Tormey v Coles Supermarket

District Court of NSW|2007-08-17

CITATION: Tormey v Coles Supermarket [2008] NSWDC 67

I find a verdict for the plaintiff for $298,224.58. I order that judgment be entered for the plaintiff in accordance with the verdict. Subject to submissions, I will order that the defendant pay the plaintiff's costs of the claim, including the costs of the plaintiff's Motion filed 2 August 2007. I stand over the hearing of the claim to 10.00am on 24 April 2008 for submissions as to costs. Addendum to orders made 14 April 2008 DECISION: 1. I vary the amount of the judgment by reducing the amount for Non Economic Loss from $101,660.00 to $101,500.00 thereby reducing the total of the verdict from $298,224.58 to $298,064.58. 2. I order that the defendant pay the plaintiff's costs of the claim, including the costs of the plaintiff's Notice of Motion filed 2 August 2007, on the ordinary basis. 3. I order that the exhibits remain with the Registrar pending the filing of a Notice of Appeal. 4. I order a stay of execution of my judgment for 3 months to 24 July 2008 and, if a Notice of Appeal is filed within that time, pending judgment of the Court of Appeal, or other order of the Court of Appeal, or other order of this Court, I grant liberty to either party to apply to this Court for a further order.

CATCHWORDS: TORT - occupier's liability - negligence - personal injury - customer in supermarket struck by a shopping trolley with which two other customers were skylarking - duty of care - breach - causation - damages

Smith v Leurs (1945) 70 CLR 256 CASES CITED: Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 Proprietors of Strata Plan 17226 v Drakulic (2002) 55 NSWLR 659 TAB Ltd & Anor v Atlis (2004)

PARTIES: Rebecca Tormey Coles Supermarket Pty Ltd

COUNSEL: M. Maxwell (Plaintiff) G. Parker (Defendant)

SOLICITORS: Adams & Co (Plaintiff) McCulloch & Buggy (Defendant)

The plaintiff was born in Ireland on 13 October 1971. Accordingly, she is aged 36 years 6 months.

She attended primary and secondary schools in Dublin, Ireland, between 1975 and 1985, completing the Irish equivalent of the New South Wales Year 10 School Certificate.

After leaving school, she commenced an apprenticeship in hairdressing, which she completed during 1989.

After completing her apprenticeship, she commenced employment as a hairdresser, which employment she followed in Ireland until about 1994.

She was employed as a waitress by Diamond of Sydney Pty Ltd (a company controlled by her former de-facto husband) from (at least) 1 July 2001 to 8 February 2003 (the date on which she was injured).

During February 2006 she and her de-facto husband separated.

During August 2006 she underwent an artificial insemination procedure.

On 24 April 2007 her second child, George, was born.

By Statement of Claim filed in the Court's registry on 15 December 2005 the plaintiff sued the defendant in negligence to recover damages as compensation for the injury that she had suffered on 8 February 2003 and for her disabilities consequential upon that injury.

The plaintiff relied upon the following acts or omissions as constituting negligence:

(a) Failing to ensure that patrons in the store were behaving in a manner which would not render harm or damage to other patrons.

(b) Failing to provide any security so as to avoid the risk of injury.

(d) Failing to eject patrons of the supermarket who were behaving in a disorderly manner. (e) Failing to warn the Plaintiff that she was in a position of peril in the circumstances.

(f) Failure to develop a system of procedures to deal with contingencies such as patrons behaving dangerously.

(g) Failure to provide training to management to cope with reasonably expected contingencies and have a strategy in place for emergency situations. (h) Failure to ensure that management responds in a timely manner to the event of emergency situations. (j) Failure to ensure that staff have been properly trained, skilled and equipped in the role of supervising an emergency. (k) Failure to provide adequate supervision to ensure perpetrators of horseplay were checked spoken to and prevented from engaging in dangerous activity.

(l) Failure to confront offenders at the store and informing that police were on their way.

By Notice of Grounds of Defence filed in the Court's registry on 22 June 2006 the defendant denied that it was negligent in the manner alleged by the plaintiff's Statement of Claim or in any manner and alleged, in any event, that the plaintiff's injury was caused by or contributed to by negligence on her part.

The defendant relied upon the following acts or omissions as constituting negligence: (a) The plaintiff failed to exercise any or any reasonable care for her own safety.

(b) Being aware of behaviour of the 2 men the Plaintiff failed to bring their behaviour to the attention of the servants or agents of the Defendant.

On 14 August 2007 the plaintiff's claim came on for hearing before me. Mr Maxwell, of counsel, appeared for the plaintiff and Mr Parker, of counsel, appeared for the defendant. Over three days, 14, 15 and 16 August 2007, I heard evidence from 9 witnesses (3 called by Mr Maxwell and 6 called by Mr Parker) and I received 33 exhibits (24 tendered by Mr Maxwell and 9 tendered by Mr Parker). On 16 August 2007 I conducted a view of the defendant's store in the presence of the plaintiff and her daughter, Mr Maxwell and his instructing solicitor, Mr Parker and his instructing solicitor, my associate and a court reporter. On 17 August 2007 I received written submissions from Mr Maxwell and Mr Parker and I heard their oral submissions, after which I reserved my judgment.

The witnesses, in the order in which they gave evidence, were:- (1) The plaintiff.

(2) Ms Melissa Alexandra Tormey, the plaintiff's daughter, who was in the plaintiff's company when she was injured.

