Vincent v Woolworths Ltd and Vincent v Counterpoint Marketing & Sales Pty Ltd

Supreme Court of NSW|2014-07-04|Before: Campbell J, Mr P

Smith v Broken Hill Pty Co Limited (1957) 97 CLR 337; The Wagon Mound (No. 2) [1967] 1 AC 617; Thompson v Woolworths (Queensland) Pty Ltd [2005] HCA 19; 221 CLR 234; Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422; Wyong Shire Council v Shirt (1980) 146 CLR 40; Texts Cited: Glass, McHugh and Douglas, The Liability of Employers (2nd Ed 1979, The Law Book Company Ltd) Category: Principal judgment Parties: Christine Vincent (Plaintiff) Woolworths Limited (First Defendant) Counterpoint Marketing & Sales Pty Ltd (Second Defendant) Representation: Counsel: Mr Mooney SC (Plaintiff) Mr P Morris SC (First Defendant) Mr PJ O'Connor (Second Defendant)

Solicitors: Symonds Britten Chadwick Lawyers (Plaintiff); HBA Legal (First Defendant) Holman Webb Lawyers (Second Defendant) File Number(s): 2010/00401259; 2013/00190244

The relationship between the parties

Ms Vincent was a part-time merchandiser employed by Counterpoint. Counterpoint's business involved working with manufacturers, importers and suppliers to develop and improve sales of their products in wholesale and retail outlets. The work of a merchandiser, like Ms Vincent, covers product presentation, the creation of promotional displays, and checks that retailers are complying with agreements with suppliers as to the marketing strategy for the sale of the suppliers' products in the retailers' supermarkets.
An important part of a merchandisers work is the implementation of planograms. These are the culmination of product sales strategies as agreed between the supplier of goods and the retailer. The agreements descend into considerable detail about the display of the supplier's product in the retailer's supermarkets. The basic idea is that the product is to be displayed to its best advantage to attract the interest of customers. Once agreement is reached between the supplier and the retailer, a planogram is prepared, setting out what product which may be performing poorly is to be removed from the shelves and what product is to replace it. A planogram includes lists of new and deleted items described by reference to stock code, product description, unit size, case pack size and Australian Product Number. A planogram includes an intricate diagram showing how and where the new products are to be displayed (Exhibit B).
Typically, the display instructions in the planogram are not specific to a single outlet. They represent a national sales strategy (184.20T) which will be implemented in all of, say, Woolworths' supermarkets nationwide.
Once agreed, the planogram is provided to the responsible manager in each Woolworths' store. Implementation of a planogram is work which is regarded as requiring particular attributes for which merchandisers need training. As at 2008 Counterpoint employed 150 to 200 merchandisers throughout Australia. About 50 per cent of Counterpoint's merchandising work involved the implementation of planograms. But not all of the merchandisers were asked to perform this work. At times Counterpoint organised "teams" of merchandisers to perform planograms. About 50 of their merchandisers would be deployed on this work at those times (164.25 - 165.20T).
One of Counterpoint's clients was a supplier of shampoo and similar products. It would negotiate its marketing strategy directly with Woolworths. But once the planogram was settled it would be distributed to each Woolworths supermarket nationwide engaged in the campaign. Some suppliers relied upon the retailer to implement the planogram, but this supplier engaged Counterpoint to provide merchandisers for that work.
The system required the merchandiser to contact the responsible manager of the Woolworths store to arrange a suitable time during business hours for the merchandiser to attend to execute the planogram within the timeframe for its implementation agreed between Woolworths and the supplier. Upon arrival at the supermarket as arranged, the merchandiser was required to "sign-in" and report to the responsible manager who would provide the planogram to the merchandiser. The merchandiser would normally carry some personal equipment like gloves, a carton cutter, cable ties and scissors (151.20T). The retailer would provide equipment like "safety steps, flat bed trolleys, ladders" (151.40T). A safety step, which figures in this case, is a small square elevated platform incorporating a step providing a working platform for easier access to products on higher shelves (see Exhibit 4). It is referred to as a safety step because its main purpose seems to be to avoid manual handling injuries through "over-reaching" (Exhibit E; Exhibit 5).
Ms Vincent lives at Broulee in the Batemans Bay region on the New South Wales South Coast. She moved to that region in 1999. She commenced work with Counterpoint as a merchandiser in about November 2007. She was at that time a mature age student studying for a Bachelor of Arts at the University of Wollongong's Batemans Bay campus. In January 2008 she commenced performing merchandising work for another marketing company. She usually worked at least 10 hours per week with Counterpoint (19.15T). Her area was from Batemans Bay to Narooma. She worked at a Woolworths supermarket in each of Batemans Bay and Narooma. There were other retail outlets that she was directed to attend in this region in the course of her work.
She performed the full range of merchandising duties for Counterpoint including the implementation of planograms. When informed by Counterpoint that there was a planogram to be implemented at Woolworths' Narooma supermarket, Ms Vincent would contact the grocery manager to arrange a suitable time during business hours; attend the store at the appointed hour; see the grocery manager to obtain the planogram; obtain the safety step and a vinyl pad to kneel on from the dock area; and commence work. She also utilised Woolworths' shopping trolleys when necessary, to hold discarded stock. If the planogram involved a lot of work, sometimes Counterpoint would provide a second merchandiser. More usually, in Ms Vincent's region, the store would assign another worker to the task (26.20T), and this was so at Woolworths, Narooma.
Implementation of a planogram required the merchandiser to work at a steady pace, reorganising the product display from the top to the bottom of the fixtures involved. The order in which the task was performed was left to the discretion of the merchandiser. The work required a degree of concentration and absorption in the task. It was performed during normal business hours in the shopping aisles as customers were passing, pushing trolleys and doing their shopping.

