a written law to warn the plaintiff of the risk, or
(c) the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant.
(3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection."
In my view, any reasonable person in the position of Mrs Khanna and the plaintiff on the day of the accident, particularly in the light of the evidence of there being many customers in the store and there being large amounts of goods on display, would have been careful when they were walking in the store. Having regard to the evidence of the plaintiff and his wife and the photographic evidence in Exhibit A at pages 45-48, any reasonable person who was a customer on the day of the accident exercising due care for their own safety would have been readily able to see the relevant stack of chairs and would have realised that the bottom chair in the stack of chairs would have legs having contact with the ground which may have come out at an angle: see T312.40-T316.49 especially at T313.44, T315.1, T315.17 and T316.49. They therefore would have taken reasonable steps to ensure that they were well away from the bottom legs of the chair whilst walking in the store.
Causation
Sections 5D and 5E of the CLA provide as follows:
"Division 3 Causation
5D General principles
(1) A determination that negligence caused particular harm comprises the following elements -
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability).
(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent -
(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
5E Onus of proof
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."
The plaintiff thus has the legal onus of proving on the balance of probabilities any fact relevant to the issue of causation in the proceedings. See Strong v Woolworths Limited [2012] HCA 5; (2012) 246 CLR 182 at [18]; Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 at [16]-[19]. As stated by the High Court, the determination of factual causation under s 5D of the CLA involves the application of the "but for" test of causation: this requires a determination that in accordance with the section, negligence was a necessary condition of the occurrence of harm. That is that on the balance of probabilities the harm in fact occurred to the plaintiff and would not have occurred absent the negligence: Strong, above, at [18].
In my view, consistently with my factual findings, the cause of the plaintiff's wife tripping was her failure to take reasonable care to look where she was walking in the light of the readily observable stack of chairs. I accept the defendant's submissions on this issue.
If, contrary to the views I have expressed as to the breach issue, the stack of chairs should not have been located where it was and should have been placed elsewhere because of it creating an unreasonable hazard, in my view it is more likely than not that the fall of Mrs Khanna would not have occurred. There would have been no stack of chairs to trip on. If the fall of Mrs Khanna had not occurred, then she would not have fallen onto the plaintiff thereby causing him to fall to the ground and injuring himself. In those circumstances, causation would have been established on the "but for" test applicable. I reject the defendant's submission to the contrary.
Contributory negligence
Contributory negligence is pleaded in paragraphs 15 and 16 of the Defence. The particulars in paragraph 15 are general and refer to a failure by the plaintiff to pay attention or keep any or any proper lookout and a failure to take any or any adequate care and precautions for his own safety.
Sections 5R and 5S of the CLA provide as follows:
"5R Standard of contributory negligence
(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
(2) For that purpose -
(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and
(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.
5S Contributory negligence can defeat claim
In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated."
In Lloyd v Thornbury, above, Gleeson JA stated as follows at paragraphs 92-94:
"92. The question of whether a person has been guilty of contributory negligence is to be determined objectively - whether the plaintiff has taken that degree of care for his or her own safety that an ordinary reasonable person would take: Boral Bricks Pty Ltd v Cosmidis (No 2) (2014) 86 NSWLR 393; [2014] NSWCA 139 at [54] (McColl JA); see also at [94] (Basten JA, Emmett JA agreeing).
93. Section 5S provides that, when apportioning responsibility, a court may determine a reduction of 100 per cent in the claimant's damages by reason of contributory negligence.
94. The principles applicable in determining whether a person has been negligent, which include those in s 5B, also apply in determining whether the person who has suffered harm has been contributorily negligent in failing to take precautions against a risk of harm which materialised and resulted in injury: s 5R. Accordingly, the existence and extent of a claimant's contributory negligence is to be assessed by reference to the risk of harm which is the subject of his or her claim for damages, and the precautions that a reasonable person in the claimant's position would have taken against that risk: Gordon v Truong; Truong v Gordon [2014] NSWCA 97; (2014) 66 MVR 241 at [14]- [15] (Basten JA)."
What is in issue here is the contributory negligence of the plaintiff not of Mrs Khanna. An analysis has to be made objectively whether the plaintiff has taken that degree of care for his safety that an ordinary reasonable person would take in the circumstances. This involves the ss 5B and 5C analysis, thus assessing the matter by reference to the risk of harm which is the subject of the plaintiff's claim for damages in the light of the precautions that a reasonable person in the plaintiff's position would have taken against the risk.
In Kabic v AAI Limited t/as GIO [2019] NSWCA 247, the Court of Appeal also confirmed Seltsam, above, and Metro North, above: at [170]-[172].