(3) Mr Lloyd Williams, an employee of the defendant, who was engaged in his duties in the dairy section of the defendant's store at the time when the plaintiff was injured. (4) Ms Sharon Hinson-Simms, an employee of the defendant, who was engaged in her duties either as a cashier at a check-out counter or processing films in the photographic laboratory of the defendant's store at the time when the plaintiff was injured. (5) Ms Amy Han, an employee of the defendant, who commenced her duties as a cashier at a check-out counter of the defendant's store at 12.56 pm on 8 February 2003. (6) Ms Menelin Candava, an employee of the defendant, who was engaged in her duties as the service manager of the defendant's store at the time when the plaintiff was injured. (7) Ms Sasha Trpcevski, an employee of the defendant, who was the manager of the defendant's store at the time when the plaintiff was injured but who was not on duty at the store at that time. (8) Ms Teresita Wilson, an employee of the defendant, who was engaged in her duties as a cashier at a check-out counter of the defendant's store at the time when the plaintiff was injured. (9) Mr Michael Tsingolis, the plaintiff's former de-facto husband.

The plaintiff's exhibits are: A. Sketch plan of the internal layout of the defendant's store.

B. Six photographs showing sections of the defendant's store (taken on 16 August 2007). C. The defendant's wage records related to Ms Amy Han for the week from 3 February 2003 to 9 February 2003. D. The page headed "Unruly Behaviour and Undesirables" of the defendant's security manual. E. The plaintiff's income tax returns for the income years ended 30 June 2002, 2003, 2004, 2005 and 2006.

G. Report 20 October 2000 of Dr G. K. Chapman, radiologist, of an x-ray and a CT scan of the plaintiff's lumbar spine.

H. Report 27 March 2003 of Dr D. O'Driscoll, radiologist, of an x-ray of the plaintiff's lumbar spine.

J. Report 27 March 2003 of Dr S. Blome, radiologist, of an MRI scan of the plaintiff's lumbar spine.

K. Report 3 April 2003 of Dr B. Giuffre, radiologist, of an MRI scan of the plaintiff's thoraco-lumbar spine.

L. Discharge Summary 9 April 2003 issued by Royal North Shore Hospital.

M. Report 9 May 2003 of Dr L. Earl, general practitioner. N. Discharge Status Report 28 May 2003 issued by Royal Rehabilitation Centre.

O. Letter 6 June 2003 (O1) and reports: 16 June 2003 (O2), 18 June 2003 (O3), 15 July 2003 (O4), 30 December 2003 (O5), 2 January 2004 (O6), 7 January 2004 (O7), 12 February 2004 (O8) and 19 February 2004 (O9) of WIMS Injury Management Services. P. Reports 20 September 2003 (P1) and 23 February 2004 (P2) of Dr R. Griffiths, psychologist. Q. Reports 9 October 2003(Q1), 20 November 2003 (Q2), 11 April 2004 (Q3) and 23 June 2006 (Q4) of Dr T. Steel, neurosurgeon. R. Work Cover Certificate 10 February 2004 issued by Dr L. Earl. S. Rehabilitation reports 30 June 2004 (S1), 30 June 2004 (S2), 9 November 2004 (S3), 9 December 2004 (S4), 14 December 2004 (S5), 10 January 2005 (S6), 23 March 2005 (S7), undated (S8), undated (S9), undated (S10), 22 July 2005 (S11), undated (S12), 23 September 2005 (S13) and 25 October 2005 (S14) of Konekt Australia P/L. T. Report 18 November 2004 of Dr B. Doust, radiologist, of an MRI scan of the plaintiff's lumbar spine. U. Reports 24 November 2004 (U1), 24 November 2004 (U2), 24 November 2004 (U3) and 17 December 2004 (U4) of Dr P. Conrad, surgeon. V. Reports 15 December 2006 (V1), 16 July 2007 (V2) and 26 July 2007 (V3) of Dr R. Mellick, neurologist. W. Daily Living Reports 29 March 2007 (W1 and W2) of Ms D. Prattley, occupational therapist. X. Daily Living Report 30 April 2007 of Mr L. Stimpson, forensic accountant. Y. Report 24 July 2007 of Dr G. Barold, specialist in occupational medicine.

The defendant's exhibits are: 1. Memorandum 28 March 2003 of Mr S. Trpcevski. 2. Statement 28 October 2006 of Ms J. Vukovic. 3. Notes of an examination of the plaintiff on 10 February 2003 by Ms K. Johnson, chiropractor, at Gladesville Chiropractic Care Centre. 4. Workcover certificate 13 June 2003 issued by Dr L. Earl. 5. Employee's Compensation Claim form 21 July 2003 completed by the plaintiff and Mr Tsingolis. 6. Employer's Report of Injury Form 18 July 2003 completed by Mr Tsingolis. 7. Clinical notes of Dr. L. Earl related to consultations with the plaintiff between 8 December 2002 and 12 August 2003. 8. Subpoena issued 22 June 2006 by the defendant's solicitor to Diamond of Sydney Pty Ltd to produce documents. 9. Reports 18 July 2006 (9A), 3 July 2007 (9B) and 30 July 2007 (9C) of Dr J. O'Neill, neurologist.

The plaintiff enjoyed good general health, there being nothing untoward with her physical or mental health, before the incident of 8 February 2003. She had suffered a "twinge" in her back in October 2000 when lifting a mattress, for which she had consulted her general practitioner, Dr Earl, and, after treatment, she had recovered. An x-ray and a CT scan performed on 20 October 2000 confirmed the absence of any abnormality, other than a developmental anomaly of L5, in the lumbar spine (see exhibit G). I accept that she was pain-free in her back between about November 2000 and 8 February 2003.

