Mr Khanna brought proceedings in negligence against Woolworths in relation to personal injuries which he allegedly suffered on 18 April 2015 at a Masters Home Improvement store at Rouse Hill. Mr Khanna's case was that his wife tripped on the leg of a stack of chairs in the Masters store which was negligently placed by Woolworths creating a trip hazard, which caused her to fall, and that in the process of attempting to stop her falling, Mr Khanna himself fell causing injuries to himself. The trial occupied over ten days.
After a detailed and careful review of the evidence, the primary judge (Dicker SC DCJ) found that Mrs Khanna tripped on the front left legs of the chairs in the final stack of dark coloured chairs closest to the end of the aisle and that she fell and landed on her knees hurting herself: at [175(7)]. He further found that Mr Khanna fell injuring his right knee but did not fall backwards hitting his head, as he claimed, that he then got up and that he and bystanders assisted his wife to a nearby lounge: at [175(8)].
Addressing the limitation defence pleaded by Woolworths, the judge set out the terms of ss 50C and 50D of the Limitation Act 1969 (NSW), noting that s 50C applies 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 (s 50A).
Relevantly, s 50C of the Limitation Act provides that a proceeding on a cause of action for damages that relates to personal injury is not maintainable if brought after the expiration of the three-year post discoverability 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. Section 50D provides that a cause of action is "discoverable" by a person on the first date that the person knows or ought to know 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.
Section 50D(2) provides that 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.
The judge found that Mr Khanna 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 that relates to a personal injury, and this occurred well before 29 January 2016. Accordingly, Mr Khanna's action, which was commenced by statement of claim filed on 29 January 2019, was brought after the expiration of the limitation period and therefore barred under s 50C of the Limitation Act: at [192].
Against the possibility that the conclusion on the limitation defence was wrong, the judge proceeded to consider Mr Khanna's claim in negligence.
Accepting that Woolworths owed Mr Khanna and his wife a relevant duty of case as invitees to its Masters store, the judge identified the relevant risk of harm as the risk that customers of the Masters' store walking within the premises see or reasonably perceive stacks of chairs at the end of an aisle and would trip on the chair legs and thereby injure themselves: at [202]. In relation to Mr Khanna, the risk of harm was identified as someone close to a person falling after tripping on the chair legs attempting to stop their fall and being struck by the person falling injury themselves: at [206]. After a careful analysis of the elements of s 5B, in light of s 5C of the Civil Liability Act 2005 (NSW), the primary judge found there was no breach of duty of care by Woolworths: at [212].
Insofar as the alleged negligence involved a failure to warn of the alleged hazard, the judge found that the risk of harm in the present case was an obvious risk within s 5F of the Civil Liability Act and thus there was no proactive duty on Woolworths to warn Mr Khanna or Mrs Khanna of the obvious risk which his Honour identified: the stack of chairs clearly able to be seen by any approaching customer which would have legs having contact with the ground which may come out at an angle: at [217].
On the assumption that Mr Khanna had established breach of duty by Woolworths, the judge found that causation would have been established on the 'but for' test, he rejected Woolworths defence of contributory negligence as against Mr Khanna. As indicated, the judge contingently assessed damages in a total amount of $56,294.60: at [272].
[2]
Proposed grounds of appeal
Neither Mr Khanna's summary of argument nor draft notice of appeal identified briefly, but specifically, the grounds relied on in support of the appeal or any asserted error in law or fact. Instead, the summary of argument identified nine issues which make the following complaints, some of which are related:
1. that Woolworths failed to produce documents in answer to a notice to produce dated 9 November 2020 and 5 March 2021 (Issue 1);
2. that the primary judge erred in refusing leave to Mr Khanna to issue a subpoena to the CEO and Proper Office of Public Liability of Woolworths (Issue 6);
3. that the finding that the action was barred by s 50C of the Limitation Act was wrong (Issue 8);
4. that the primary judge's findings in relation to breach of duty were wrong (Issues 2, 3, 4, 5 and 6 (in part));
5. that the finding in relation to obvious risk was wrong (Issue 7);
6. that Mr Khanna suffered medical injuries (Issue 9).