The Court of Appeal in Kabic emphasised that the approach stated by the High Court to assessing damages in relation to hypothetical and future events in Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 at [640] and [642]-[643] applied also to past hypothetical events. Justice White (with whom Meagher and McCallum JJA agreed) stated at paragraph 174:
"174. The submission did not acknowledge that the principles in Malec v J C Hutton Pty Ltd apply also to past hypothetical events. That is, that in the assessment of past economic loss, account should be taken of the possibility that if he had not been injured, Mr Kabic might have been unable to work as a formworker even up to trial, that was more than five years after his injury."
In DC v State of New South Wales [2016] NSWCA 198 Ward JA stated as follows at paragraphs 352-355:
"352. However, insofar as the appellants rely on the respondent's failure to discharge the Watts v Rake evidentiary onus as entitling them to the whole of their damages, there is a tension between the Watts v Rake and Purkess v Crittenden line of authority on the one hand and that considered in and following Malec, as pointed out by Professor Luntz, Assessment of Damages for Personal Injury and Death (4th ed, 2003, LexisNexis Butterworths).
353. At [1.9.11] in that text, Professor Luntz, discussing the principle derived from the House of Lords decision in Bonnington Castings Ltd v Wardlaw [1956] UKHL 1; [1956] AC 613; 1 All ER 615 (that where an external cause may also have contributed to the plaintiff's condition, the onus of proving causation was satisfied once the plaintiff proved that the defendant had contributed materially to the condition, and where it was impossible to apportion the loss the plaintiff would recover the full amount of its loss; thus there being an evidential onus on the defendant to disentangle the causes (and see the discussion at [1.9.10])), argues that logically the application of the principle of Malec where there is an external contributing cause to indivisible loss would require the Court to evaluate the chance that the harm would have occurred without the defendant's contribution and to reduce the damages recoverable from the defendant accordingly. While it is noted at [1.9.11] that an argument to that effect was rejected in Commonwealth v McLean (1996) 41 NSWLR 389 at 410-411, Professor Luntz postulates (at fn 662) that the "innocent" cause there was one that in any event would be taken into account when making an allowance for contingencies or vicissitudes.
354. Professor Luntz goes on to say at [1.9.14] that:
To reconcile these different lines of authority, it is necessary to say that the plaintiff must prove on the balance of probabilities that the defendant's negligence did contribute materially to the present symptoms (this is the legal onus that rests on the plaintiff). Once that is satisfied, there is an evidential onus on the defendant of proving that the alleged pre-existing or subsequent natural condition did exist and that this condition in its natural progression would have produced similar symptoms. If the defendant is unable to satisfy the evidential burden, the court will reduce the plaintiff's damages for contingencies to no greater extent than in the ordinary case. If, however, the defendant shows that there was a real chance that the plaintiff would have developed similar symptoms from a natural condition attaching to the plaintiff, the court will make a greater reduction than normal to reflect this increased chance. (footnotes omitted)
355. I consider that the reasoning of Professor Luntz is apposite in the present case. Accepting that the respondent did not satisfy the evidential burden (the Watts v Rake burden) of disentangling the relevant causes of harm, the evidence nevertheless established that there was a real chance that the appellants would have developed similar symptoms even in the absence of the respondent's negligence."
Sackville AJA agreed with her Honour's reasons on the issue: at [373]. His Honour also made a useful comment at [393] in relation to psychiatric injuries which often relate to an alleged exacerbation of an antecedent psychiatric disability. Sackville AJ quoted Basten JA in another case as stating that precision in such cases, at least in relation to aetiology, "tends to be an aspiration rather than a reality": New South Wales v Burton [2016] NSWCA 12 at [76]
In determining these issues the entirety of the plaintiff's pre- and post-accident medical history must be taken into account as well as the medico-legal reports provided by Dr Machart and Dr Samuell.
The reference by the plaintiff in his final written submissions to his heart condition does also not appear to be relevant. There is no evidence the heart condition amounted to a relevant incapacity. The plaintiff's heart surgery referred to occurred much later in 2019.
Overall, on the medical evidence, I am not satisfied that the plaintiff was an "incapacitated person" within s 50F(4) of the Limitation Act.
Sections 50C and 50D of the Limitation Act provide as follows:
"50C Limitation period for personal injury actions
(1) An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire:
(a) the 3 year post discoverability limitation period, which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff,
(b) the 12 year long-stop limitation period, which is the period of 12 years running from the time of the act or omission alleged to have resulted in the injury or death with which the claim is concerned.