The plaintiff and her daughter, Melissa, gave evidence about the incident in which the plaintiff was injured, and which gave rise to the plaintiff's claim against the defendant. Their evidence about the incident was consistent and neither was undermined during cross-examination. Their evidence about the fact of the incident was confirmed by the evidence of Ms Hinson-Simms. I accept their evidence about the incident.

I am satisfied that the incident happened in the following circumstances.

At sometime between 12 noon and 1.00 pm on 8 February 2003 the plaintiff and Melissa were left at the defendant's store by the plaintiff's (then) de-facto husband, Mr Tsingolis, as the plaintiff wished to purchase some items for use in her home and some other items for use in her husband's restaurant, in which she was employed on a part-time basis.

After having taken a trolley from a rack outside the store, the plaintiff, with Melissa, entered the store. On their entering into the store, they heard loud noises being made by some males within the store. Although they could hear the males, they could not see them, but they realised, from the noises, that two males were making the noises.

The plaintiff, with Melissa, went into one aisle to obtain an item and two men with a trolley came into view. One man was pushing the trolley at one end and the other man was pulling the trolley at its other end. The man pulling the trolley let go of it and the other man "rode" the trolley, bent over it, until its movement stopped. Then, the men with the trolley went out of sight and the plaintiff and Melissa continued from one aisle to the next aisle.

Notwithstanding that they and the trolley had gone out of sight, the two men continued to make loud noises within the store. There was not a time when they were in the store before the incident that the plaintiff and Melissa could not hear loud noises being made by the two men.

After they had been in the store for about 15 to 20 minutes, moving from aisle to aisle, selecting items for purchase and placing them in the trolley that they had taken into the store, the plaintiff and Melissa were in the aisle in which cleaning products were displayed for sale, as the plaintiff wishes to purchase a fabric softener. As she was squatting down to take the fabric softener that the she wanted to purchase off a shelf, the plaintiff was hit in her back by a trolley and knocked forward onto the ground. On her looking behind her, the plaintiff saw the two men, who she had seen earlier sky-larking with the trolley, and who had been making the loud noises within the store, walking away with the trolley. Melissa helped the plaintiff to her feet.

After getting to her feet, the plaintiff, with Melissa, went to the front counter to report the incident. At the front counter, she told 'an Asian' woman, who said she was the store's manager (this woman was Ms Candava), what had happened.

After telling Ms Candava what had happened to her, the plaintiff and Melissa went to a check-out counter. The cashier on the counter (this woman was Ms Hinson-Simms) asked the plaintiff whether she was 'all right' (as Ms Hinson-Simms noticed that she appeared 'off colour') and the plaintiff replied that 'someone hit me in the back with a trolley and I fell to my knees'. After paying for the items that she had purchased, the plaintiff, with Melissa, left the store.

When outside the store, the plaintiff telephoned her husband and, after 5 or 10 minutes, Mr Tsingolis arrived at the store. After the plaintiff had told him what had happened to her, Mr Tsingolis assisted the plaintiff, with her purchased items, to his car and then he went into the store, where he spoke to Ms Candava about what had happened to the plaintiff.

After he 'argued' with Ms Candava, Mr Tsingolis left the store, went to his car and drove the plaintiff and Melissa home.

The injury suffered by the plaintiff as a result of the incident

The plaintiff was squatting down, to take the fabric softener that she wanted to purchase off a shelf, when she was hit in her back by the trolley and knocked forward onto the ground. Not surprisingly, she experienced pain in her back.

The initial treatment that the plaintiff received for the injury that she had suffered

After arriving back at her home, the plaintiff telephoned her general practitioner, Dr Earl, who told her to take Panadeine Forte, which she would arrange to be available at the plaintiff's chemist. (Notwithstanding that a record of this conversation is not contained in Dr Earl's clinical notes, exhibit 7, and that the first reference in Dr Earl's notes to the plaintiff being hit by a trolley appears in the entry for 11 April 2003, I accept the plaintiff's evidence that she spoke per telephone with Dr Earl on 8 February 2003 and Mr Tsingolis' evidence that he picked up the medication that Dr Earl told the plaintiff to take from their chemist on 8 February 2003).

On 10 February 2003 the plaintiff consulted Dr Earl in her rooms and she was told to consult a chiropractor. (Notwithstanding that a record of this consultation is not contained in Dr Earl's clinical notes, I accept the plaintiff's evidence that she consulted Dr Earl on the Monday following the incident).

Also, on 10 February 2003 the plaintiff consulted Ms Johnson, chiropractor, at the Gladesville Chiropractic Care Centre. (Notwithstanding what is written on Ms Johnson's clinical notes, exhibit 3, some of which was written by the plaintiff and the rest of which was written by Ms Johnson, and most of which is unclear or equivocal, I accept the plaintiff's evidence that she consulted Ms Johnson on the suggestion of Dr Earl for treatment for pain in her back which she had suffered as a result of the incident, and not for the "twinge" in her back which she had suffered sometime before 20 October 2000, and for which an x-ray and a CT scan were taken on about 20 October 2000).

On 26 March 2003 the plaintiff was admitted into Royal North Shore Hospital with severe pain in her low back (see exhibit L) and partial paralysis (paraparesis) affecting both her legs (see exhibit J).

An x-ray taken on 27 March 2003 revealed narrowing of the discs at both L4/5 and L5/S1 levels (see exhibit H) and an MRI scan taken on 27 March 2003 confirmed narrowing of the discs at the L4/5 and L5/S1 levels with posterior bulging of the discs at those levels (see exhibit J).