The accident of 27th November 2008

Ms Vincent's accident is depicted by Exhibit A which is CCTV footage from Woolworths' in-store security system. The video is not of very good quality because of intermittent interference in the recording. For this reason, no continuous image is available. Exhibit A is supplemented by Exhibit 1 which is a series of stills taken from the footage. The recording was played a number of times in court and I have viewed it in chambers since reserving my decision.
Ms Vincent attended Woolworths' Narooma store at about 10:30 am on 27th November 2008 by prior arrangement to implement a planogram. When she arrived she signed the visitor's book, was provided with a "visitor sticker" and met with the grocery manager in her office (32.35 - 33.15T). The grocery manager provided Ms Vincent with the planogram, she then collected the safety step, a mat and a shopping trolley and "made [her] way up to the aisle and started working" (33.20T).
That day she was required to work in the shampoo section, which was near one end of an aisle close to the freezers of frozen food on the other side of a perpendicular aisle.
From her evidence (36.40T) and from my impression of the CCTV footage, in the moments leading up to the accident, Ms Vincent was concentrating on her task. She stepped up on to the safety step, to remove some product from higher in the fixture, as she stepped down from the safety step she collided with a shopping trolley being pushed past by a male customer (Exhibit 1.10). Ms Vincent felt the impact on the region of her right buttock or hip. She said it was hard (38.45T). She fell and twisted to her left landing heavily on the aisle-floor. Her hair, which appears somewhat longer than shoulder length, became caught in the wheel of the trolley. She experienced immediate pain in her back and neck. The customer helped her up from the floor, but she remained in considerable pain and was taken to Batemans Bay hospital by ambulance where she was admitted because of the severity of her pain. Whilst in hospital she noticed pain in her left knee.
From the CCTV footage it is evident that the male customer was pushing his trolley down about the centre of the aisle looking at the goods displayed for sale on the shelving to his left. He was not looking at Ms Vincent who was working to his right. It is also evident that Ms Vincent did not look around before descending from the step.
Before stepping down from the step, the plaintiff looked to either side but did not turn her head fully either to the left or to the right to check for customers passing, pushing trolleys. Her evidence was that she did look, but without turning her head at all. As she demonstrated when giving evidence, she turned her head very slightly in each direction moving her eyes to the extremity of their range of movement in that direction as she did so (91.5 - .10T; 92.35 - .50T; 94.10 - .25T). She relied upon her peripheral vision and her sense of hearing.

The liability issues

In Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330 at 337[18] Gummow J said: First, the proper resolution of an action in negligence depends on the existence and scope of the relevant duty of care. Secondly, whatever its scope, a duty of care imposes an obligation to exercise reasonable care; it does not impose a duty to prevent potentially harmful conduct. Thirdly, the assessment of breach depends on the correct identification of the relevant risk of injury. Fourthly, breach must be assessed prospectively and not retrospectively. Fifthly, such an assessment of breach must be made in the manner described by Mason J in Wyong Shire Council v Shirt [(1980) 146 CLR 40 at 47-48].
In the case against Woolworths, the assessment of breach must be made in the manner required by s 5B Civil Liability Act 2002 (NSW) (CLA); the CLA does not apply to claims for work injury damages: s 3B(1)(f) CLA. The assessment of breach in the case of Counterpoint then, is to be made in accordance with Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40.