Note -
The 12 year long-stop limitation period can be extended by a court under Division 4 of Part 3.
(2) For the purposes of the application of the 3 year post discoverability limitation period to a survivor action, the cause of action is taken to be discoverable by the plaintiff at whichever is the earliest of the following times:
(a) the date on which the cause of action is discoverable by the deceased if the cause of action is discoverable by the deceased more than 3 years before the death of the deceased,
(b) the appointment of the plaintiff as the deceased's personal representative if the cause of action is discoverable by the plaintiff at or before the time of that appointment,
(c) the date on which the cause of action is discoverable by the plaintiff if the cause of action is discoverable by the plaintiff after the appointment of the plaintiff as the deceased's personal representative.
(3) For the purposes of a compensation to relatives action, the 12 year long-stop limitation period runs from the death of the deceased.
50D Date cause of action is discoverable
(1) For the purposes of this Division, a cause of action is discoverable by a person on the first date that the person knows or ought to know of each of the following facts:
(a) the fact that the injury or death concerned has occurred,
(b) the fact that the injury or death was caused by the fault of the defendant,
(c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action.
(2) A person ought to know of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact.
(3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person.
(4) To remove doubt, a compensation to relatives action is not discoverable before the date of death of the deceased."
Under s 50C, an action on a cause of action is not maintainable if brought after the expiration of the limitation period which is the period of three years running from and including the date on which the cause of action is discoverable by the plaintiff. This is defined by s 50D. A cause of action is discoverable by the person on the first date that the person knows or ought to know of each of the following facts:
1. The fact that the injury or death concerned has occurred - the evidence satisfies me that the plaintiff knew or believed that he was injured on the date of the accident;
2. The fact that the injury or death was caused by the fault of the defendant - the plaintiff accepted that he formed the view on the day of the accident that there had been a breach of duty of care by the defendant; and
3. The fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action.
In Best v Rosamond [2020] NSWCA 90, Payne JA (with whom Bell P and Leeming JA agreed) stated the following at paragraphs 14-18:
"14. This appeal turns upon the correct application of ss 50C and 50D of the Limitation Act which are set out at [4], above.
15. The appellant accepted that the primary judge had identified the correct test for the operation of ss 50C and 50D of the Limitation Act, being that explained in Baker-Morrison. It was the application of the facts to that legal test which was the subject of complaint. In Baker-Morrison Basten JA, (with whom Ipp JA and Macfarlan JA agreed) in addressing s 50D(1)(c) and actual knowledge, said:
"[41] Although a legal evaluative judgment appears to be required by par (b), that element is even more explicit in par (c). Thus the injury must not only be understood to be serious, but 'sufficiently serious to justify' a course of action. Further, that course is 'the bringing of an action on the cause of action', an objective which would appear to require the exercise of both legal and medical expertise. Similar language is found in the identification of material facts as being 'of a decisive character' for the purposes of s 57B(1)(c), set out at 458 [12] supra. In that provision, the test is stated objectively, by reference to the opinion of a reasonable person, but also by asking whether one 'knowing those facts and having taken the appropriate advice on those facts' would hold the identified opinion.
[42] The construction of par (c) which would involve the person obtaining medical and legal advice gains support from the fact that a number of statutory regimes contain floors or caps on recovery of damages, or both: see, for example, Civil Liability Act, s 16. No proper view could be formed about the justification for bringing an action, absent information of that kind.
[43] It is also appropriate that s 50D be read in a broader context. Thus, a claim for damages for personal injury, brought by a solicitor, must be accompanied by certification in accordance with the Legal Profession Act 2004, s 347. The statement of claim in the present case bore such a certification which read:
'I certify that there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the claim for damages in these proceedings has reasonable prospects of success.'
[44] A further element of the broader legal context is that, for a person such as the plaintiff under legal incapacity, proceedings may not be commenced except by a tutor; nor may the tutor commence proceedings except by a solicitor: Uniform Civil Procedure Rules 2005, r 7.14. To the extent that par (c) requires an assessment of the seriousness of injury sufficient to justify the bringing of proceedings, coherence with the broader statutory framework requires that the person have available to him or her relevant legal and medical information to allow an informed professional judgment to be made."
16. In relation to s 50D(2) and what a person "ought to know" about the "fact" identified in s 50D(1)(c), in Baker-Morrison Basten JA said:
"[57] The next question was whether the plaintiff's mother ought to have known each of the facts identified in subs 50D(1). The answer to that question must depend upon the effect of subs (2). It purports to provide a definition of what is covered by the phrase 'ought to know'. That description is premised on an assumption that the person had not taken all reasonable steps to ascertain the facts, or a particular fact, requiring an assessment to be made of what would have been ascertained had such steps been taken.