After being treated with medication and bed-rest, the plaintiff was discharged from hospital on 9 April 2003 (see exhibit L), walking with the aid of a walking frame, and with instructions to undergo physiotherapy and hydrotherapy.

Following her discharge from hospital, the plaintiff attended the Royal Rehabilitation Centre for physiotherapy and occupational therapy (see exhibit N); she was discharged from the Centre on 28 May 2003.

At sometime before 6 June 2003 (the date appearing on the letter 6 June 2003, exhibit O1, from WIMS Injury Management Services to the GIO) the plaintiff made a claim for compensation pursuant to the Worker's Compensation Act against her employer, Diamond of Sydney Pty Ltd.

On 13 June 2003 Dr Earl issued a Workcover medical certificate (exhibit 4).

On 18 July 2003 Mr Tsingolis signed the GIO Employer's Report of Injury form (exhibit 6).

On 21 July 2003 the plaintiff signed the GIO Employee's Compensation Claim form (exhibit 5).

The treatment that the plaintiff received for her injury after making the Worker's Compensation claim

After having made her Workers' Compensation claim, the plaintiff was referred by the GIO to WIMS Injury Management Services for rehabilitation management; details of her management are contained in the WIMS reports (exhibit O).

At some stage, the plaintiff was referred to Dr Ganora, Specialist in Rehabilitation Medicine, for pain management (I do not know who referred the plaintiff to Dr Ganora and I do not have a report of Dr Ganora); Dr Ganora referred the plaintiff to Dr Griffiths, psychologist.

The plaintiff consulted Dr Griffiths on 4 September 2003 (see exhibit P1), 27 November 2003 and 5 December 2003 (see exhibit P2).

On 8 October 2003 the plaintiff consulted Dr Steel, neurosurgeon, on reference from Dr Earl (see exhibit Q1); he diagnosed L 4/5 and L5/S1 disc protrusion with nerve root compression and recommended L 4/5 and L5/S1 nerve decompression (see exhibit Q2).

On either 21 December 2003 (see exhibit S1) or 22 December 2003 (see exhibit U1) the plaintiff underwent the surgery recommended by Dr Steel (I do not have a report of a hospital or of Dr Steel related to this surgery).

On 11 February 2004 Dr Steel reviewed the plaintiff's progress (see exhibit Q3); he recommended an exercise program, with a view to her returning to her employment duties, albeit on light duty, after 6 or 8 weeks.

During March 2004 the plaintiff's mother became seriously ill and the plaintiff returned to Ireland to be with her; she stayed with her mother until the end of July 2004, when she returned to Sydney; her mother died on 10 August 2004, and she returned to Ireland for her mother's funeral.

Following her return to Sydney, the plaintiff's Return to Work Program was managed by Konekt Australia Pty Ltd (which seems to be the successor of WIMS); details of her management are contained in the Konekt reports (exhibit S); her management by Konekt ceased on 25 October 2005 (see exhibit S14).

Post treatment medical examination of the plaintiff

On 22 November 2004 the plaintiff was examined by Dr Conrad, surgeon; he concluded that the plaintiff had suffered prolapse of the L 4/5 and L5/S1 discs, for which she needed surgery, and which has left her with back pain and sciatica, the need for analgesia and physiotherapy and fitness for light duty employment (see exhibit U1 and U3).

On 18 July 2006 the plaintiff was examined by Dr O'Neill, neurologist; he concluded that, although she had a physical impairment with her low back, the plaintiff did not have any neurological impairment affecting her legs, that she was fit for full-time employment of a 'truly light duty nature' and that she did not require personal or domestic assistance (see exhibit 9A).

On 14 December 2006 the plaintiff was examined by Dr Mellick, neurologist; he agreed with the diagnosis of Dr Steel, but he disagreed with the conclusion of Dr O'Neill that the plaintiff did not have any neurological impairment affecting her left leg (see exhibit V1).

On 27 February 2007 an 'Activities of Daily Living Assessment' was conducted by Ms Prattley, occupational therapist, to assess the extent to which the plaintiff's need for personal and domestic assistance (see exhibit W).

On 3 July 2007 the plaintiff was re-examined by Dr O'Neill; he repeated the conclusions that he had reached following his initial examination (see exhibit 9A), albeit adding that he did not think that he surgery performed by Dr Steel was justified (see exhibit 9B).

On 12 July 2007 the plaintiff was re-examined by Dr Mellick; he repeated his diagnosis (in agreement with Dr Steel) and the plaintiff's need for surgery (in disagreement with Dr O'Neill) and concluded that the plaintiff's prognosis and 'favourable', with conservative future treatment (see exhibit V2).

On 19 July 2007 the plaintiff was assessed by Dr Barold, a specialist in occupational medicine (see exhibit Y).

Was the defendant under a duty of care towards the plaintiff?

The defendant's counsel submitted that, having regard to Smith v Leurs (1945) 70 CLR 256, Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 and Proprietors of Strata Plan 17226 v Drakulic (2002) 55 NSWLR 659, the defendant did not owe the plaintiff a duty to control the behaviour of the two men who struck the plaintiff with the trolley.

The plaintiff's counsel submitted that, notwithstanding the decisions relied upon by the defendant, but having regard to TAB Ltd & Anor v Atlis (2004) NSWCA 322 (per Mason P and Ipp JA), the defendant owed the plaintiff a duty to control the behaviour of the two men who struck the plaintiff with the trolley because the defendant foresaw the possibility of people, whether or not potential or actual customers, misbehaving within the store (as evidenced by its "Unruly behaviour and Undesirables" policy in its Security Manual, exhibit D, and by its "Mr Steed" and "Code Blue" procedure) and it had the power to remove people who misbehaved from the store.

