Gordana Raketic was injured on 10 March 2016 when she slipped on a wet floor in the IGA supermarket at Heathcote owned by the defendant company. She sues for personal injury damages.
[2]
Issues
The defendant admits a breach of duty of care and admits that its breach caused Ms Raketic to fall.
The only issues remaining are whether Ms Raketic was contributorily negligent, and the quantum of her damages.
[3]
Contributory negligence
The defence of contributory negligence is governed by s 5R of the Civil Liability Act 2002 ("CLA"). In part it provides:
"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."
Accordingly, s 5B of the CLA applies if Ms Raketic ought to have known the floor was wet, the risk of falling is foreseeable, not insignificant, and a reasonable person would have taken added care.
The defendant submits that it placed warning signs near where the water on the floor was located, and that Ms Raketic failed to take proper care and keep a proper lookout when she failed to view either of the signs.
The existence of any warning sign in place was disputed. Ms Raketic testified that she did not see any sign before she fell, that she looked around after she fell and saw no signs. She said no one mentioned warning signs in the aftermath of the fall.
Alex Ling Ye, the owner of the defendant, observed two signs in place when he was called to the location of the fall shortly after the accident whilst Ms Raketic was still present. Mr Ling Ye said that the water had come from a leak in the freezer and that the leak was of several days' duration. A towel had been placed to absorb the water at the front of the freezer but had proved ineffective prior to the fall. There was no evidence that the signs were in place prior to the fall, although Ms Raketic gave no evidence of noticing signs being installed after her fall. That may be because other things had by then consumed her attention.
At the time of the fall, a duty manager named Zac was nearby. He had a mop and bucket and may have had signs. Mr Ling Ye gave evidence that the defendant's practice was to install the warning signs prior to any mopping, but there was no evidence that Zac had commenced to mop the water at the time of the fall. Zac was not called to give evidence and no explanation was given for the failure to call him.
Further, a video of the incident existed but was not preserved by the defendant beyond two weeks. Mr Ling Ye said that the video would only be kept longer than two weeks if the customer returned to the store within that period complaining of a serious injury.
A Jones v Dunkel inference may be available that evidence from Zac would not have assisted the defendant. A similar inference may be available in respect of the less than wholly satisfactory explanation by the defendant for the absence of the CCTV video footage which Mr Ling Ye conceded had recorded the fall. I am prepared to draw at least the first inference.
Further, the absence of evidence makes it easier to accept the evidence of Ms Raketic on this matter. Ms Raketic's evidence was sometimes longwinded. She did not always direct her mind to the question asked. I attribute this to her unfamiliarity with the court setting and not to any desire to mislead. It was not suggested that her evidence about the event was untruthful, and I accept her evidence was honestly given. She made concessions about the impact of her shock at the time of the fall and that what she noticed before the fall was limited. I am persuaded that her evidence was generally reliable.
For all of these reasons, I accept the direct evidence of Ms Raketic as to the absence of warning signs. I conclude on the balance of probabilities that there were no warning signs in place at the time of the fall.
Without the warning signs, there is no basis for a finding of contributory negligence. There is no evidence that the water on the floor was noticeable, and the circumstances that Ms Raketic saw a man (but not a mop and bucket) before her fall does not indicate that she ought to have discerned the presence of water on the floor or any other particular danger.
The water was located in fairly close proximity to the corner of the aisle from which Ms Raketic had entered the aisle. It would be expected that the supermarket was arranged so as to attract the eye to the products on the shelves rather than to the floor, and I do not regard that Ms Raketic's duty for her own personal safety extended to carefully observing the floor as she turned down the supermarket aisle. Nor, because of the lack of evidence, am I persuaded that if she did, she would on the balance of probabilities have noticed the water, the observation that would give rise to the foreseeable not insignificant risk.
For these reasons, I find that contributory negligence is not established on the balance of probabilities.