[58] In most circumstances, the step of instructing a solicitor will be sufficient for a prospective plaintiff (or the parent of a plaintiff) to satisfy the element of taking 'all reasonable steps'. (In some circumstances there may no doubt be a question as to whether the plaintiff's instructions were adequate or whether other limitations prevented the solicitor from taking proper steps in a timely fashion: no such question arose in the present case.)
[59] The phrase 'ought to have known' can mean either that the person should have inquired as to a fact (the active sense) or that he or she should have been told of the fact (the passive sense). In this context, 'should' connotes a culpable omission, either by the person who should have known, or by the other person who should have supplied advice or information. If the limitation period had been intended to commence, not because of a failure on the part of the putative plaintiff to take reasonable steps, but because of the failure of another person, that could and should have been made clear. Rather, the expression 'ought to know' was identified by reference only to what the putative plaintiff 'would' have found out, if he or she had taken all reasonable steps. That language is apt to engage the active sense of the expression only. Further, the word 'would' (rather than 'should') is inconsistent with any expectation of an inquiry into the conduct of the potential source of information or advice.
[60] It was not suggested that, in the 26 day period after the accident, the plaintiff's mother should reasonably have taken any step which she did not take. Accordingly, unless the plaintiff's mother in fact had the relevant knowledge, the defence must fail.
[61] It may be added that, even if an inquiry into whether the solicitor acted reasonably were called for, the State neither called evidence to show that he had failed, nor cross-examined him to suggest that he had failed, to take particular steps which he should reasonably have taken in order to supply the mother with appropriate advice or information."
17. In Frizelle v Bauer [2009] NSWCA 239, Basten JA (with whom McColl JA agreed) returned to the issue of knowledge for the purposes of s 50D(1)(c) in the context of a case where the plaintiff sustained serious injuries in a fall on 2 July 2003 and sought legal advice on 17 July 2003 but did not commence proceedings until 5 April 2007. The question was whether the plaintiff knew, or ought to have known, prior to 5 April 2004, that her injury was "sufficiently serious to justify the bringing of an action" within the meaning of s 50D(1)(c). Basten JA said:
"[27] There are circumstances in which s 50D may only be satisfied where the applicant has taken all reasonable steps to ascertain a fact which may involve medical or legal evaluation. It was not in doubt in Baker-Morrison (and indeed was conceded) that the mother whose child had been injured did not know either that the injury was caused by the 'fault' of the State or that it was sufficiently serious to justify bringing an action, if such knowledge required the application of any degree of professional expertise or assessment: at [24]. Nor was it established that there were any steps that she ought to have taken, but did not, within the period of 26 days following the accident, which was the period in issue in that case.
[28] The present case falls into a different category. The period during which the necessary assessment had to be made was a period of some nine months after the date of the accident. The fact that further evidential material might need to be gathered was beside the point, so long as the seriousness of the injury could reasonably have been assessed within that period. Further, the issue was not the threshold in the Civil Liability Act with respect to non-economic loss, but the quantum of the applicant's economic loss. No doubt her prognosis remained somewhat uncertain in April 2004, but the primary judge was satisfied that the impairment of her earning capacity, and the likelihood that it would continue, was known to her at least by early 2004. On the evidence, that finding has not been shown to be open to significant doubt.
[29] At the heart of the applicant's claim was the suggestion in the affidavit, not fully supported when taken into account with the cross-examination, that she did not believe that she had a cause of action in relation to an injury which was sufficiently serious to justify the bringing of the action because of advice received from her solicitors. His Honour found that the injury 'obviously was a serious one and the plaintiff conceded that in her evidence': Judgment, p 8. He then noted that there was a further question as to whether it was sufficiently serious to justify the bringing of an action, and continued (pp 8-14) to consider whether that was so. In the passages set out above, he concluded that it was sufficiently serious and that the applicant appreciated that fact.
[30] There may be a case in which the applicant has taken all reasonable steps to ascertain facts depending upon the advice of professional persons, but, having been given wrong advice, does not have the necessary state of mind. According to Baker-Morrison, the terms of s 50D(1) may not be engaged: see, Baker-Morrison at [59]. That, however, is not the present case and the correctness of that view does not arise."
