MATOUK v HUNGRY JACKS

Supreme Court of NSW|2009-09-14|Before: Mathews AJ, Mr J

Background 1 On 22 December 2008 the plaintiff, Pierre Matouk, commenced proceedings in this Court seeking damages for personal injuries. The claim arouse out of an incident which occurred at a Hungry Jacks store at Warwick Farm on 10 August 2008. That morning the plaintiff went to Hungry Jacks and bought some food which he took to a table provided for that purpose. He went to sit down on a seat at the table, but the seat collapsed, causing him to fall onto the ground. He was taken by ambulance to Liverpool Hospital where he complained of back pain and partial aesthesia in his left leg. An x-ray of the spine showed no fractures and the plaintiff was discharged later that day. 2 The plaintiff claims that as a result of the injuries sustained in this fall he has suffered numerous physical and psychological symptoms, as I shall describe shortly. These in turn have meant that he has been unable to return to his pre-injury employed as a plumber's labourer. 3 The Statement of Claim asserts, in the alternative, that each of the defendants was the occupier of the relevant premises. It raises causes of action in both negligence and breach of contract. A Defence filed on behalf of both defendants admits that the first defendant, Hungry Jacks Pty Limited, was the occupier of the premises. Liability is denied, and contributory negligence asserted.

The Present Application 4 On 24 July 2009 the plaintiff filed a notice of motion seeking an order pursuant to s82 of the Civil Procedure Act 2005 (the Act), that the first and/or the second defendant pay to the plaintiff as part of his damages such amount as the Court deems appropriate. 5 In support of the application the plaintiff has sworn an affidavit annexing financial records and medical reports. Mr J Anderson, who appeared for the plaintiff on the application, also tendered a report prepared by a civil engineer, Mr Hugh Cowling. I shall be discussing these documents a little later. The evidence relied on by the defendants is annexed to an affidavit of the defendants' solicitor, Ms Amanda Bond, and consists of reports from an orthopaedic surgeon and an occupational therapist. 6 Before discussing the evidence, it is appropriate to turn to the relevant legislation. 7 Section 82 of the Act provides as follows:- 82 Court may order interim payments (1) In any proceedings for the recovery of damages, the court may order a defendant in the proceedings to make one or more payments to the plaintiff of part of the damages sought to be recovered in the proceedings. (2) The court may make such an order against a defendant on the application of the plaintiff at any stage of the proceedings. (3) The court may not make such an order unless:- (a) the defendant has admitted liability, or (b) the plaintiff has obtained judgment against the defendant for damages to be assessed, or (c) the court is satisfied that, if the proceedings went to trial, the plaintiff would obtain judgment for substantial damages against the defendant. (4) The court may not make such an order if the defendant satisfies the court that: (a) the defendant is not insured in respect of the risk giving rise to the plaintiff's claim for the recovery of damages, and (b) the defendant is not a public authority, and (c) the defendant would, having regard to the defendant's means and resources, suffer undue hardship if such a payment were to be made. (5) The court may order a defendant to make one or more payments of such amounts as it thinks just, but not exceeding a reasonable proportion of the damages that, in the court's opinion, are likely to be recovered by the plaintiff. (6) In estimating those damages, the court is to take into account any relevant contributory negligence, and any cross-claims, on which the defendant may be entitled to rely. (7) …" 8 There is no suggestion that subs(4) applies so as to preclude the making of an order in this case. 9 As to subs(3), no admission of liability has been made by either defendant, nor has the plaintiff obtained judgment against them. Accordingly, the provisions of subs(3)(c) need to be satisfied before an order can be made. I am told by Mr D Kelly, who appeared for the defendants on the application, that there is no precedent for the making of an order under subs3(c) where liability is disputed. All orders which have thus far been made under s82 have been in situations where either judgment has already been obtained or the defendant has admitted the essential ingredients of liability. 10 Pursuant to s82(3)(c), an order can be made only if the Court is satisfied of two matters: first, that if the proceedings went to trial the plaintiff would obtain judgment against the defendant or defendants; secondly, that the judgment would be for "substantial damages". Accordingly the Court must make a preliminary assessment in relation to both liability and likely damages when an order is sought under this provision. 11 During the course of submissions, there was debate between Counsel as to the level of satisfaction which the Court should reach before making an order under s82(3)(c). it is unnecessary for present purposes to go through the case law on this subject, for both counsel ultimately agreed with the proposition that the Court should be "comfortably satisfied" of the matter in question. In my view this approach is appropriate and is consistent with authority. I therefore propose to adopt this standard when considering the issues of liability and damages. I turn now to discuss those issues.