The nature of the duty of care owed by Woolworths to Ms Vincent

Woolworths accepted it owed Ms Vincent a duty of care. But it argued that the relevant duty was the "bare" duty of an occupier of premises in accordance with Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; 162 CLR 479. It argued that the circumstances of the case did not engage the somewhat extended duty of exercising reasonable care to control the activities carried out on the premises discussed in Thompson v Woolworths (Queensland) Pty Ltd [2005] HCA 19; 221 CLR 234 [23] - [27]. Ms Vincent joined issue with this submission. As in Thompson the essential nature of the disagreement between the parties is about "the appropriate formulation of [the] duty".
I accept Ms Vincent's argument. The formulation of the relevant duty by Deane J in Hackshaw v Shaw [1984] HCA 84; 155 CLR 614 at 662 - 663, applied by the majority in Zaluzna, depends upon "all the relevant circumstances including the fact of the defendant's occupation of premises and the manner of the plaintiff's entry upon them". One may accept that an occupier's primary obligation relates to the physical state and condition of the premises: Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 at 263 [18]; but as in Thompson the totality of the relationship between the parties, and the ability of the occupier to control the activities which are conducted on its premises, may require the exercise of reasonable care to avoid foreseeable risks of injury arising out of those activities requiring, in appropriate cases, the implementation of a safe system of work for visiting contractors and their employees.
Ms Vincent was not Woolworths' employee. Nor were they in an analogous relationship like that identified in the labour hire cases. She was and remained at all times Counterpoint's employee and it had primary responsibility for the safety of her system of work, accepting that its control was attenuated by the consideration that Ms Vincent's work had to be performed on Woolworths' premises during business hours whilst it continued to conduct its ordinary activities as a supermarket: Dibb Group Pty Ltd v Cole [2009] NSWCA 210; Aust Tort Reports 82-022 at [54].
It is an error to characterise the work performed by Ms Vincent at Woolworths' premises as for the benefit of the supplier and Counterpoint only. The attractive presentation and promotion of a supplier's goods was also in Woolworths' commercial interests because those matters fostered a good commercial relationship with that supplier, and were calculated to promote increased sales of the supplier's goods from which Woolworths would profit as retailer. Moreover, requiring merchandising work to be done during ordinary business hours was for Woolworths' convenience. It also provided, or made available, some of the equipment necessary for the performance of the work i.e. the safety step, the kneeling mat and the shopping trolleys for moving the goods. As in Thompson, these are all relevant circumstances.
For these reasons I am persuaded that Woolworths owed visiting merchandisers a duty to exercise reasonable care to avoid unnecessary risks of injury arising out of the ongoing conduct of Woolworths' operations while they were performing their work.

