Prasad v Woolworths Limited

D. NEGLIGENCE

1. Woolworths conceded that the risk of harm from a person slipping on the floor was foreseeable and not insignificant under ss 5B(1)(a) and 5B(1)(b) of the Civil Liability Act 2002 ("CLA"). Woolworths submitted that the "clean as you go" policy was a reasonable one having regard to the considerations listed in s 5B(2) of the CLA. Woolworths also referred to ss 5C and 5D of the CLA but expressly made no submission in relation to contributory negligence, and made no submissions as to liability other than to submit, without any reasoning, that Strong v Woolworths Limited (2012) 246 CLR 152; [2012] HCA 5, "is distinguishable, and the principle of probabilistic reasoning has no application to the facts in this case".
2. In those circumstances, I am left to infer the likely period of time the slippery substance lay on the floor. The "clean as you go" system, if followed, might have meant that employees regularly identified hazards. Or they might not. There was no evidence that hazards were regularly identified.
3. With no scheduled cleaning, the spilled detergent, all other things being equal (including that there was no evidence about the busiest times of the day), might be more likely to have been spilt on the floor in the five hours before noon than the four and a half hours thereafter until 4.30pm when Ms Prasad fell. This likelihood is more readily inferred when there is no evidence from any employee from the store as to walking down the aisle or any aisle, or whether any hazards were identified on the day or any day under the "clean as you go" approach. The "clean as you go" approach did not involve any obligation to look for hazards, only to act when they were observed.
4. I do not regard this system as a reasonable one in the absence of some evidence of its effectiveness. It likely would leave spilt substances to be cleaned only when someone noticed them. Without anyone deliberately looking for such a substance, it might be expected that spilt clear substances might be noticed only when an employee or customer came into contact with the substance, as Ms Prasad did, with the attendant risk of injury. Generally, customers might be expected to be looking at the goods and displays and the employees might be going about their duties stacking shelves and the like, so clear substances on the floor would not be readily noticeable.
5. In my view, a reasonable response to the risk of spillages is to have a system of inspections. Apart from the attention of customers and employees being directed to other matters, as I have mentioned, the acknowledgment that "[p]eople drop things and don't tell you" by the apparent supervisor, Simone, emphasises the need for inspections to identify hazards.
6. The factors referred to in Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241 - whether it involved private or public premises, the number of people using the premises, the frequency of spillage (in this case, implied by the words of Simone), the very limited extent of any cleaning system during trading hours, the significant danger of a hidden slippery area, the limited area inside a supermarket to be checked, the importance to the community of accident prevention, and the absence of any explanation by the occupier - all tend to support an inference of negligence in this case.
7. Further, Brady indicates that the absence of any evidence of precautions taken to protect against the danger leads to the inference that Woolworths ought to have known and failed to take reasonable care to prevent the injury. Decisions such as Strong at [38], Franklins Limited v Brown [2000] NSWCA 177 at [9] and [10], and Irena Alat v Franklins Pty Ltd [2012] NSWDC 104 at [52] all support the need for regular, positive inspections rather than the "clean as you go" procedure adopted here.
8. Accordingly, I find that Woolworths breached its duty and is liable for damages to Ms Prasad resulting from her fall.