The evidence of Mr Ling Ye as to the location of the warning signs in the centre of the aisle would not have prevented someone walking through the wet area and would have tended to direct customer traffic to the side of the aisle, where Ms Raketic fell. As mentioned, there was no evidence that the wetness of the floor was readily visible, even if a person was looking for that hazard. But the signs were yellow, noticeable, and readily recognised as indicating a possible slip hazard. They were marked, "WET FLOOR". A person displaying the slightest level of attention might be expected to notice them in the middle of the aisle if they were there. I accept that the reasonable precaution on viewing the signs would be to proceed more carefully. As there was no evidence that the water hazard was visible even with care, it is unclear whether the warning signs would have prevented the accident or otherwise been causally significant. It may be that I could infer, even in the context of a lack of evidence about the water, that proceeding more carefully would make a fall unlikely. But in view of my other findings, this matter does not need to be determined.
The claim for contributory negligence is rejected. If it were otherwise I would need to apportion the damages on the basis of the respective parties' responsibility for the damage under the provisions of the Law Reform (Miscellaneous Provisions) Act 1965. The defendant admitted serious negligence in allowing the water to leak from a defective freezer for several days, which ultimately extended across the aisle. No employee was directed to put warning signs or to regularly mop the floor. The only step taken by the defendant, albeit ineffective, was to place a towel under the freezer some days earlier. In these circumstances, the duration and gravity of the negligence of the defendant and its evident causal potency indicates that even if contributory negligence was found, it should not exceed 10%.
[4]
Damages
Ms Raketic lives with her young daughter and her older young adult son. Together they enjoyed bushwalking and bike riding. She was a keen gardener and her home is on a large 1,000 square metre garden block. Ms Raketic led an active lifestyle before the fall, including, among other things, attending Pilates classes. Her injuries from the fall have caused her to curtail her physical activities, including her gardening, as these activities prompt pain and discomfort.
Each party tendered a medical report. Dr Assem is a rehabilitation specialist retained by Ms Raketic. Ms Raketic attended on him on 27 February 2017. Neither expert gave oral evidence. Dr Assem reported as follows:
"She sustained a direct injury to her left shoulder and has symptoms arising from the left upper trapezius where there was pain and some muscle guarding present. Although she did not report any neck pain or stiffness, her left shoulder symptoms appear to be predominantly arising from the cervical spine. She will therefore require radiological imaging of her cervical spine to accurately identify the nature of the underlying pathology and whether any further intervention is warranted.
She also sustained a soft tissue injury to her lower back causing intermittent mechanical low back pain with non-verifiable radicular symptoms in her left leg.
The soft tissue injury to her left hip has improved after an ultrasound guided cortisone injection to the left trochanteric bursa."
Dr Assem also reported that Ms Raketic, "will most likely continue to have ongoing intermittent symptoms that can be potentially aggravated if she is required to engage in any physically demanding activities ". He estimated that Ms Raketic would require two hours of domestic assistance per week for two years.
Professor Frederick Ehrilch, retained by the defendant, is an orthopaedics and rehabilitation specialist. He saw Ms Raketic on 21 July 2017. He reported that Ms Raketic, "sustained some strains and contusion in her fall" which "can be a source of ongoing discomfort but there is no reason to suppose that any permanent damage to any position was inflicted". The Professor reported that Ms Raketic complained of pain on the left side of her body, a loss of agility, and said that physical activities were now less comfortable. Professor Ehrilch accepted that the complaints of Ms Raketic were reasonably attributable to her fall.
The parties submitted that there was not a substantial difference between the reports. Dr Assem noted the likelihood of intermittent symptoms in certain circumstances, which are likely to persist, whereas Professor Ehrilch stated that, "no permanent damage of any portion was inflicted". But the Professor did report "incapacity" and "some discomfort on certain movements".
Ms Raketic gave evidence that the cortisone injection alleviated her symptoms in her hip and "made her feel better" and that she finds some benefit from fortnightly or monthly acupuncture and remedial massage. Consistent with the expert report she said she felt, "pain in left hip when [she] undertook activities" and sometimes her left side gave her pain and impacted on her comfort when sleeping. She says she tries to avoid prescription medication.