The question of Woolworths' negligence

Ms Vincent's case in negligence is that Woolworths failed to take precautions against the risk of her suffering personal injury in the course of her work. The starting point for deciding liability is the correct identification of that risk of personal injury for the purpose of the assessment of negligence. This involves identifying "the true source of potential injury": Dederer at 351 [60]. Correct identification of the risk is necessary for the assessment of whether a reasonable person in the position of the defendant would have taken the precautions against the risk suggested by the plaintiff (Dederer at 351 [59]).
It is axiomatic that the question of whether the defendant exercised reasonable care is to be prospectively not retrospectively: Dederer 353 [65]; Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 at [126] - [128]. As Hayne J explained in Neindorf v Junkovic [2005] HCA 75; 80 ALJR 341 at [96], this requires the court to assess breach "without knowing what in fact happened" to the plaintiff. In Vairy at [126] his Honour said: Although that judgment must be made after the event it must seek to identify what the response would have been by a person looking forward at the prospect of the risk of injury.
It is difficult, however, to correctly identify the risk of injury without knowing something of what in fact happened. Gummow J spoke of the need to "accurately identify the actual risk of injury" faced by a plaintiff: Dederer at [59]. As I have said, correct identification of the risk seeks to elucidate "the true source of potential injury" (Dederer at [60]). In my judgment, these objects cannot be achieved without knowing what happened to the plaintiff. Indeed, every court always knows from the time the pleading is filed what the plaintiff said happened and what specific act or omission (failure to take precautions) she or he relies upon as constituting negligence.
It should be recognised that there is an implicit degree of artificiality in assessing breach, after the event, prospectively. But the air of artificiality becomes overwhelming if one eschews all hindsight when correctly, or accurately, identifying the risk of injury at the outset. In putting it this way I am not attempting to defy authority binding on me rather, I am attempting to apply it in the ordinary, everyday business of the trial court. It seems to me, reading Gummow J's judgment in Dederer, especially from p 351 to 355, as a whole, the question of the proper identification of the risk is a precursor to the assessment of breach. That is to say it is a question logically anterior to, and separate from, the assessment of breach. At that preliminary point it is permissible, indeed necessary, to know what happened and what act or omission the plaintiff says constitutes negligence. These matters involve hindsight. When these things are known, one then embarks upon (returns to, as Gummow J put it: Dederer at [65]) "to the inquiry into the assessment of breach". From this point on, all hindsight reasoning is impermissible because hindsight diverts attention from what reasonable care required in foresight, to whether in hindsight the defendant could have prevented the accident which befell the plaintiff: Dederer at [65]; Vairy at [128]; Neindorf at [97].
Bearing these things in mind and before turning to the breach inquiry required by paragraphs (a) to (c) of s 5B(1) CLA, I identify the relevant risk of harm as the risk of merchandisers suffering personal injury by being struck by moving trolleys pushed by customers. Ms Vincent says that the relevant precaution which Woolworths failed to take is the provision of a plastic barricade of the type depicted in the photograph annexed to the report of Mr Colin Simpson dated 12th May 2012 (Exhibit M); or the provision of the substantial step ladder depicted in some of the photographs in Exhibit 4; or providing a helper to keep customers clear from the merchandiser while the merchandiser was absorbed in her or his duties.
It was also, I think faintly, put that the work could have been done out of business hours. I think this is a completely unrealistic suggestion, which can be dismissed at the outset for the following reasons. The evidence is that Woolworths' Narooma store's hours of operation in November 2008 were from 7 am to 10 pm, 7 days per week (197.50T). All outlets of every retailer required merchandisers to attend during ordinary business hours (161.5T). I infer that the retailers may have legitimate security concerns about work by visiting contractors being done out of hours. In any event Ms Vincent arranged to attend at 10:30 am on 27th November 2008 because that time suited her, having regard to her other commitments of a personal and domestic nature (75.40T). Counterpoint's merchandisers always work during ordinary business hours, Monday to Friday while the store is open to the public (25.45T; 164.5-35T; 188.10T). It was neither reasonable nor practicable for merchandisers work to be done out of hours.
The risk of harm I have identified is plainly reasonably foreseeable. All the more so, when one considers that it is in the nature of things that the attention of the merchandiser may well be absorbed in her task, and the customer's lookout diverted by attention to the goods displayed for sale by Woolworths on its shelving. The evidence of Ms Freebody, an employee of the Narooma store with 20 years' experience, including 8 in implementing planograms (191.45 - 192.5T), and Ms Hogan who was employed by Counterpoint as part of its occupational health and safety team (162.50 - 163.5T; 170.40 - 171.15T) that they had never heard of a merchandiser being struck by a trolley does not detract from this finding: Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 309. An occupier, generally, may be entitled to expect that entrants may exercise reasonable care for their own safety (Thompson at [35]), but this is a factual consideration of variable significance. Moreover, even in a case of occupier's liability, that expectation does not displace the competing consideration that "a person who owes a duty of care to others must take account of the possibility that one or more of the persons to whom the duty is owed might fail to take proper care for his or her own safety": Nagle v Rottnest Island Authority [1993] HCA 76; 177 CLR 423 at 431. I am comfortably satisfied that the risk was reasonably foreseeable.