E. NON-ECONOMIC LOSS

1. Ms Prasad was 60 years old at the date of the fall. For the past few years since the fall, she has had regular physiotherapy, hydrotherapy, psychological counselling, radiological examinations and scans, a steroid injection, regular pain medications, some antidepressant medication and has seen medical specialists including neurosurgeons and orthopaedic surgeons.
2. The pain Ms Prasad feels makes her more upset. She is no longer as active as she was formerly, no longer gardening or playing badminton. The medical evidence indicates that Ms Prasad had some degenerative spinal issues prior to the accident but evidence that these issues created painful symptoms is thin. Her medical records show two complaints of back pain to her doctor, once in 2007 and another in 2008. Mr Kumar gave evidence that his wife would sometimes mention a sore back after gardening but that a complaint of pain did not persist more than a day or so.
3. There is some conflict in the medical evidence as to whether the injury Ms Prasad sustained was purely a soft tissue injury or that it contributed to her degenerative pathology. The weight of evidence seems to favour the latter. Dr Roger Pillemer, Woolworths' orthopaedic expert, attributed Ms Prasad's ongoing symptoms to the fall and suggested that she consider possible spinal surgery. He attributed no component of her impairment to her pre-existing condition.
4. Woolworths referred, in submissions, to Dr Noel Dan, who diagnosed a musculoligamentous soft tissue injury. Woolworths also referred to Dr G David Chapman, but Dr Chapman thought it "likely that the fall contributed to the intervertebral disc bulging at L4/5 and at L5/S1 increasing the risk of radiculopathy." His opinion that "[t]he majority of that degenerative pathology was clearly pre-existent" acknowledges or indicates some contribution of the fall to that pathology, as does his opinion that "the subject fall could have caused further narrowing" of the bilateral exit canal. I accept on the balance of probabilities that the fall contributed to the disc bulging as Dr Chapman indicated.
5. Ms Prasad has also had psychological problems. Dr Patricia Jungfer, psychiatrist, determined that: "Ms Prasad's psychological difficulties have arisen as a consequence of the chronic and disabling pain" and diagnosed an adjustment disorder with depressed and anxious mood. A similar diagnosis was given by Dr Doron Samuel, a psychiatrist retained by Woolworths. I take into account that Ms Prasad did on occasions prior to the fall complain of stress and anxiety to her general practitioner although she did not then take any antidepressant medication.
6. In these circumstances, Ms Prasad submits that her pain and suffering is 35% of a most extreme case. Woolworths submits that a more appropriate percentage is 25% based on her age, now 64, her pre-injury medical history, her pre-existing degenerative change and the absence of a frank orthopaedic injury. The last point I do not accept for the reasons given. And, in my view, her pre-injury medical history and a largely asymptomatic pre-existing degenerative change has limited impact on her non-economic loss. But her age must be taken into account.
7. In my opinion, Ms Prasad is entitled to non-economic loss damages calculated at 32% of a most extreme case, being $181,500.

F. LOST EARNING CAPACITY

1. Woolworths accepts that Ms Prasad is not fit for any employment due to her back problems, a matter confirmed by Dr Pillemer, Woolworths' orthopaedic expert. Dr Jungfer, Ms Prasad's expert psychiatrist, concluded that: "Mrs Prasad's psychiatric symptoms would not be an impediment with regards to paid employment."
2. Ms Prasad's work history is limited. She conducted a clothing business in Fiji from 1982 to 1993 and from 2000 to 2004. Both times the business ended because of a political coup in that country. There was no written or oral evidence of the turnover or profitability of the business or the income Ms Prasad received from it.
3. In the periods 1993 to 2000 and 2006 to 2008, Ms Prasad's only employment was "cash jobs". In 2008 she was cleaning other people's homes "one hour per week". There is no evidence of any employment from 2008, although in 2011 she travelled to Fiji to visit her mother and took the opportunity to look at the "state of the country" as she had plans to restart her clothing business. She attended a meeting in 2011 (apparently in the Sydney region) with her husband to obtain some assurances, apparently about the political situation in Fiji. Where that meeting occurred, with whom, and whether any assurances were obtained was not the subject of evidence but Ms Prasad did in 2011 and thereafter buy some Indian clothes from a retail shop in Australia that, she said, she proposed to sell in Fiji. Nothing further appears to have happened in respect of this business prior to her fall at Woolworths or since.
4. As Ms Prasad had on two previous occasions returned to live in Fiji and conduct a clothing business, I accept that there was some prospect that she might do so again. However, some matters seem to decrease this likelihood: her parents who lived in Fiji and were alive for the duration of the previous businesses there have since passed away; her three daughters and grandchild as well as her husband, Mr Kumar, live in Australia; and her husband has enjoyed secure employment with one employer for many years as a cabinetmaker and receives an apparently comfortable income.
5. Whether Ms Prasad intended to come and go to Fiji to conduct her business or alternatively, to leave all her family for an extended period, was not the subject of evidence. Neither was it explained why she did not commence this business in 2011 or 2012 or before her fall in 2013. There was no evidence that the commencement of the business was any closer (for example, by evidence of travel plans) in 2013 before the fall, than it was in 2011. With the passing of time, I would infer that it would become less likely, especially as the clothing goods aged and Ms Prasad's age moved further into her 60s.
6. An even greater hurdle Ms Prasad faces is the absence of evidence of the profitability of her past or proposed business. Nor was there evidence of how Ms Prasad could successfully buy retail stock in Australia and sell it profitably in Fiji, notwithstanding the transport costs and perhaps taxes and other imposts. It may be possible, but without evidence an inference of profitability is not an obvious one to draw. Her evidence that she "had to close [her] very successful business" in 2006 is insufficient to provide a foundation for a substantial award of damages for lost earning capacity.
7. In my view, the prospects of Ms Prasad recommencing her business in Fiji were small, and the likely income from the business, in the absence of any relevant evidence, cannot be inferred to be significant. Her inability to work now has prevented her doing local cash jobs, but they were only an hour a week before 2008 and nothing since. Any business in Fiji would apparently preclude even those meagre earnings. No tax returns were produced, although the extremely modest income from cleaning might explain the absence of returns.
8. In my view, given that Ms Prasad has almost reached 65 years of age, I am disposed to award only $5,000 as a buffer in respect of lost earning capacity.