Likelihood of plaintiff obtaining judgment in the proceedings 12 It is necessary first to examine the circumstances of the plaintiff's accident. 13 The area where the plaintiff sustained his injury was an outdoor eating area attached to the Hungry Jacks store. It consisted of a number of fixed circular tables which were surrounded by four fixed stools. Each stool consisted of a central steel vertical post which was attached at its base to the brick paving which constituted the flooring of the area. At the top of the post was a horizontal square stainless steel mounting plate. This plate formed the base to which the seat of the stool was attached. The seat consisted of a circular piece of terrazzo cement with flat surfaces above and below. 14 The accident happened on a Sunday morning, 10 August 2008. The plaintiff attended Hungry Jacks with a friend. He purchased food and then took it to one of the tables. He went to sit down on a stool beside the table, but the circular cement seat came away from the steel mounting plate, causing him to fall backwards to the hard paving ground. 15 The plaintiff tendered the report of Hugh Cowling, a civil and construction engineer, as to the cause of the plaintiff's accident. Mr Cowling attended the accident site with the plaintiff in June 2009. He examined a number of seats in the eating area, including the one which had collapsed under the plaintiff. In particular, Mr Cowling was concerned to ascertain the method by which the circular terrazzo seat had been attached to the square mounting plate. For it was abundantly clear from a photograph taken shortly after the plaintiff's accident that his fall was caused by the seat detaching itself from the mounting plate and collapsing onto the ground as soon as the plaintiff sought to put his weight upon it. 16 Mr Cowling expressed surprise at the "unusually haphazard and somewhat eclectic methods" used to attach the cement seats to the mounting plate at the top of the fixed columns. The principal method of attachment was a mechanical one, whereby screws or bolts and nuts were inserted through three equidistant holes in the mounting plates and into the base of the circular seats. Mr Cowling thought it probable that bolts and nuts had initially been used to attach the seat to the base of the stool which collapsed under the plaintiff, although some seats were attached by screws. Whether the mechanical fasteners of the offending seat consisted of screws or bolts and nuts is probably of little moment. For it is apparent that all three fasteners must have become detached from the mounting plates by the time that the accident occurred. This is confirmed by a photograph taken shortly afterwards. Further confirmation is provided by Mr Cowling's opinion that, so long as at least one nut or screw remained in place, the seat could not become completely detached from the mounting plate, as happened in this case. 17 Mr Cowling observed a number of other seats in which at least one of the mechanical attachments was either loose or missing. One seat had only one screw remaining. Another had two bolts and nuts, but one of the nuts was very loose. In the case of yet another, there was impact damage to the cement seat which was similar to damage found on the seat which had collapsed under the plaintiff, indicating the probability that this other seat had collapsed in a similar manner. 18 In addition to mechanical fastening, Mr Cowling found that adhesives consisting either of Liquid Nails or Epoxy had been used to secure the seats to the mounting plates. Mr Cowling noted that these adhesives represented a useful adjunct to the bolts or screws. However the mechanical fasteners remained the principal means of attachment. In Mr Cowling's view, it would be highly imprudent to rely solely on the use of an adhesive without mechanical fasteners. 19 Mr Cowling noted that, this being an outdoor area which was open to the public, the possibility of someone deliberately loosening the nuts could not be excluded. He considered that it would have been a "simply and prudent procedure" for the undersides of the stools to be regularly checked in order to ensure that the nuts or screws were in place. The condition of some of the seats which he observed indicated that no regular inspections could have been taking place at that time. Mr Cowling was sufficiently concerned about the safety issues involved to bring the matter to the attention of a senior manager of the first defendant. 