Sub-paragraph 5B(1)(b) introduces as a separate question a consideration of the probability of the materialisation of the risk. I am required to consider whether the risk identified is "not insignificant". This requirement may be seen as a counter-balance to the consideration arising out of Shirt (p 48) that a risk may be extremely unlikely to occur, yet be reasonably foreseeable. A risk which is extremely unlikely to occur is insignificant; one that it is unlikely to occur is not insignificant.
At this point of the inquiry, it is necessary to refer again to the evidence of Ms Freebody and Ms Hogan. Ms Freebody, as I have said, has worked at the Woolworths Narooma supermarket for 20 years, performing planogram work, from time to time, for 8 of those years. As I have said she had not heard of a merchandiser (or I would infer anyone else) being injured in a collision with a shopping trolley before. She was aware of customers being injured slipping on foreign matter on the floor (199.40T). On its own her evidence may be unlikely to carry great weight given that Woolworths has a national business with very, very, many outlets. Ms Freebody confirmed, what might be notorious, that when injuries occur, paperwork is completed. Doubtless Woolworths would have been in a position, had it seen fit, to prove by affirmative evidence whether injury through collision between trolley and worker had ever occurred.
Ms Hogan's evidence falls into a somewhat different category. Ms Hogan had been employed by the group of companies of which Counterpoint is a member from 1987 until the end of 2011 (146.15 - .45T). She is currently employed as the human resources manager with a different corporate group. Her employment with the Counterpoint group was also in human resources with an emphasis on occupational health and safety. She was part of the team responsible for documenting the group's response to the enactment of the Occupational Health and Safety Act 2000 (NSW). She was also involved in the rehabilitation of injured workers, at one time coordinating the attempts for Ms Vincent to return to work with the company. Between about 2002 and 2006, she was involved in assessing the risk of occupational injury to which merchandisers were exposed and devising work systems to manage it. In the course of this work she actually performed merchandising work.
This assessment resulted in the production of a training manual for merchandisers (Exhibit E). Photographs depicting correct work techniques from the manual are reproduced as Exhibit 4. Ms Hogan is the person depicted demonstrating the activities. A work method statement for merchandisers dated 12th February 2007 is Exhibit 5. The statement is reviewed every two years. Ms Hogan is the author of the 2007 edition. Ms Hogan's evidence, as I have recounted, is that Counterpoint maintained a workforce of merchandisers numbering between 150 and 200. These persons are employed Australia-wide attending various retail outlets every weekday (164.5 - .35T). As part of the work that was done to identify risks, prepare the manual and the work method statement, she said that Counterpoint's history of workplace injuries over the period since it had been in business from 1982 was reviewed. She had no recollection of any "accident involving an injury to a merchandiser within a store as a result of someone colliding with them with a trolley" (162.50 - 163.5T). Ms Hogan was an impressive witness who exuded an air of competence. But I garnered the impression that this particular evidence about the history of injuries to merchandisers (162.25 - 163.35T) was given with some hesitation, not because Ms Hogan was not trying her best to recall, but her recollection about the details of the results yielded by that part of the investigation was vague.
On the other hand, she was much clearer on her evidence about the preparation of the work method statement. It is a brief document, but Ms Hogan said its purpose was "to give a comprehensive analysis of risk and remedy to the merchandisers tasks". She agreed that the work method statement did not identify the risk of a merchandiser being struck by a trolley. She gave the following evidence at (171.15T; cf 154.30T)): Q. When your company was analysing the risks involved in implementing a planogram within an operating retail store, your company did not consider that it was unsafe to carry out that activity using a safety step, stepping up and down from a safety step? A. No. Well, we did consider it. We thought it would be safe.
Exhibit 5 does not identify collisions between merchandisers and customers as a possible hazard. "Safety steps" are referred to as required equipment and merchandisers are required to use them. But as I have said, the risk which they are to guard against is manual handling injury by overreaching.
Again, I record that no evidence was led by reference to the records of Counterpoint that injuries through collisions with trolleys were completely unknown.
Notwithstanding the absence of evidence of what a search of the injury records of both Woolworths and Counterpoint would reveal, I accept the evidence of Ms Freebody and Ms Hogan. Despite my reservations about Ms Hogan's hesitancy about what the injury records of Counterpoint revealed during the review of work methods for the purpose of compliance with the occupational health and safety legislation, I accept that consideration was given to the possibility of collision between a customer's trolley and a merchandiser, notwithstanding the somewhat inconsistent passage at 154.30T, and it was considered unnecessary to devise any precaution against it. I will return to this point but, for present purposes this suggests to me that no record of the materialisation of such a risk was encountered, and the risk was assessed as too slight to warrant mention.