18. The test for determining what a person "ought to know" about the "fact" identified in s 50D(1)(c) identified by Basten JA has been applied as the law in NSW since Baker-Morrison. In Gillett, Beazley JA (with whom McColl, Campbell, Young and Whealy JJA agreed) said:
"[104] In my opinion, there was no error of construction in the challenged portions of Baker-Morrison on this issue. As I understand his Honour's reasons, Basten JA was doing no more than postulating an objective test. For the purposes of s 50D(2), the court had to determine whether a fact within the meaning of s 50D(1) would have been ascertained if a person had taken all reasonable steps to ascertain it before the relevant date. This would involve an inquiry of the steps actually taken by the plaintiff, if any, and whether those steps satisfied the court's determination of what were reasonable steps to take in the particular circumstances of a given case."
The plaintiff's evidence was that although he knew he was injured on the day of the accident, he did not realise that it was a serious injury until 30 March 2016, after a medical consultation on that day, within the three year period prior to when the Statement of Claim was filed, and well after he had consulted his general practitioner on a number of occasions. The issue here is whether the plaintiff knew or ought to have known that the injury was sufficiently serious to warrant consulting a solicitor to determine whether the evidence was sufficient to justify the bringing of an action on the cause of action. In Best, Payne JA applied the test stated in earlier cases that the court has to determine whether a fact within the meaning of s 50D(1) would have been ascertained if a person had taken all reasonable steps to ascertain it before the relevant date. On the present evidence, the plaintiff accompanied his wife to see a solicitor in relation to her injuries. The incident report establishes that this must have been on or before 28 October 2015: Exhibit A page 29. The plaintiff also stated that he consulted a solicitor in 2016 but could not recall the date. There is no evidence that it was before 29 January 2016.
The evidence before the court shows that the plaintiff had made prior claims for compensation including in relation to the 2009 incident and at least one motor vehicle accident: Exhibit 1 pages 82-90; Exhibit 1 page 173. The plaintiff believed he had injured at least his right knee in the April 2015 accident and it was causing him ongoing difficulties in 2015: Exhibit 1 pages 36-38. Mr Khanna gave evidence to the effect that four to five months after the accident (that is in August-September 2015) he was in "terrible pain": T122.48.
Unlike in Frizelle above, there would not have been a claim for economic loss in the present case - the plaintiff was receiving a disabled pension. The real potential areas for consideration were non-economic loss, future out of pocket expenses and possibly domestic assistance. The extent of the plaintiff's injuries and the effect on him were central.
In those circumstances, in my view a reasonable person in the position of the plaintiff would have taken steps to consult a solicitor in relation to his condition after the consultation with his general practitioner on 22 October 2015 (see Exhibit 1 page 36). He had been with his wife to see a solicitor arising out of the same incident. On the medical evidence before the court, an injury to the plaintiff's knee would have been clear and established. It was an injury which was causing ongoing problems including ongoing "terrible" pain to the plaintiff (on his evidence). In my view, the injury was therefore a serious injury within the section. In these circumstances, in my view the plaintiff ought to have known that he needed to consult a solicitor in 2015 to ascertain whether the injury was sufficiently serious to justify the bringing of an action on the cause of action. See the plaintiff's claimed particulars of damage. The plaintiff also indicated that the accident had caused some pain in his lower back region. If the plaintiff had consulted a solicitor, which he should have, in my view the solicitor would have taken steps to take a statement from the plaintiff, to obtain a medical report and determine the plaintiff's ongoing problems. On the evidence, this would have established that the injury was sufficiently serious to justify an action assuming the plaintiff's evidence of the incident was accepted. That is because it would have been made clear that there were reasonable prospects of the threshold in s 16 of the CLA being exceeded. I find that this would all have occurred well before 29 January 2016. However, I reject the defendant's primary submission that all relevant facts were known to the plaintiff on and from 18 April 2015.
Accordingly, the plaintiff's action has been brought after the expiration of a limitation period being a period of three years running from the date on which the cause of action was discoverable by the plaintiff. It is therefore, in my opinion, barred under s 50C of the Limitation Act.
In case I am in error in relation to this conclusion, I proceed to consider whether the plaintiff's claim would otherwise have been established.
The plaintiff gave evidence, which I accept, that the photographs in Exhibit A were taken by him on the day of the accident and show where the chairs were stacked and placed when the plaintiff's wife tripped. I have also accepted that the plaintiff's wife by her left foot tripped on the front left legs of the chairs in the stack of dark coloured chairs closest to the front of the store as shown in Exhibit A pages 45-46.
The question therefore arises as to the relevant duty of care, if any, which was owed to the plaintiff and his wife by the defendant as the occupier store owner. The plaintiff and his wife were customers attending the defendant's premises to shop.