20 I should interpolate here that Mr Cowling's inspection took place some nine months after the accident. If, notwithstanding the commencement of these proceedings in the meantime, no regular inspections were taking place at that time, it can readily be inferred that they were not taking place in August 2008, when the accident occurred. 21 The Defence filed on behalf of the defendants raises a defence under s5G of the Civil Liability Act 2002, namely that the risk was an "obvious risk" as contemplated by s5F of the Act. A defence of contributory negligence was also raised, claiming that the plaintiff failed to sit down with care and failed to keep a proper lookout. 22 Neither of these defences was relied upon by Mr Kelly in his submissions before me. Rather, he sought to urge that the plaintiff had not established a breach of duty on the part of the defendant. This was, in my view, an appropriate course for him to adopt. The risk of the chair collapsing was, on the evidence, anything but an obvious one. As to the claim of contributory negligence, there is nothing to suggest that the plaintiff did anything other than try to sit down in a normal manner. The stool was, after all, there for the purpose of providing seating for the first defendant's patrons. They were entitled to assume that the seats were suitable for that purpose. 23 I turn now to the primary issue raised under this head, namely whether it is likely that the plaintiff will establish a breach of relevant duty on the part of the defendant. A number of authorities were referred to in this regard. I do not propose to go through them here. Many of them turn upon their own particular facts. The relevant law is encapsulated, in my view, in the following passage from Drotem Pty Ltd v Manning [2000] NSWCA 320 in which Powell JA (with whom Beazley and Stein JJA agreed) said as follows:- "I accept that it is no longer relevant to approach the standard of care of an occupier of premises by reference to the purpose for which persons enter onto those premises. However it will be seen from this reference to Johnson v Johnson that the courts have adopted differential approaches to the standard of care due to an entrant according to the use made of the premises. The cases cited indicate the difference in the standard applied to premises used for residential purposes and those to which members of the public generally are invited, namely retail, commercial, hospital or recreational premises. In retail or commercial premises, as stated by President Kirby in Johnson ; there is an obligation to pay attention to accident prevention. In supermarket cases there is a positive obligation to put in place a system of regular monitoring and inspection of the condition of premises. These authorities lead me to conclude that in a situation such as that currently before me the standard of care requires more than a reaction when danger is made known, particularly so when the danger is the result of wear and tear from general public use over a period of approximately twenty years. There is no evidence that the defendant in this case conducted any regular inspection of the premises in the nature of a safety audit. In my view the law imposes on occupiers of retail and commercial premises to which members of the public are invited an obligation of regular inspection to ensure that they are maintained in a condition which is safe for general public use. More so in this case where there is a greater preponderance of persons attending for the purpose of seeking medical attention." (emphasis added) 24 Had there been a regular inspection of the seats in this public eating area, it is highly unlikely that the plaintiff would have had his accident. On the evidence presented before me, it is a very strong case on liability. Within the terms of s82(3)(c), I am comfortably satisfied that, if these proceedings go to trial, the plaintiff will obtain judgment against the first defendant. 25 I turn now to the second matter to be established, namely that the plaintiff would recover "substantial damages" against the first defendant.