From all of this evidence, I infer that appreciable personal injury due to a collision between a merchandiser and a customer's trolley enjoys a very low probability of occurrence. One need only consider the number of supermarkets throughout Australia, the number of customers visiting on a daily basis using trolleys, and the number of persons required to perform their work in the aisles of supermarkets to appreciate that this must be so. Viewing the matter prospectively and objectively, I would rate the probability of the risk materialising as very unlikely to occur. In my judgment, the risk of personal injury is insignificant. I am not persuaded that Ms Vincent has proved that the risk is not insignificant.
Lest I am wrong in this conclusion, on the assumption that the risk is not insignificant, as required by s 5B(1)(c) CLA, it is necessary for me to consider whether a reasonable person in Woolworths' position would have taken one or another of the precautions relied upon by Ms Vincent, bearing in mind, amongst other relevant things, the considerations set out in s 5B(2). At this point it is especially important not to lapse into hindsight: Neindorf at [97]; Vairy at [128]; and Dederer at [65].
Section 5B(1)(c) involves the same type of balancing exercise required by the common law test expressed in Shirt. Indeed it is informed by it. In deciding what the reasonable retailer would have done in the present case the starting point is that the risk was plainly foreseeable albeit very unlikely to occur. The likely seriousness of the harm was not great. Almost all instances of a collision between a trolley pushed at walking pace and another entrant to the supermarket who was either stationary or moving at a similarly slow pace would most probably result in no actual or appreciable injury. It is, of course, possible (as happened here) that the unsuspecting, unprepared other entrant might be knocked to the ground with resulting significant injury. Viewed prospectively, that is a very unlikely consequence.
Assessing the burden, or "the expense, difficulty and inconvenience", (Shirt, p 48) of taking the suggested precautions is problematic in this case. Doubtless there is little expense in an individual store providing a plastic barricade or even the suggested aluminium step ladder. However, consideration of either precaution cannot be restricted to the Woolworths store at Narooma. If it is necessary there, it is necessary in every like supermarket conducted by all retailers throughout the length and breadth of the country. On the evidence before me, I cannot say that this involves little expense. All the more so, if what is required in every case is the wages of another person to stand lookout during the 3 or 4 hours that a merchandiser might be engaged on her or his task.
I interpolate that, as I understand the evidence that a second worker is sometimes made available, and it related to the magnitude of the particular planogram to be implemented. Sometimes Counterpoint would provide a second merchandiser for a big job. Likewise, the store may provide a member of staff to assist on a big job. It was Ms Vincent's expectation on 27th November 2008 that a member of Woolworths staff (I infer, probably Ms Freebody) would be provided to assist. But she was not immediately available when Ms Vincent commenced work. As I say had she been available she would have been engaged in the work of a merchandiser not standing lookout.
In terms of difficulty and inconvenience, any plastic barricade of the type depicted in Mr Simpson's photographs would need to accommodate, and provide sufficient space for, a merchandiser performing the full range of activities required. No measurements were given in evidence, and the necessary dimensions were not explored. It was not established that such a barricade could be used without obstructing or impeding the passage of customers during ordinary business hours. In Counterpoint's assessment, merchandising could be carried out without a barricade (173.20-30T; 177.10T). Clearly, it would be unacceptable to occlude the aisle for the duration of the task (188.15T).
The type of ladder proposed as a precaution is depicted in 2 photographs in Exhibit 4, one bearing the caption "Facing up Product"; and the other noting that "Store Ladders are used to reach products on higher shelves". The ladder is a step-ladder of what appears to be substantial aluminium construction having not only steps, but handrails for ascent and descent, a platform to work from and a shelf for the placement of products. Ms Hogan, who as I said is depicted using the ladder, described it as "an aid to get to the higher shelves". She added "it also has a good barricade around it" (154.40T). She also said "it has protection around it" (155.40T) by which she meant protection of the merchandiser from anyone hitting the ladder (156.5T). As I have said, Ms Hogan's evidence was that ladders were not provided to merchandisers to take to the supermarkets. Whether one was available depended upon whether the supermarket provided it.
Ms Freebody gave evidence about a ladder available at the Narooma supermarket. When she was shown the photographs of the ladder in Exhibit 4 she said the one at Narooma "is a lot bigger" (202.35T). She described it as "on wheels". It had no wheel locks, but when "you stand on it … it just pushes down so it is a bit stable" (203.10T). She said it is not easy to move around the store.
Ms Vincent was not aware that a ladder was available at Woolworths' Narooma store. She had never seen one anywhere about the store or where she went to pick up the safety step (121.35 - .40T).