G. DOMESTIC CARE

1. Ms Prasad and Mr Kumar gave evidence about how she did all or almost all of the domestic tasks, inside and outside the home, before the fall, and now Mr Kumar largely does them.
2. Those tasks include housework, cooking, dishwashing, laundry, gardening, shopping, vacuuming, mopping, driving, changing bed linen, cleaning bathrooms, walking the dog and washing the car. Mr Kumar is about four years younger than Ms Prasad but it appears Ms Prasad formerly mowed the lawns, washed the car, walked the dog and did most of the gardening as well as all the internal chores.
3. Since the fall, Ms Prasad cooks light meals including "making fried rice, doing salads…frying eggs," does light washing and dusting but Mr Kumar does more of these tasks now. Mr Kumar also does some of the dishwashing and all of the gardening, the vacuuming, the mopping, the sweeping, the driving, changing the bed linen, walking the dog and washing the car. Before the accident, the weekly shopping was done by Mr Kumar and Ms Prasad together on a Friday afternoon as occurred on the day of the fall, but since the fall Mr Kumar does the shopping alone.
4. Carolyn Grinter, an occupational therapist, was retained by Ms Prasad to assess her need for domestic assistance. She visited Ms Prasad in her home in May 2015 and concluded: "Mrs Prasad has required domestic assistance since her accident in February 2013. She has required assistance with cleaning, changing the bed linen, laundry, shopping, mowing the lawn, maintaining the garden and washing and cleaning the car. Mrs Prasad's husband and daughters have provided this assistance. Ms Prasad has received - 3.5 hours a week of cleaning and changing the bed linen… - 1 hour a week of laundry… - 1 hour a week of shopping… - 45 minutes a week of garden maintenance… - 15 minutes a week of car washing and cleaning..."
5. No contrary report was tendered by Woolworths and Ms Grinter's report was largely accepted. Some medical reports indicated lesser hours. On the other hand, a summation of the hours indicated in evidence by Mr Kumar and Ms Prasad might suggest more. I prefer Ms Grinter's opinion generally since she is an independent witness and has visited Ms Prasad's house. Ms Grinter calculates six and a half hours of domestic assistance. She notes, in her report, that in times past when Ms Prasad was in Fiji, Mr Kumar would do the outdoor activities. She also noted that the car washing and cleaning prior to the accident was done together by Ms Prasad and Mr Kumar.
6. I accept the reasonableness of Ms Grinter's calculations and her conclusions in respect of house cleaning, changing bed linen, doing laundry and garden maintenance.
7. In respect of shopping and car washing and cleaning, I take into account that these were tasks formerly undertaken (at least some of the time) by both Ms Prasad and Mr Kumar together and also that Ms Prasad no longer drives the family car whereas Mr Kumar drives to work presumably on the six days a week that he works.
8. No claim is made for Ms Prasad's inability to provide domestic assistance for others. The circumstance that some domestic chores might incidentally benefit others beside the plaintiff does not preclude their recovery. However, I am inclined to reduce the hours allowed because Mr Kumar provides similar care in respect of cleaning the car and the shopping that he did prior to Ms Prasad's fall, save that Mr Kumar now does these tasks alone and that the car is now largely, thought not exclusively, for his use.
9. Ms Prasad claims seven hours of commercial care ongoing for the rest of her life. Leaving aside the appropriate period, commercial care is only recoverable if I find it is likely to be utilised. In the past, Ms Prasad and Mr Kumar have not retained anyone to perform paid domestic tasks. There is evidence that Mr Kumar has foregone overtime in order to assist Ms Prasad with the domestic chores, a matter which indicates that even if there is some economic benefit in retaining outside help - the benefit of Mr Kumar being able to work longer hours at overtime rates - Ms Prasad and Mr Kumar have chosen not to do so.
10. There is no evidence that Mr Kumar will cease to provide the assistance he has provided in the past, even if he would like to do more overtime. He is younger than Ms Prasad and his apparent health does not indicate that his gratuitous domestic assistance will cease. There is also the prospect that he may provide a greater level of assistance in the future when he retires or reduces his work commitments as he ages, because his fulltime work for six days was suggested to be the reason for his limited assistance at home prior to the fall.
11. There is no evidence to explain why paid commercial care was not utilised in the past, or why it will be utilised in the future. It was not suggested that financial resources precluded it.
12. In my view, for their own personal reasons, Mr Kumar and Ms Prasad prefer not to retain outside help but to keep the performance of domestic tasks "in-house", perhaps with some assistance from a daughter who lives locally.
13. If commercial care is unlikely, the amount of hours of care required each week becomes particularly important. The CLA imposes a threshold amount of six hours of unpaid domestic assistance for a minimum of six months before any damages for gratuitous domestic care can be awarded.
14. In this case, the amount of care required is very close to the threshold. Predicting these amounts for the future is not exact, nor is there any real certainty about whether, in the past since Ms Prasad's fall, six hours of domestic care was always needed and provided. Doing my best to assess these uncertainties on the balance of probabilities, I find it likely that six hours of domestic care would be required for a period of about five years, including the past, but not otherwise. Ms Prasad claimed an amount of $40,000 for past domestic care for four years and I award a sum of $50,000 for past and future care.