Likelihood of plaintiff recovering "substantial damages" 26 A preliminary question arises as to what constitutes "substantial damages" under s82(3)(c). There appears to be no judicial interpretation of this phrase. As Mr Anderson, for the plaintiff, points out, it could be interpreted to mean either:- (i) damages which are not merely nominal, or alternatively (ii) damages in a large (although unspecified) sum.

He submitted that I should find that, in the context of the section, the word "substantial" was intended to mean "more than nominal." 27 I propose to defer further discussion of this issue until I have dealt with the evidence relating the plaintiff's claim for damages. If his claim is such that he is likely to receive a large award of damages in any event, then this issue will become an academic one. 28 The collapse of the seat caused the plaintiff to fall backwards onto his coccyx. He suffered immediate pain and was taken by ambulance to Liverpool hospital. There he was able to move all limbs spontaneously, although he complained of partial aesthesia in the mid left thigh. An x-ray of his spine detected no fractures. He was provided with analgesics and discharged from hospital. 29 The plaintiff's case is that, as a result of the disabilities caused by this accident, he has been unable to return to his pre-injury employment as a plumber's labourer. He was 49 at the time of the accident, having been born on 5 February 1959. He had previously been earning an average of approximately $1000 per week. His disabilities are said to be continuing. If anything, he says, his symptoms are getting worse. Accordingly, he is claiming a significant amount by way of economic loss. Indeed, if this aspect of his claim were successful in its entirely, it would, on its own, almost certainly constitute "substantial damages". However, there are some complications in the plaintiff's claim, as I shall describe shortly. 30 One of the plaintiff's significant ongoing complaints relates to his right shoulder. He told his general practitioner, Dr Bangash, that he injured his right chest and shoulder in the fall. His chest injury resolved, but his right shoulder remains, it seems, a source of considerable pain and incapacity. One of the issues raised at the hearing arose from the report of Dr Greggory Burrow, dated 4 February 2009, in which he referred to the plaintiff having had a "significant bash to the left shoulder" and having "slightly swollen and slightly darker discolouration of the left arm." Mr Kelly for the defendant submitted that this illustrated the inconsistency of the plaintiff's complaints. However all other reports refer to the plaintiff's difficulties with his right shoulder. In the result, I can only conclude that Dr Burrow was mistaken when he referred to problems with the plaintiff's left shoulder. This is supported by the finding of Dr Darveniza, who noted in his report dated 27 October 2008 that "the right arm… was swollen and somewhat dusky and cyanotic." It should also be noted that Dr Bangash found that the plaintiff had tendonitis in his right shoulder, which he considered had been caused by the fall from the stool. 31 I therefore propose to attach no significance to Dr Burrow's findings relating to the plaintiff's "left" arm and shoulder. 32 The principal difficulty with the plaintiff's claim, which for obvious reasons was not fully ventilated before me, arises from the almost global nature and extent of his claimed disabilities, with the consequent suspicion that at least some of his claims might be exaggerated. Dr Millons, who saw him on behalf of the defendant in November 2008, referred to the plaintiff's complaints of global reduction in power and sensation through the right arm and the left leg. His conclusion was as follows:- "While clearly there is an element of exaggeration about his presentation, I think one would have to accept that he does have some basis for his complaints of ongoing symptoms." Dr Millons considered that, at that time the plaintiff was unfit for work in any capacity. He described his prognosis as "somewhat guarded". 33 An Occupational therapist who assessed the plaintiff in his home on behalf of the defendant noted a number of discrepancies between his claimed incapacities and his actual performance. 34 I must accept that there is a degree of exaggeration in the plaintiff's presentation. However, two things remain unclear: first, the degree of exaggeration, and secondly, its cause. The plaintiff has presented as significantly depressed since the accident. It is likely that at least part of his exaggerated presentation is a product of his depression, which itself is likely to have been caused by the accident. However, no psychiatric or psychological material was produced before me, and I am therefore not in a position to make any informed finding on this matter. 35 It goes without saying that, insofar as there are gaps in the evidence which preclude me from making a finding on any particular matter, I cannot be "comfortably satisfied" of that matter. However, given that the plaintiff's anxiety and depression commenced immediately after the accident, I must assume that there is some causal link between them. 36 I should also say here that the Plaintiff had serious pre-existing degenerative changes in the cervical, thoracic and lumbar regions of his back. Indeed some years before the accident, probably about 15 years before, he suffered serious lower back pain which lasted for about 7 years, during which he could not work at all. However, he then made a complete recovery, and had returned to full duties many years before the subject accident. 37 On the basis of the whole of the evidence, I make the following findings. As a result of this accident, the plaintiff suffered spinal injuries as well as an injury in his right shoulder. These injuries exacerbated pre-existing degenerative changes in his back. They have resulted in continuing and ongoing pain and disabilities, which have precluded him from returning to any form of employment for which he is qualified. There is a degree of exaggeration in his presentation, but I accept that this is at least partially caused by emotional or functional factors which themselves were products of the accident. It is very unlikely that he will be able to return to work for at least two years after the accident, and perhaps for much longer. I am comfortably satisfied that his inability to work for those first two years is attributable, directly or indirectly, to injuries sustained in the accident.