I am not persuaded that the step ladder depicted in Exhibit 4 was suitable for all aspects of the planogram task being performed by Ms Vincent on 27th November 2008. As shown in the photographs, it is quite a large item. If positioned perpendicular to the front of the fixtures, it would likely obstruct the passage of customers along the aisle and would block Ms Vincent's access to the lower shelving. An advantage of the safety step is that her access to the lower shelving, it seems to me, was unimpeded. Even if placed parallel to the fixtures the handrail may well obstruct easy access to the lower shelving. In short, it seemed suitable for access to the higher shelves only and otherwise was likely to get in the way of the efficient performance of some aspects of the work; all the more so in the case of the bigger ladder, in fact available at the Narooma store which was hard to move around the store. I am of the view that it has not been shown that the use of the ladder would conveniently facilitate the performance of the planogram work. Moreover, there is no evidence that there was any contractual arrangement between Woolworths and Counterpoint. The contract seemed to be between the supplier and Woolworths. Counterpoint was the supplier's representative for performing the merchandising work. There is no evidence that Counterpoint requested the provision of appropriate equipment. Indeed, the evidence suggests that Counterpoint relied upon the retailers to provide equipment to access the higher shelves (151.25 - .45T; 152.35 - .45T).
There is no evidence as to the expense involved of Woolworths acquiring ladders of the type shown in Exhibit 4 for use by merchandisers in its supermarkets throughout Australia. Although I have found that the duty extends beyond the exercise of reasonable care in relation to the condition of the premises, I am not persuaded that reasonable care required Woolworths to provide barricades or ladders for the employees of others who entered its stores to perform work on behalf of suppliers.
I am not satisfied that a reasonable retailer in Woolworths position would provide a helper to stand lookout while a merchandiser performed planogram work. As I have said, when a helper was provided it was to assist with larger planogram tasks. In truth, if a system of providing a cockatoo to warn the merchandiser of approaching trolleys was adopted, two would be required on each occasion; one to look in each direction along the aisle.
Balancing all of these various considerations out, I am not satisfied that a reasonable retailer in the position of Woolworths would have taken any of the suggested precautions.
There is perhaps another issue which supports the conclusion that Woolworths were not negligent in the circumstances of this case. The question of negligence is a question of fact, but it is not a question of primary fact. It depends upon the making of a judgment applying the normative standards embodied in the law of negligence and the purposes of the Civil Liability Act. In Neindorf at [8] - [10] Gleeson CJ observed that reasonableness is not a matter of "legal prescription" rather it requires the tribunal of fact to grapple with the practical problems presented by the case. A decision that a supermarket is negligent by failing to take the precautions suggested by the plaintiff here against the identified risk of injury is a large step requiring not only Woolworths, but all supermarkets in Australia, given there is but one common law of Australia, to adopt the same precautions, not for the protection of their employees, but to avoid unnecessary risks of injury to the employees of others who work in their stores. In this regard, I think it apposite to call to mind the statement of McHugh J in Dovuro Pty Ltd v Wilkins & Ors [2003] HCA 51; 215 CLR 317 at 329[34]: If negligence law is to serve any useful social purpose, it must ordinarily reflect the foresight, reactions and conduct of ordinary members of the community or, in cases of expertise, of the experts in that particular community. To hold defendants to standards of conduct that do not reflect the common experience of the relevant community can only bring the law of negligence, and with it the administration of justice, into disrepute. That is not to say that a defendant will always escape liability by proving that his or her conduct was in accord with common practice. From time to time cases will arise where, despite the common practice in a field of endeavour, a reasonable person in the defendant's position would have foreseen and taken steps to eliminate or reduce the risk that caused harm to the plaintiff. But before holding a defendant negligent even though that person has complied with common practice, the tribunal of fact had better first make certain that it has not used hindsight to find negligence. Compliance with common practice is powerful, but not decisive, evidence that the defendant did not act negligently. And the evidentiary presumption that arises from complying with common practice should be displaced only where there is a persuasive reason for concluding that the common practice of the field of activity fell short of what reasonable care required.
On the evidence I have accepted, the system under which Ms Vincent worked on 27th November 2008 complied with the common practice and experience of supermarket operators and merchandisers throughout Australia. The evidence in this case does not provide any persuasive reason for concluding that this common practice in this field of activity falls short of what reasonable care required.
I have already referred to the expectation that entrants will exercise reasonable care for their own safety. This is a factor to be balanced out in the assessment of breach against the foreseeability of inadvertence, or even carelessness. Viewed through the lens of reasonableness, in my view, a reasonable occupier in the position of Woolworths was entitled to expect that the low grade risk of actual injury occurring through a collision between an entrant and a moving shopping trolley could be managed, that is avoided, by the exercise of reasonable care on the part of each entrant, customer and merchandiser. The explanation for what happened here is not negligence on the part of the occupier. Rather, the collision was an accident properly so called because neither the customer nor Ms Vincent looked where they were going as ordinary care usually requires.