I agree with the plaintiff's counsel - the defendant was the occupier of the store; it invited people, as potential customers, into the store; it controlled who entered into the store; it foresaw the possibility that people might misbehave within the store; it had the power to demand that a person leave the store; it had the power to remove a person from the store who had failed or refused to leave the store on being directed to do so, and, in these circumstances, a duty lay on the defendant to take reasonable steps to prevent injury to people in its store, whether potential or actual customers or people in the company of potential or actual customers, from the misbehaviour of other people in its store.

Did the defendant know or should it have known of the misbehaviour of the two men?

The defendant's counsel submitted that the evidence does not support a conclusion that the defendant had knowledge, either actual or constructive, that the two men were likely to behave in an aggressive manner or in a manner which would give rise to the risk of injury to patrons, including the plaintiff, in the store.

The plaintiff's counsel submitted that, notwithstanding the evidence of the witnesses called by the defendant (that none of these witnesses heard anyone making loud noises or saw anyone misbehaving), the evidence of the plaintiff and Melissa (that they heard loud noises from the two men from the time when they entered the store until the time when the plaintiff was struck by the trolley) supports a conclusion that the defendant, by its employees, must have known, by sound and/or sight, of the misbehaviour of the two men and that, in accordance with its "Unruly Behaviour and Undesirables" policy, steps should have been taken before the plaintiff was struck by the trolley to stop the men's misbehaviour.

The evidence of the plaintiff and Melissa about the loud noises that the two men made and the time during which they made the noises and their behaviour during that time was consistent and neither was undermined during cross-examination. Each was direct and frank. Neither prevaricated or procrastinated. I accept their evidence as to what happened in the store without reservation or qualification.

The evidence of the witnesses called by the defendant does not undermine the evidence of the plaintiff and Melissa as to what happened in the store (indeed, the evidence of Ms Hinson-Simms supports the evidence of the plaintiff and Melissa as to what happened in the store).

8 February 2003 was a Saturday. Saturday is a busy day, busier than any other day of the week (evidence of Ms Candava). As many as 30 staff members may have been on duty during the day (evidence of Mr Trpcevski). Of those staff members, only five who were on duty were called by the defendant to give evidence.

Mr Williams was on duty in the dairy section on 8 February 2003. He did not recall hearing anyone making loud noises or seeing anyone misbehaving with a trolley, but he did not have a positive recollection of 8 February 2003, having been asked about that day for the first time earlier in 2007, and, in any case, he may have been in the storeroom outside the store packing stock on a "cage on wheels" trolley to re-stock the shelves inside the store.

Ms Hinson-Simms was on duty either processing films in the photography laboratory or as a cashier on a check-out counter on 8 February 2003 (I accept that, at the time when the plaintiff and Melissa came to leave the store, Ms Hinson--Simms was on duty as a cashier on a check-out counter). She did not recall hearing anyone making loud noises, but, in any case, the store was always noisy, or seeing anyone misbehaving with a trolley.

Ms Han was on duty as a cashier on a check out counter on 8 February 2003. She did not recall any customer making loud noises or misbehaving with a trolley, but, as she started on duty at 12.56 pm, the incident in which the plaintiff was struck by the trolley may have happened before she started on duty, and, in any event, she did not have any positive recollection of the day, having been asked about that day for the first time during 2006.

Ms Candava was on duty as the store's service manager on 8 February 2003. She did not recall any customer making loud noises or misbehaving, but she may have been absent from the store between 12 noon and 1 pm on that day having lunch, and she did not recall any customer complaining of being struck by a trolley (I accept the evidence of the plaintiff and Melissa that the plaintiff spoke to an 'Asian' woman, who has been identified as Ms Candava, before leaving the store, at which time the plaintiff complained of being struck by a trolley, and the evidence of Mr Tsingolis that, after taking the plaintiff and Melissa to his car, he returned to the store where he 'argued' with an 'Asian' woman about what had happened to the plaintiff).

Mr Trpcevski was the store's manager but he was not on duty on 8 February 2003 (I accept that on 28 March 2003 Mr Tsingolis spoke to him about what had happened to the plaintiff, but I do not accept that his note of the conversation, exhibit 1, is an accurate record of the conversation).

Ms Vukovic (statement, exhibit 2), who may or may not have been on duty on 8 February 2003, may have heard of the incident in which the plaintiff was struck by a trolley.

The evidence of the witnesses called by the defendant does not convince me that the two men were not making loud voices or were not misbehaving with the trolley, and that evidence does not persuade me to reject the evidence of the plaintiff and Melissa.

I am satisfied, by the evidence of the plaintiff and Melissa, that the voices being made by the two men and their behaviour with the trolley was such that the defendant's employees within the store must have known of the unruly behaviour of these men and must have realised that this unruly behaviour should be stopped.

Did the defendant foresee the possibility that people might misbehave within its store so as to create a risk of injury to other people within the store?

I am satisfied that the defendant, by its "Unruly Behaviour and Undesirables" policy (see exhibit D) and its "Code Blue" and "Mr Steed" procedures, foresaw the possibility that people within its store might misbehave and thereby be or create a risk of injury to other people within the store.

Did the defendant breach the duty of care that it owed to the plaintiff?

The defendant's counsel submitted that, if it owed a duty of care to the plaintiff, the defendant did not breach the duty because the unruly behaviour of the two men occurred over a short period of time (about 15 minutes), in a large store (about 60 ms by 60 ms), in which there were a substantial number of patrons, and was not directed towards any patron.