38 Given that the plaintiff's pre-injury earnings were in the order of $50,000 a year, I am comfortably satisfied that the plaintiff will recover damages from the first defendant in an amount of at least $100,000, and very possibly in a much larger figure. 39 The question which remains is whether an award of $100,000 constitutes "substantial damages" under s82(3)(c). 40 I think it inappropriate to try to ascribe any universal or definitive meaning to the phrase "judgment for substantial damages" as it appears in s82(3). The answer might well depend on the circumstances of each case. In particular, it might depend upon the nature and identity of the parties, the amount sought in the proceedings, and, to a lesser extent, the reason why the plaintiff is seeking an interim payment under the section. 41 This in turn gives rise to a question as to the purpose of s82. There is compelling authority to the effect that evidence of the plaintiff's need is not a pre-condition to the exercise of the discretion to order an interim payment: Schott Kem Limited v Bentley [1991] 1QB 61. Nevertheless, given that the Court has a discretion whether to make an order under s82, evidence of a plaintiff's need will always be a relevant matter.

42 In the present case, the plaintiff's affidavit provides compelling evidence of financial need, albeit not involving large amounts of money. The plaintiff has separated from his previous partner, apparently because of his depression and anxiety arising from the accident. He is paying $120 per week to live in a caravan at his brother-in-law's home. His car finance payments, which are in arrears, are $384 per month. He has obtained a compassionate advance from the National Bank in the sum of $2,000. His medical expenses, at the time of swearing his affidavit, amounted to approximately $4,300. An analysis of these figures shows that, while the plaintiff has compelling need for financial assistance, a relatively modest sum would suffice to meet his needs. In the particular circumstances of this case, therefore, an award of $100,000 would rightly be considered to be an award of "substantial damages". 43 I therefore propose to order the first defendant to make an interim payment under s82. As to the amount of such payment, I am well aware that, notwithstanding my views as to the strength of the plaintiff's case on liability, there is always a possibility that he will not succeed in this action. Given the state of his finances, the defendant would be hard pushed to obtain a repayment from him of any interim award made under s82. 44 Balancing all these considerations, I propose to order that the first defendant pay the plaintiff an interim award of $35,000. On any view of the matter, this amount does not exceed a "reasonable proportion" of the damages that are likely to be recovered by the plaintiff. (See s82(5)). 45 As to the costs of the application, no submissions were made by either Counsel. The appropriate order, in my view, is that costs be costs in the cause.

I order that the first defendant pay to the plaintiff $35,000 within one month of today, being part of the damages sought to be recovered by the plaintiff in these proceedings.

I order that the costs of the application be costs in the cause.

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.

CITATION : MATOUK v HUNGRY JACKS [2009] NSWSC 1176

CASES CITED : Drotem Pty Ltd v Manning [2000] NSWCA 320 Schott Kem Limited v Bentley [1991] 1QB 61

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