In Jackson v McDonald's Australia Ltd [2014] NSWCA 162 at [7]- [8], McColl JA stated as follows:
"Duty of care
7. It was common ground that McDonald's owed the appellant a duty to take reasonable care to avoid a foreseeable risk of injury to him arising from the physical state of its land, on the assumption that he used reasonable care for his safety: Australian Safeways Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 (at 488) per Mason, Wilson, Deane and Dawson JJ; Roads & Traffic Authorities (NSW) v Dederer [2007] HCA 42; (2007) 234 CLR 334 (at [45]) per Gummow J. The appellant submitted that Holistic's duty was relevantly identical with McDonald's, a proposition Holistic did not dispute insofar at least as liability to the appellant was concerned.
8. Gleeson JA (with whom Emmett JA and Tobias AJA agreed) addressed the content of the assumption that an entrant uses reasonable care for his or her safety in his pellucid judgment in Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 (at [159]) as follows:
"[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 plaintiffs will exercise reasonable care for their own safety is a general matter in the assessment of breach in every case': Roads and Traffic Authority of New South Wales v Dederer and Another [2007] HCA 42; 234 CLR 330 at [45] (Dederer). This involves a factual judgment which may depend on the circumstances of the case: Thompson v Woolworths (Q'land) Pty Ltd [2005] HCA 19; 221 CLR 234 at [35]."
At paragraph 82 in the same case, Barrett JA (with whom Ward J agreed) stated as follows:
"Duty of care
82. McDonald's was under a duty to exercise reasonable care to prevent foreseeable and not insignificant risks of harm to persons coming on to the premises and that duty included the obligation to take precautions that a reasonable person in the circumstances would have taken by way of a response to the risk that a person may slip on the stairs: Civil Liability Act s 5B; Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; 162 CLR 479; Coles Supermarkets Australia Pty Ltd v Meneghello [2013] NSWCA 264 at [50]. That duty subsisted, in the present case, in relation to premises visited by many people each day."
In Patrick Stevedores Operations (No 2) Pty Ltd v Hennessey [2015] NSWCA 253, Leeming JA (with whom McColl JA agreed) stated as follows at paragraph 53:
"53. Finally, the scope of an occupier's duty is delimited by the expectation that users will exercise reasonable care for their own safety: see Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [159] and Jackson v McDonald's Australia Ltd at [8]. As Gummow J observed in Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; 234 CLR 330 at [45], the expectation that a potential plaintiff will exercise reasonable care in a case such as the present goes not merely to the assessment of breach, but is a "specific element contained, as a matter of law, in the scope of the ... duty of care"."
Based on the principles stated in these cases, in my view the defendant Woolworths in the present case owed the plaintiff and his wife as customers attending the store of the defendant, a duty to take reasonable care to avoid a foreseeable and not insignificant risk of injury to them arising from the state of the store where a customer could reasonably walk, including in relation to the placement of goods, on the assumption as an element contained in the scope of the duty of care, that the plaintiff and his wife would exercise reasonable care for their own safety.
In paragraphs 49-51 of the Patrick Stevedores case above, Leeming JA stated as follows:
"49. "Negligent" in this context means failure to exercise reasonable care and skill: s 5. It was not disputed that the risk of someone slipping, falling and injuring himself or herself while stepping up into the hut was both foreseeable and not insignificant. Even so, s 5B(1)(c) means that a plaintiff must fail in an action for negligence based on a failure to take precautions unless the plaintiff discharges the onus of showing that a reasonable person in the defendant's position would have taken the precautions. The fact that s 5B(1)(c) is a necessary element of a plaintiff's success in litigation to which it applies is plain on the face of the section, and was confirmed by the High Court in Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420 at [34].
50. As McColl JA observed in Jackson v McDonald's Australia Ltd at [11], the requirement in s 5B(1)(c) reflects the formulation of principle by Deane J in Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614 at 663 that the measure of the discharge of Patrick Stevedores' duty is what a reasonable person would, in the circumstances, do by way of response to the foreseeable risk. That formulation was approved in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488.
51. The essential issue posed by s 5B(1)(c) as to what a reasonable person would have done in response to the risk must be considered prospectively: Adeels Palace Pty Ltd v Moubarak at [31] and [40]. The court's determination of these questions is subject to the limitations imposed by s 5C of the Civil Liability Act, including in paragraph (c) that
"the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.""
In Lloyd v Thornbury [2019] NSWCA 154, Gleeson JA (with whom White JA agreed) stated in paragraph 44 that what precautions against the relevant risk of harm were reasonable in the circumstances is to be determined taking account of s 5B of the CLA. That Act applies in the present circumstances.