The plaintiff's counsel submitted that the defendant breached the duty of care that it owed to the plaintiff because the defendant's employees, who must have been aware of the misbehaviour of the two men, which misbehaviour had occurred over a sufficiently long period of time (about 15 to 20 minutes) in an enclosed and relatively small area, in which there were a number of people, failed to approach the two men to ask them or to direct them to stop their unruly behaviour.

I accept that the unruly behaviour of the two men occurred: (1) over about 15 to 20 minutes (which I consider to be a sufficient period of time to allow the employees of the defendant to become aware of the misbehaviour of the men and to ask them to cease their unruly behaviour; (2) within an enclosed and relatively small area of about 60 ms by 60 ms, within which were display counters and stands (some of which can be seen in exhibit B), and in which as many as 30 employees of the defendant may have been on duty (which area I consider to be a sufficiently small area to allow the employees of the defendant to become aware of the misbehaviour of the men and to ask them to cease their unruly behaviour); (3) in an area in which there were a number of potential or actual customers of the defendant; and (4) was not directed towards any particular person or people.

I am satisfied that the failure of the employees of the defendant to ask the two men to cease their unruly behaviour long before the incident involving the plaintiff occurred amounted to a breach of the duty of care that it owed to the people, including the plaintiff, in its store.

I accept, as the defendant's counsel submitted, that the plaintiff did not complain about the unruly behaviour of the two men to any employee of the defendant before the incident involving her occurred, and that the plaintiff did not leave the store because of the unruly behaviour of the men before the incident involving her occurred, but I fail to see how the plaintiff's failure to complain or to leave the store means that the defendant did not breach the duty of care that it owed to the plaintiff.

Did the defendant's breach of the duty that it owed to the plaintiff cause the plaintiff's injury?

I am satisfied that the defendant's employees' failure to ask the two men to stop their unruly behaviour was the cause of the plaintiff being injured, because I consider that a person who is under a duty to control a situation (as the defendant could control the conduct of people within its store) should control it or at least attempt to do so to prevent injury to other people from that situation. I am satisfied that there was sufficient time before the plaintiff was struck by the trolley for the defendant's employees to bring the unruly behaviour of the two men to an end.

Did the plaintiff cause or contribute to her injury by negligence on her part?

As the defendant's counsel did not submit that the plaintiff had caused or contributed to her injury by negligence on her part (he did not submit that the plaintiff's failure to complain about the unruly behaviour of the two men to any employee of the defendant before being struck by the trolley or her failure to leave the store because of the unruly behaviour of the two men before being struck by the trolley amounted to negligence on her part), I find that the plaintiff did not cause or contribute to her injury by negligence on her part.

The parties have agreed that the plaintiff has incurred expenses totalling $48,607.40. I allow the plaintiff this amount.

The plaintiff claims future expenses for:- (1) consulting her general practitioner; (2) consulting her orthopaedic surgeon; (3) medications; (4) physiotherapy; (5) occupational therapy; (6) exercise therapy; (7) surgery.

Dr Mellick was of the opinion that the plaintiff's future treatment should be "along conservative lines" (exhibit V1), which I take to mean consultations upon a general practitioner and orthopaedic surgeon as and when required, medication as and when required, and physiotherapy as and when required, and that she does not required further surgery (exhibit V2). I accept this opinion.

Dr Barold was of the opinion that:- (1) the plaintiff should consult her general practitioner 4 times per year at a cost of $55.00 per consultation, $220.00 per annum; (2) she should consult her orthopaedic surgeon twice per year at a cost of $180.00 per consultation, $360.00 per annum; (3) she will need analgesics and anti-inflammatory agents at a cost of about $1,000.00 per annum; (4) she should "be provided with 10 physiotherapy and palliative massage treatments per year" at a cost of $70.00 per treatment, $700.00 per annum; (5) she should "be provided with" assistance with "job seeking skills" at a cost of around $2,500.00; (6) she should "be provided with "a six month gym membership" (cost not stated) and "strengthening program" at a cost of $2,200.00; (7) she may need further surgery at a cost of $12,000.00 (exhibit Y).

In view of the plaintiff's continuing disabilities, to which I will refer in due course, I accept that the plaintiff should consult her general practitioner (to monitor her condition, to recommend treatment for her condition and to prescribe medication for her condition), her orthopaedic surgeon (for advice as to condition and to recommend treatment for her condition) and her physiotherapist (for treatment) and that she should take whatever analgesics and anti-inflammatory agents are prescribed for her. I accept the opinion of Dr Mellick and part of the opinion of Dr Barold.

Although the evidence is meagre, I allow the plaintiff future expenses as follows:- (1) 2 general practitioner consultations per year, at a cost of $55.00 per consultation, $110.00 per annum; (2) 1 orthopaedic surgeon consultation per year, at a cost of $180.00; (3) 10 physiotherapy treatments per year, at a cost of $70.00 per treatment, $700.00 per annum; (4) medications, at a cost of $5.00 per week, $260.00 per annum;

making a total cost of $1,250.00 per annum, equal to $24.05 per week. The present value $24.05 per week for 48 years (multiplier 966.6) is $23,246.73. I allow the plaintiff this amount.

The plaintiff claims that she was unable, because of her injury and consequential disabilities, to perform her usual household tasks and that, therefore, she needed paid assistance (provided by the GIO) and also assistance from her (former) de facto husband (until their separation) and her daughter. She claims assistance for 6.5 hours per week at the rate of $20.90 per hour, for 269 weeks (8 February 2003 to date), making a total of $36,543.65.