I find that Ms Raketic has suffered a soft tissue injury which has largely resolved, but which sometimes causes pain at night, or if she engages in more physically demanding activities, and as a result she has curtailed some of these activities.
[5]
Non-economic loss
Damages for non‑economic loss are not available unless the severity of the injury is at least 15% of a most serious case, [1] and damages are reduced unless the severity is equal to 33% of a most serious case. Both parties submit a lower level of severity, so it follows that the damages recoverable do not equate to the monetary value of the damages suffered.
The consequences of the fall, of which Ms Raketic complains, are principally felt when she engages in demanding activities, which tends to restrict what she does. The injuries are not productive of constant pain and discomfort, and they arise from a soft tissue injury which would not be expected to worsen over time. This indicates a lower level of percentage of a most extreme case than the 26% to 30% that was submitted by the plaintiff. Her own expert evidence that she does not require any domestic assistance from after February 2019 is to a similar effect. The consequences of the discomfort and pain have impacted significantly on her active lifestyle, a matter that would operate to increase the percentage above the 15% asserted by the defendant. I assess her non-economic loss at 20% of a most extreme case, which produces an amount for non‑economic loss after the required legal reduction of $21,500.
[6]
Past out-of-pocket expenses
The defendant accepted the amount of past out‑of‑pocket medical expenses of $1,393. An additional $340 for massage and acupuncture was not strongly resisted. I accept the additional amount was proved to be of some assistance to Ms Raketic in alleviating her pain resulting from the fall, and thus I allow the amount claimed for past out‑of‑pocket expenses of $1,733.
[7]
Future out-of-pocket expenses
The plaintiff sought a buffer of $10,000 to cover the cost of:
"radiological imaging, physiotherapy, therapeutic land and water based programs with supervision from an exercise physiologist, analgesic medication and consultations with a general practitioner". [2]
Any buffer should also include an amount for acupuncture and remedial massage.
The defendant submitted that an amount similar to the past out‑of‑pocket expenses could be allowed, perhaps $2,000, but disputed that an amount more than $5,000 could be awarded, bearing in mind the expenses incurred in the past and the evidence of the experts.
There was an absence of evidence detailing the cost of any particular expense. Dr Assem stated:
"She will require further radiological imaging of her cervical spine and left shoulder to accurately delineate the nature of the underlying pathology to determine whether intervention is warranted. If she continues to have chronic mechanical low back pain with non-verifiable radicular symptoms in the left leg, a progress CT scan or MRI scan of the lumbar spine will be reasonable.
Otherwise, she will need to continue with intermittent physiotherapy treatment during exacerbations and participate in a therapeutic land or water based program with intermittent supervision from an exercise physiologist aimed at improving her physical condition and functional capabilities so she can perform her usual daily activities and work as a childcare educator."
It seems that the scans described in this passage may have been part of expenses already incurred, although that was not clear. Thus, precisely what ongoing treatment after this trial was required, and what it would cost, was left in a somewhat unsatisfactory state. Apart from scans there would be some physiotherapy and other manipulative treatment such as acupuncture that could be justified.
I also accept that Ms Raketic is likely to have, notwithstanding her reluctance to use analgesics, a small occasional use of analgesics for pain and discomfort attributable to the fall. I propose to allow the amount of $4,000 for future medical and related expenses.
[8]
Domestic assistance
I mentioned earlier that Dr Assem reported a need for two hours of care per week for two years which would end at the end of February 2019. Professor Ehrilch did not report any need for care. I accept that Ms Raketic in the past did most of the work in the garden, but now her adult son, Hugo, has taken over this role. This largely comprises lawn mowing. He said this takes him two hours every two to three weeks. Hugo has also provided other domestic assistance, with vacuuming and hanging washed clothes on the line as examples.
Ms Raketic's particulars of domestic assistance do not claim that Hugo was doing the gardening or other chores on a commercial basis. She did not make a claim for past commercial care, but only for commercial care for the future.