In its response, Woolworths took the position that it did not consent to the grant of leave and submitted to the orders of the Court, save as to costs. However, Woolworths also made brief written submissions that no comprehensible grounds of appeal were identified by Mr Khanna. On the hearing, Woolworths appeared by counsel and actively opposed the grant of leave.
[3]
Leave should be refused
The first complaint by Mr Khanna concerns the asserted failure by Woolworths to produce documents in answer to notices to produce dated 9 November 2020 and 5 March 2021. The short answer to this complaint is that there was no evidence of non-compliance by Woolworths, as the primary judge observed in his interlocutory judgment given on 22 June 2021 when refusing Mr Khanna leave to issue a subpoena to Woolworths. This complaint goes nowhere.
The second complaint concerning the judge's discretionary decision to refuse leave to issue a subpoena to Woolworths faced the difficulty that the Court exercises great restraint in interfering with an interlocutory decision on a matter of practice and procedure: Re in the Will of Gilbert (1946) 46 SR (NSW) 318; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39. Moreover, Mr Khanna did not identify any House v The King error in this discretionary decision: House v The King (1936) 55 CLR 499 at 504 to 505; [1936] HCA 40.
In his ex tempore judgment given on 22 June 2021, the judge listed ten matters which he had taken into account, and an additional matter; the medical evidence relating to Mr Khanna and the difficulties which he had frequently referred to in relation to his medical issues and concentration. The judge concluded that balancing all those matters it did not appear that the evidence sought to be obtained from the witness was of such a nature as it would be relevant to the underlying issues in the case; rather, the application was made on a speculative basis that there may be relevant documents.
Further, and in any event, the judge found there were good discretionary reasons to refuse the application: (a) the delay in making the application, given that the issue of issuing a subpoena had first been raised by the Court with Mr Khanna at the commencement of the hearing in March 2021 and the application was only made on the seventh day of the hearing on 22 June 2021, and (b) if the application was granted an adjournment of at least one month would be necessary, which would further delay the proceedings.
In refusing leave to issue a subpoena, the judge did not proceed on the basis of any wrong principle, nor have regard to irrelevant considerations, nor did he fail to take into account any material consideration. Nor did he misstate the facts. No such error that might attract appellate intervention was identified in Mr Khanna's submissions.
The third complaint concerning the limitation defence upheld by the primary judge, relied upon the same submissions as made by Mr Khanna at trial. Mr Khanna submitted that he did not realise he had suffered a serious injury until 30 March 2016, after a medical consultation that day, which was within the three-year period prior to the filing of the statement of claim on 29 January 2019.
In rejecting this submission, the judge referred to the evidence that Mr Khanna believed he had injured at least his right knee in the April 2015 accident, it was causing him ongoing difficulties in 2015, that four to five months after the accident (that is, in August-September 2015) he was in "terrible pain", and that after consultation with his general practitioner on 22 October 2015, a reasonable person in the position of Mr Khanna would have taken steps to consult a solicitor in relation to his condition. The judge found that the injury was a serious injury and if Mr Khanna had consulted a solicitor, which he should have, the solicitor would have taken steps to obtain a statement from Mr Khanna and obtain a medical report and determine Mr Khanna's ongoing problems, which on the evidence, the injury was sufficiently serious to justify an action assuming Mr Khanna's evidence of the incident was accepted. The submissions by Mr Khanna in this Court did not identify any fairly arguable basis for challenging these findings.
The fourth complaint concerning the judge's findings in relation to breach of duty failed to identify any error of law or fact. Insofar as Mr Khanna asserted that the "entire floor was slippery" and that he or his wife "could have slipped from debris losing their balance", those complaints were outside the particulars of negligence pleaded in par 12 of the amended statement of claim and such a case was not run at trial, as the judge recorded at [172] of his reasons.