The defendant disputes both the plaintiff's need for and entitlement to domestic assistance, but says that, if there was a need during the period from 8 February 2003 to end 2004, an amount of $10,000.00 would be appropriate.

WIMS recommended that at 30 December 2003 the plaintiff have domestic assistance for 23.5 hours per week at a cost of $25.00 per hour (see exhibits O5 and O6), later reduced at 15 January 2004 to 19 hours per week (see exhibit O7), and later again reduced at 22 February 2004 to 7.5 hours per week (see exhibit O9).

Dr Conrad was of the opinion at 22 November 2004 that, if her de-facto husband was unable to assist her with her housework, the plaintiff might need housework assistance for 6 to 7 hours per week (see exhibit U1).

Dr O'Neill was of the opinion at 18 July 2006 that the plaintiff did not require domestic assistance, "including the lifting associated with normal grocery shopping or laundry", albeit that "truly light duty work" should not involve excessive bending or any heavy lifting "(see exhibit 9A). I find real difficulty in accepting the opinion of Dr O'Neill as housework is not "truly light duty" work and as housework involves repeated bending and heavy lifting.

Dr Mellick was of the opinion at 14 December 2006 that the plaintiff did not require domestic assistance "at present" (see exhibit V1).

Ms Prattley was of the opinion, based upon what she was told by the plaintiff, that the plaintiff needed domestic assistance from 8 February 2003 (the date on which she was injured) until "present" (29 March 2007) ranging from 14.25 hours per week (as at 8 February 2003) to 3.75 per week (at present) (see exhibits W1 and W2).

Dr Barold was of the opinion at 19 July 2007 that the plaintiff "should be provided with 14 hours of paid domestic assistance per week until her infant child reaches its first birthday after which she should be provided with 8 hours of assistance a week with this being required on an on-going basis" (see exhibit Y). I infer that Dr Barold is of the opinion that, irrespective of the needs of her infant child, the plaintiff needs domestic assistance for 8 hours per week.

I do not have any doubt (I accept the evidence of the plaintiff, her former de-facto husband and her daughter) that the plaintiff was very restricted in her capacity to perform her usual household tasks (and, as I will say later, her usual employment tasks in her employment as a waitress) from the date of her injury (8 February 2003) until 20 December 2004 (a period of 97 weeks) when she was certified as fit to resume the clerical tasks of her pre-injury employment (see exhibit S6) and that she was restricted in her capacity to perform the heavier household tasks (and her heavier employment tasks) from 20 December 2004 until 13 September 2005 (a period of 38 weeks) when she resumed her pre-injury employment tasks (see exhibit S14).

I am satisfied, as required by s 15(2) of the Civil Liability Act, that the plaintiff needed domestic assistance (as outlined in paragraph 97) because of the injury that she suffered on 8 February 2003, the treatment that she received for that injury and the consequences of that injury and that, had she not been injured, she would not have needed that assistance because she would have performed her household tasks without assistance.

I cannot see any reason to refuse to allow the plaintiff domestic assistance from 8 February 2003 until 13 September 2005, a period of 135 weeks, at an average of 6.5 hours per week at an average rate of $20.90 per hour except for the periods of about 12 weeks from March to July 2004 and of about 6 weeks from mid August to end September 2004 when she was in Ireland during her mother's illness and then for her mother's funeral. I realise that for some of this period the plaintiff had paid domestic assistance (paid by GIO) but the evidence does not disclose the period when she had such paid domestic assistance or the cost of that assistance.

Accordingly, I allow the plaintiff past domestic assistance for 117 weeks (135 less 18) at an overall average of 6.5 hours per week at an average rate of $20.90 per hours, totalling $15,894.45

The plaintiff claims that she is still unable to perform all of her usual household tasks and that, therefore, she still needs domestic assistance from her daughter. She claims on-going assistance for 6.5 hours per week at the rate of $20.90 per hour.

The defendant disputes both the plaintiff's need for and entitlement to ongoing domestic assistance.

Ms Prattley has assessed the plaintiff's present need for domestic assistance at 3.75 hours per week. As the defendant's counsel has pointed out, this need is less than the minimum need of 6 hours per week referred to in s 15(3)(a) of the Civil Liability Act.

Dr Barold (as I have said already) expressed the opinion that the plaintiff needs on-going domestic assistance for 8 hours per week.

Although I accept that the plaintiff needs assistance from her daughter in the performance of the heavier household tasks, I am not satisfied that she needs that assistance for more 6 hours per week.

Accordingly, I do not allow the plaintiff anything for future domestic assistance.

The plaintiff claims that she was unable to perform her pre-injury employment tasks from 8 February 2003, when she was injured, until 13 September 2005, when she resumed her pre-injury employment tasks (see exhibit S14), albeit that she had resumed some pre-injury employment tasks during about February 2005 (see exhibit S7).

The plaintiff's counsel submitted that a "round figure" of $40,000.00 would be appropriate.

The defendant's counsel submitted that "an estimate in respect of past loss of wages in the order of $40,000.00 … is appropriate".

I do not have any doubt that, as at 8 February 2003, the plaintiff was employed on a part-time basis as a waitress/clerk/stock controller by her former de-facto husband in his restaurant business and that at that time she received a wage of about $300.00 gross per week.

Also, I do not have any doubt that, because of the injury that she suffered on 8 February 2003, the treatment that she received for that injury, and the consequences of that in jury, the plaintiff was unable to perform her pre-injury employment tasks from 8 February 2003 until 13 September 2005 (see paragraph 97 above).