H. FUTURE MEDICAL EXPENSES

1. Woolworths accepts ongoing expenses for future medication at $15 a week and a general practitioner visit costing $70 a quarter, with both amounts discounted by 25% for contingencies. Woolworths' submissions also indicate an acceptance of the need for the pain management course. Given the regular medical practitioner consultations that Ms Prasad adopted prior to the fall, the significant discount for contingencies is appropriate.
2. I also accept that the ongoing psychological consultations have not been shown to be especially beneficial. Ms Prasad's own psychiatrist, Dr Jungfer, indicated that a more goal-based approach to counselling should be adopted. Whilst Dr Jungfer recommended the pain management course, she did not otherwise recommend separate psychiatric services.
3. As to physiotherapy, Ms Prasad's evidence indicated some limited benefit for a relatively short period after the treatment. I would allow a further $5,000 in respect of necessary future physiotherapy.
4. I propose to allow $2,000 for the possibility of some future psychological counselling and also to allow the full amount of $10,000 for the pain management program, some $3,000 more than the figure adopted by Woolworths.
5. I would also allow another $5,000 against the limited possibility that neurosurgical consultations and spinal injury surgery might one day be advised and adopted. That surgery is not currently recommended and in any event, Ms Prasad is not currently in favour of such an operation but should that recommendation be made, there is a real likelihood that it will change her view and that she might defer to a doctor's opinion.
6. Accordingly, the future out-of-pocket expenses comprise $21,500 allowed by Woolworths, together with an additional $3,000 for the full cost of the pain management course, $5,000 for physiotherapy, $2,000 for psychological counselling, and $5,000 as a buffer against possible neurological consultations and surgery, a total of $36,500.

I. CONCLUSION

1. Accordingly, damages comprise: Head of damage ($) Non-economic loss 181,500 Past and future loss to earning capacity 5,000 Past and future care 50,000 Future medical expenses 36,500 Past out-of-pockets (agreed) 20,000 Total 293,000

J. ORDERS

1. The orders of the Court are: 1. Judgment for the plaintiff in the sum of $293,000. 2. Defendant to pay the plaintiff's costs.

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