The fifth complaint concerning the finding that there was no failure to warn of an obvious risk, did not identify any arguable basis for challenging this finding.
The sixth complaint, that Mr Khanna suffered medical injuries, goes nowhere. Mr Khanna failed to identify any error in the judge's contingent assessment of damages, nor point to any material in support of such a challenge.
One further matter should be mentioned. Insofar as Mr Khanna's summons seeking leave to appeal refers to the judge's orders made on 10 December 2021 dismissing with costs Mr Khanna's notice of motion filed 10 November 2021 seeking reconsideration of the judgment, no error of law or fact was identified by Mr Khanna in his summary of argument or draft notice of appeal.
Leave to appeal should be refused because the proposed appeal does not raise any issue of principle or question of general public importance. Nor do any of the complaints by Mr Khanna raise an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well-established that it is not sufficient merely to show that the trial judge was arguably wrong: Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28].
There is no reason why costs of this application should not follow the event: UCPR, r 42.1.
[4]
Orders
I propose the following orders:
1. Summons seeking leave to appeal dismissed.
2. Applicant to pay the respondent's costs in this Court.
LEEMING JA: I agree with Gleeson JA.
[5]
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: 14 June 2022
Solicitors:
Self-represented (Applicant)
HBA Legal - Sydney (Respondent)
File Number(s): 2021/327025
Decision under appeal Court or tribunal: District Court of New South Wales
Jurisdiction: Civil
Citation: [2021] NSWDC 567
Date of Decision: 20 October 2021
Before: Dicker SC DCJ
File Number(s): 2019/30652
Judgment
GLEESON JA: The applicant, Sanjeev Khanna, seeks leave to appeal from: (a) a judgment and orders made in District Court on 20 October 2021 giving judgment for the respondent, Woolworths Group Limited (Woolworths), in a personal injury claim brought by Mr Khanna against Woolworths and ordering Mr Khanna to pay Woolworths' costs of the proceedings as assessed, and (b) an interlocutory judgment given in the District Court proceedings on 22 June 2021 refusing Mr Khanna leave under Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 7.3(1) to issue a subpoena to the "CEO and Proper Officer of Public Liability" of Woolworths.
Leave to appeal is required if the amount in issue is less than the threshold of $100,000: Supreme Court Act 1970 (NSW), s 101(2)(r). In this case, the primary judge contingently assessed damages in the amount of $56,294.60. In order for an appellant to establish that s 101(2)(r) of the Supreme Court Act does not deprive the appellant of an appeal as of right the appellant must show that he or she has a realistic prospect on appeal of obtaining judgment in their favour for at least $100,000: Pawlowska v Zajglic [2011] NSWCA 118 at [14]-[15] (Campbell JA).
Mr Khanna was self-represented. He did not submit that he had an appeal as of right. He was correct not to do so, notwithstanding that he had asserted an entitlement to compensatory damages of $133,480 in par 7 of his affidavit dated 10 November 2021, filed in support of an application below for reconsideration of the judgment. That bare assertion was not evidence of the amount that he could realistically claim as damages. It is sufficient to highlight the absence of material supporting Mr Khanna's asserted claim in two areas.
First, insofar as the judge contingently assessed Mr Khanna's non-economic loss as 21 per cent of a most extreme case, which equated to 4 per cent as a proportion of the maximum amount that may be awarded for non-economic loss (4 per cent of $693,500 is $27,740), Mr Khanna did not point to any material which supported his claim to non-economic loss assessed as a minimum of 26 per cent of a most extreme case, which equated to 8 per cent as a proportion of the maximum amount that may be awarded (8 per cent of $693,500 is $55,480).
Second, insofar as the judge assessed Mr Khanna's past medical expenses as $500 and future out of pocket expenses as $11,000, again Mr Khanna did not point to any material supporting his claim for increased prescriptions of $10,000, visiting past and future specialists of $10,000 and surgery on legs and knees of $25,000.
It is appropriate to proceed on the basis that leave to appeal is required as the amount in issue is below the threshold of $100,000.