Without calculating the actual amount of wages lost by the plaintiff between 8 February 2003 and 13 September 2005, I accept that an amount of $40,000.00 would be appropriate to compensate the plaintiff for her past lost wages and I allow her this amount.

The plaintiff claims that, because of her continuing disabilities, her capacity to perform all required employment tasks, if employed a waitress, or in some similar occupation, has been reduced.

The plaintiff's counsel submitted that a "round figure" of $100,000.00 would be appropriate.

The defendant's counsel submitted that, if the plaintiff is entitled to anything, as she had claimed $100.00 per week in her Statement of Particulars, an amount of $68,816.00 ($100.00 per week for 29 years, multiplier 809.6, less 15% for contingencies) would be appropriate.

I accept that, had she not been injured, the plaintiff would have continued in her pre-injury employment as a waitress/clerk/stock controller working about 20 hours per week (she may have added to this employment by casual employment as a hairdresser) and that, other than for child-birth and child-rearing, she would have remained in that employment (or similar employment) or in employment as a hairdresser for the rest of her working life, that is to age 65 years.

I do not have any doubt that the plaintiff's wage earning capacity has been reduced and that she is entitled to be compensated for this reduction in her wage earning capacity.

None of the doctors who have examined her, other than Dr O'Neill, is of the opinion that the plaintiff was fully recovered from her injury without any continuing disability.

None of those doctors, including Dr O'Neill, is of the opinion that the plaintiff is fully fit for any employment available to her.

I am satisfied that, now that she and her former de-facto husband have separated, and now that she has an infant child, the plaintiff will, at some time in the not too distant future, need to obtain suitable employment for longer than 20 hours per week to provide for herself and her two children, whether or not she receives financial assistance from her former de-facto husband, and her restricted earning capacity will limit the occupations open to her and the hours that she is able to work.

Although the evidence is meagre, I am satisfied that the value of the plaintiff's lost earning capacity is at least $100.00 net per week. (Indeed, I suspect that the plaintiff's lost earning capacity is greater than $100 net per week, but neither the plaintiff or the defendant has lead any evidence to allow an accurate calculation of the value of the plaintiff's lost earning capacity).

Accordingly, I allow the plaintiff $100.00 per week for 29 years (multiplier 809.6), amounting to $80,960.00, which I reduce by 15%, that is, by $12,144.00, for contingencies to $68,816.00.

The plaintiff's counsel submitted that the plaintiff, with her injury and consequential disabilities, equated to 33% of "a most extreme case", entitling her to damages of $137,500.00.

The defendant's counsel submitted that the plaintiff, with her injury and consequential disabilities equated to 25% of "a most extreme case", entitling her to damages of $28,000.00.

Minds will reasonably differ about where within a range from 0% to "a most extreme case" of 100% a particular person who suffered a particular injury and who has been left with particular disabilities will fall. I am not surprised that the plaintiff's counsel assessed the plaintiff with her particular injury and her particular disabilities as being more seriously disabled than the defendant's counsel assessed the plaintiff. I do not doubt that the plaintiff's counsel based his assessment upon the opinion of Dr Barold (who paints the darkest picture) and that the defendant's counsel based his assessment upon the opinion of Dr O'Neill (who paints the brightest picture).

I am satisfied that the plaintiff has a significant disability in her lumbar spine, that she experiences pain in her lower back, that she is restricted in the tasks that she can perform, both inside and outside her home, and both household and employment tasks, that she cannot undertake all of the activities that she undertook before she was injured, and that she takes medication for pain relief and control. In short, I accept that, as she said, the plaintiff's back injury has changed her life completely. I am satisfied that, as her condition is permanent and will deteriorate with the passage of time, the plaintiff will live an increasingly restricted life-style.

Moreover, I am satisfied that the plaintiff's present disabilities are permanent, albeit that they will wax and wane in severity, and that they will worsen with the passage of time. I accept the opinion of Dr Barold as to "the likelihood of (the plaintiff) developing accelerated degeneration at the L4/5 and L5/S1 levels" (see exhibit Y), which accords with human experience of spinal injuries.

My assessment of the plaintiff, with her in injury and the disabilities that she has as consequences of that injury, is that she equates to 30% of "a most extreme case", entitling her to damages of $101,660.00.

Summary of damages 1 Past expenses $ 48,607.40

2 Future expenses $ 23,246.73

3 Past domestic assistance $ 15,894.45

4 Future domestic assistance $ Nil

5 Past lost wages $ 40,000.00

6 Future interference with wage earning capacity $ 68,816.00

7 Non-economic loss $101,660.00

I find a verdict for the plaintiff for $298,224.58. I order that judgment be entered for the plaintiff in accordance with the verdict. Subject to submissions, I will order that the defendant pay the plaintiff's costs of the claim, including the costs of the plaintiff's Motion filed 2 August 2007.

I stand over the hearing of the claim to 10.00am on 24 April 2008 for submissions as to costs.

I vary the amount of the judgment by reducing the amount for Non Economic Loss from $101,660.00 to $101,500.00 thereby reducing the total of the verdict from $298,224.58 to $298,064.58.

I order that the defendant pay the plaintiff's costs of the claim, including the costs of the plaintiff's Notice of Motion filed 2 August 2007, on the ordinary basis.

I order that the exhibits remain with the Registrar pending the filing of a Notice of Appeal.

I order a stay of execution of my judgment for 3 months to 24 July 2008 and, if a Notice of Appeal is filed within that time, pending judgment of the Court of Appeal, or other order of the Court of Appeal, or other order of this Court, I grant liberty to either party to apply to this Court for a further order.

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.

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Judgment (176 paragraphs)

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