Ms Raketic has not in the past engaged any commercial domestic assistance. No reason was given for this, or why this practice would change. I do not regard an affirmative to the question, "If you had the money, would you pay someone to do it?" without more, as sufficient to explain the absence of commercial domestic assistance being obtained in the past. In particular, there was no evidence that Ms Raketic was unable to pay for domestic assistance in the past. These matters suggest that past practice is an indication of likely future practice, especially in the immediate future. If commercial domestic care was unlikely to be retained in the future, no compensation award should allow for it. [3]
Ms Raketic's counsel submitted that Dr Assem's report should not limit the amount of necessary care required, either in terms of the hours per week or the duration of two years from the date of the report. The level of care of two hours per week is no less than the hours Ms Raketic herself indicated in evidence as what she needed or desired. I do not accept that the Court should ignore the plaintiff's expert's opinion that two hours' care per week was required only for two years. That period has not elapsed and there is no evidence to the contrary of it other than Professor Ehrilch, who concludes that no domestic assistance is required. Further, the report of Dr Assem is the foundation of the claim for domestic assistance.
Hugo Raketic gave evidence that he performed perhaps ten hours per week of domestic services, but he accepted this included an unspecified but significant amount of attending to his younger sister. A large part of his activities also included vacuuming the stairs and upstairs section of the house, which is the area of the house effectively used by him alone. In my view, Dr Assem's conclusion of two hours per week until 27 February 2019 should be accepted.
Past care on a gratuitous basis was claimed for eight hours per week. The evidence of Dr Assem and Ms Raketic, and even Hugo Raketic's evidence, properly understood, did not support this amount of care. It is a claim that is inconsistent with the claim for two hours a week for the future in respect of a condition said to be stable and not to have changed at any time prior to the trial. At least since Dr Assem's report about 15 months ago, there can be no basis to support a claim beyond two hours per week, and, in my view, the evidence does not allow me to be satisfied on the balance of probabilities of a different level of care even before the date of that report.
If I accept, as I do, that there is a proper basis for two hours of gratuitous domestic care required for Ms Raketic per week as a result of the fall, this amount of care does not allow the Court to make any award for these gratuitous care services, as it does not satisfy the six hours per week for six months threshold required under the legislation. Accordingly, there can be no reward for past domestic assistance.
There was some evidence that Ms Raketic paid Hugo cash, at least for some of the gardening services. Although the amounts paid and the regularity of the payments remained unclear, I think it is some evidence that Ms Raketic has been and would be willing to pay for domestic assistance, at least in respect of gardening work.
I propose to allow a further ten months - or 43 weeks - until the end of February 2019 in accordance with Dr Assem's report at two hours per week (that is, 86 hours in total) for future commercial domestic assistance. $45 per hour is the rate claimed by the plaintiff, and that rate was not disputed by the defendant. 86 hours at $45 an hour amounts to $3,870 for future domestic assistance, which I allow.
[9]
Economic loss
The claim for past and future economic loss was abandoned by the plaintiff at the commencement of the trial.
[10]
Conclusion
The plaintiff should be awarded the sum of $31,103 for damages comprising:
Head of damage Amount ($)
Non-economic loss at 20% 21,500
Past out-of-pocket expenses 1,733
Future out-of-pocket expenses 4,000
Future domestic assistance 3,870
Total 31,103
[11]
The parties have requested that I reserve the matter of costs.
[12]
Orders
Accordingly, the orders of the Court are:
1. Judgment for the plaintiff in the sum of $31,103.
2. Reserve costs to be argued on a date to be fixed.
[13]
Endnotes
See s 16 of the CLA.
Plaintiff's schedule of damages.
Smith v Alone [2017] NSWCA 287 at [72]-[74], Miller v Galderisi [2009] NSWCA 353 at [21], ECS Group (Australia) Pty Ltd v Hobby [2014] NSWCA 193.
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Decision last updated: 22 October 2018