It is accordingly necessary to identify correctly the risk of harm in the present case. In paragraphs 47-48 of Lloyd v Thornbury, above, Gleeson JA stated the following in relation to the identification of the risk of harm:
"47. It is well established that the correct identification of the risk of harm is necessary before "one can assess what a reasonable response to that risk would be": Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; [2007] HCA 42 (Dederer) at [59] (Gummow J).
48. In Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council (2015) 91 NSWLR 752; [2015] NSWCA 320 at [118]- [122], Leeming JA (Basten and Simpson JJA agreeing) emphasised two matters. One is that the risk is not to be confined to the precise set of circumstances which are alleged to have occurred, although it must encompass those circumstances. The other is that while there may commonly be a range of appropriate formulations of the generality of the risk of harm, ordinarily it is unnecessary and undesirable to define the relevant risk of harm with too much particularity. See also: Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1; [2015] NSWCA 90 at [106] (Barrett JA, Gleeson JA and Tobias AJA)."
In my view, the relevant risk of harm in the present case was the risk that customers of the Masters store walking within the premises would not see or reasonably perceive stacks of chairs at the end of an aisle and would trip on the chair legs and thereby injure themselves. In relation to the plaintiff, the risk of harm was of someone close to a person falling after tripping on the chair legs attempting to stop their fall and being struck by the person falling and thereby injuring theirself.
In the Patrick Stevedores case, above, Leeming JA stated that the measure of the discharge of a defendant's duty of care is what a reasonable person would, in the circumstances, do by way of response to the foreseeable risk. See also Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488. This must be considered prospectively and the fact that measures that could have been taken by Woolworths to divert or diminish the risk that actually materialised, does not necessarily establish breach. As stated above, it is also always assumed that users of the store will exercise reasonable care for their own safety.
Section 5 of the CLA defines "negligence" as a failure to exercise reasonable care. The court must consider ss 5B and 5C of the CLA which provide as follows:
"Division 2 Duty of care
5B General principles
(1) A person is not negligent in failing to take precautions against a risk of harm unless -
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) -
(a) the probability that the harm would occur if care were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of harm.
5C Other principles
In proceedings relating to liability for negligence -
(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and
(b) 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, and
(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk."
The plaintiff submits that the defendant should not have placed the stacks of chairs near the end of the aisle thereby creating a trip hazard having regard to the limited space at the end of the aisle for customers to walk, the angle of the chair legs and the number of customers in the shop.
The defendant submits that the stack of chairs in question and the white table were obvious and could clearly be seen by any customer exercising care for their own safety. Their placement was obvious. Mrs Khanna agreed that the chairs could be seen. It was submitted that any reasonable person would realise that the lowest chair on the stack of chairs would touch the floor. A similar submission was made in relation to the legs of the white table shown in Exhibit A pages 44-45. It was submitted that the plaintiff's wife tripped purely through a failure to exercise reasonable care for her own safety.
I consider the elements in s 5B of the CLA in the light of s 5C on the facts of the present case:
1. The risk was foreseeable, that is, it is a risk of which the defendant knew or ought to have known - in my view, it was not foreseeable, in the sense of being a risk of which the defendant ought to have known, that a customer of the store may trip on the legs of a stack of chairs placed near the end of the aisle and thereby fall over. I accept that it was foreseeable that if someone did fall as a result of negligence that someone near them could take action to stop the fall and thereby injure themselves;
2. The risk was not insignificant - in my view, the risk of someone not seeing the stack of chairs in question and paying attention to the legs on the base of the chairs and thus tripping was insignificant. The plaintiff's wife accepted that someone could see the stack of chairs from a long distance away. The stack of chairs was in my view obvious. Any reasonable person would realise that a stack of chairs would have a chair at the bottom of the stack whose legs would touch the floor. Reference was made by the plaintiff to the fact that the legs of the chairs came out at an angle (he asserted they were jutting out). There was very limited evidence as to this. The photographic evidence, in relation to which caution must always be exercised, did not indicate that the legs came out at an unusual or unreasonable angle: see Exhibit A pages 45-47 and T315.17 and T316.49. There was no expert evidence on the issue. Even taking into account there would be expected to be many customers in the store, in my view the risk was insignificant;
3. Whether a reasonable person in the position of the defendant would have taken the precautions indicated - the precautions indicated are set out in the particulars of negligence in paragraph 12 of the Statement of Claim. In my view, on the evidence, placement of the chairs in the location the stack was placed did not create a hazard. On the photographic evidence, there were four stacks of chairs next to each other. In my view, there was nothing unreasonable in placing the chairs where they were placed. The photographic evidence indicates a wide, open area for pedestrians to walk at the end of the aisle. If the evidence of the plaintiff and his wife is accepted that they entered the store and then turned right (whether after walking up an aisle or not), even taking into account considerable pedestrian traffic, in my view a reasonable person in the position of the defendant would not have taken the precautions indicated of moving the chairs to another location;
4. The probability that the harm would have occurred if care were not taken - in my view, the probability is very low. There was no evidence of any other falls arising from the stack of chairs in question. The stack of chairs appears obvious on the photographic evidence. In my opinion, it was not probable at all that a reasonable person in the position of the plaintiff or his wife exercising care for their own safety, would not have seen or perceived or readily observed the stack of chairs including the legs of the chairs. In my view, it is improbable that a person would trip on the legs of the chairs and fall and strike someone near them causing the latter person injury;
5. The likely seriousness of the harm - a person not seeing the stack of chairs and falling by tripping on the leg of a chair may involve serious injuries to themselves and others in the vicinity;
6. The burden of taking precautions to avoid the risk of harm - there was not a significant burden on the defendant in moving the stacks of chairs to another location. However, wherever the chairs were moved, they would create some minor and insignificant risk of tripping if a person did not exercise reasonable care for their own safety;
7. The social utility of the activity that creates the risk of harm - it is clearly important that people have safe access to the shopping stores to look at goods before purchasing;
8. The risk of injury of falling by tripping on the leg of the chair is in my view obvious;
9. Taking into account all of the matters I have indicated, in my view a reasonable person in the position of the defendant in the present case would not have taken any of the precautions particularised in paragraph 12 of the Statement of Claim.
Taking into account all of the matters which I have indicated, in my view there was no breach of duty of care by the defendant. In considering this, I have taken into account each of the particulars of breach in paragraph 12 of the Amended Statement of Claim. I have also considered the plaintiff's submissions on the breach issue.
I would also have reached the same conclusion even if the plaintiff's wife tripped on the legs of the white collapsible table shown in Exhibit A page 44 as opposed to the left front legs on the last stack of dark coloured chairs. The table and its legs were clear and obvious to any reasonable customer. The risk of a customer tripping on the table leg was not foreseeable, was insignificant and a reasonable store operator would not have removed the table. The probability of harm occurring if the table was not removed was in my view very low in relation to a customer exercising reasonable care for their own safety.
In my view, the risk in the present case of the plaintiff falling if she did not exercise reasonable care for her own safety in walking near the stack of chairs was an obvious risk within s 5F of the CLA as it would be obvious to a reasonable person in the position of Mrs Khanna and the plaintiff taking care for their own safety. The risk was clear and patent. Mr Khanna was essentially walking near his wife but further away from the stack of chairs. The duty owed to him was satisfied by the defendant taking reasonable precautions to avoid a trip and fall to another customer on the chairs. The stack of chairs in my view was clearly able to be seen by any approaching customer: see T315.1. There was nothing in the circumstances of the location of the chairs or the nature of the chairs that rendered it necessary for Woolworths to draw further attention to the chairs by way of a warning. The legs of the chairs were a hazard of an ordinary character that a person walking through the store would be expected to encounter and could be expected to watch out for: Council of the City of Sydney v Bishop [2019] NSWCA 157 at [29]; Ghantous v Hawkesbury City Council (2001) 206 CLR 512; [2001] HCA 29 at [355]. Woolworths was entitled to assume that a person in the position of Mrs Khanna would take care not to trip on the legs of the chairs. Accordingly, the risk in the present case was an obvious risk within s 5F of the CLA and there was thus no proactive duty on the defendant to warn the plaintiff or Mrs Khanna of the obvious risk. Negligence based on a failure to warn is therefore rejected.
I would have reached the same conclusion in relation to the white collapsible table shown in Exhibit A page 44 and its supporting legs.
The plaintiff submits that there was no contributory negligence in the present case by him.
In my view, that submission should be accepted. It is clear in my view that Mrs Khanna was contributorily negligent. She should clearly have seen the stack of chairs and avoided a trip on the legs of the stack. An ordinary reasonable person in her position would have ensured that they walked sufficiently far away from the stack to avoid the chair leg.
However, the plaintiff did not trip on the chair leg. He was walking near her. There is nothing to indicate in my view applying the ss 5B and 5C analysis that he did not take that degree of care for his safety that an ordinary reasonable person would take in the circumstances. There is no satisfactory evidence that his injuries were caused by attempting to help his wife up as opposed to the fall. In my view, contributory negligence is therefore not established against the plaintiff in the event a breach of duty is established. For these reasons, I reject the defendant's submissions on this issue.