Causation

As I have rejected the plaintiff's case in negligence it is difficult in the extreme to make any contingent findings about causation in the abstract, especially as I am unable to say on the evidence before me whether the barricade or ladder were practicable in the sense that they would not have unreasonably impeded the performance of Ms Vincent's work. I suppose if reasonable care required someone to stand lookout, it might be said that passers-by would have been directed around Ms Vincent. However, it is well to bear in mind that the customer did not run into Ms Vincent as she stood in an exposed position on the safety step performing her work. The collision happened when she stepped down from the safety step and collided with the side of the moving trolley. From this I infer that the customer, although not looking, was on a path that would have taken him around Ms Vincent while she stood on the safety step. Obviously had she seen him, she would not have stepped down as she did, either she would have waited or stepped down to one side of the step rather than into the aisle. Even if one assumes breach, I am not persuaded that the posited negligence is a necessary condition of Ms Vincent's harm. Questions under s 5D(1)(b) CLA do not arise.

The liability of Counterpoint

The law of employer's liability may well be regarded as the last outpost of the "imperial march of [old] negligence law": cf Astley v Austrust Limited [1999] HCA 6; 197 CLR 1 at 23 [48]; and s 3B(1)(f). The duty is sometimes described as "stringent" but the standard remains one of reasonable care: Braistina at 313 - 4; Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1 at [98]. The duty's apparent stringency arises because of its non-delegability: "The requirement of reasonable care … extends to seeing that care is taken" Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; 179 CLR 520 at 550.
Many cases place emphasis upon the obligation of the employer to "take into account the possibility of thoughtlessness, or inadvertence or carelessness, particularly in the case of repetitive work": Czatyrko v Edith Cowan University [2005] HCA 14; 79 ALJR 839 at 843 [12]; Smith v Broken Hill Pty Co Limited (1957) 97 CLR 337 at 342. In Smith Taylor J, with whose judgment the other members of the Court agreed, expressed the rule as follows at 343: … I am content to conclude that, in considering whether a particular set of circumstances is sufficient to fasten liability on an employer, the relevant test involves a simple inquiry concerning just what precautions or safeguards the exercise of reasonable care requires and that, in making such an inquiry, the consequence of inadvertence or thoughtlessness is a variable factor which should be taken into account.
At p 342 he had made clear that by inadvertence and inattention (and even carelessness) he had in mind something falling "short of positive negligence" on the part of the employee. Nor should the formulation of the "variable factor" be understood as meaning that simple tasks cannot be left to the discretion of even unskilled ordinary workers. This is illustrated by Taylor J's conclusion in Smith expressed as follows (page 343 - 4): I confess that I am unable to see that any such risk was involved in the task which they were asked to perform provided that it was performed, as it should have been, in a reasonably sensible and careful manner. …. In effect it may, therefore, be concluded that the task assigned to the appellant and Woods did not involve any real risk of injury even if carried out with some reasonably foreseeable degree of inadvertence or thoughtlessness. The accident occurred because the employees to whom the task had been left adopted a "quite extraordinary and unnecessary method" of performing "a perfectly simple task"
By reference to Smith, Glass, McHugh and Douglas, The Liability of Employers (2nd Ed 1979, The Law Book Company Ltd) say (at p 23): Simple uncomplicated operations such as the method of using his tools of trade by a tradesman could not reasonably require the provision of a system by the employer. Nor will there be much scope for alleging the necessity for a system in the case or casual or isolated tasks of a simple character which do not involve any real risk if ordinary care is exercised. Electric Power Transmission Pty Ltd v Cuiuli (1961) 104 CLR 177 is an oft-cited example of the application of this rule. There it was not negligent for an employer to leave a young man employed as a caretaker at a construction camp in the bush to his own devices in using a tomahawk, or hatchet, to chop wood even if "[c]are is always and obviously required in the management of a chopping instrument" per Kitto J at p 180. Glass, McHugh and Douglas recognise (p 45) that generally no question of the liability of an employer arises when an employee is injured performing "isolated operations of no complexity outside the normal system or simple uncomplicated operations within it".
As I have said by reference to Cole, the requirements of reasonable care on the part of the employer may become attenuated when by necessity "an employer sends an employee to work at premises not under the employer's control or using equipment other than that supplied by the employer": Cole at [43]. In Estate of the Late MT Mutton by its Executors & R W Mutton trading as Mutton Bros v Howard Haulage Pty Ltd [2007] NSWCA 340, Ipp JA said at [146]: Due regard must be had to this absence of control when determining what amounts to the taking of reasonable care to avoid exposing employees to unnecessary risks of injury, and what amounts to a safe system of work.
His Honour is referring to the absence of actual control when employees are working on the premises of others with the equipment of others.
Before turning to the question of breach, I record that there is no issue that Ms Vincent's degree of permanent impairment resulting from the injury is "at least 15 per cent" and that she has otherwise complied with the pre litigation conditions for bringing a claim for work injury damages.
The question of breach of an employer's duty is assessed by the application of ordinary common law principles, including the correct identification of the risk of injury, and the assessment of breach "in the manner described by Mason J in accordance with Shirt". (Dederer at 337[18]). Reasonable care may require more of an employer than an occupier: Czatyrko at 843 [14]. Unlike s 5B(1)(b) CLA, the common law does not require the separate consideration of the probability of the risk materialising; that matter is considered as part of the balancing exercise required when adjudging the response of a reasonable person to the risk.
Applying these principles to the different case of an employer, I am unable to arrive at a different conclusion.
The relevant risk of harm remains the risk of merchandisers suffering personal injury by being struck by moving trolleys pushed by customers. Applying the undemanding test of foreseeability, the risk remains plainly foreseeable for the reasons expressed at [30], perhaps even more so when one considers the particular relevance of Taylor J's "variable factor" forming part of the constructive knowledge available to an employer.
The next question is to determine what a reasonable employer would do by way of response to the risk. This calls for consideration of the magnitude of the risk and the degree of probability of its occurrence along with the expense, difficulty and inconvenience of taking alleviating action and other conflicting responsibilities which Counterpoint may have.
Viewed prospectively, I am satisfied that reasonable care on the part of an employer justified leaving this simple task of completing a planogram involving stepping onto and off a safety stool to the good sense and ordinary care of a mature aged worker. As I have already found, the risk was very unlikely to occur; if it did occur it was very unlikely to result in any actual or appreciable injury, although it was possible that a real injury could be suffered if the plaintiff fell. The question of expense, difficulty and inconvenience of taking the suggested alleviating action needs to be considered not just from the standpoint of the duty owed to the plaintiff individually, but by reference to all of Counterpoint's responsibilities to all of its employees engaged as merchandisers nationwide.
If barricades or step ladders were to be provided, consideration would need to be given to the means available to each merchandiser to transport the equipment, particularly the bulky ladder from store to store. This would involve a degree of expense, which the evidence in this case did not begin to measure. It may also involve a degree of inconvenience to the merchandisers, and of course, expose them to additional manual handling risks getting the equipment in and out of or onto and off the motor vehicle and carrying it to and from the shop. The ladder may have to be carried for some distance from the carpark to the store. And it may need to be carried up and down stairs. (See Exhibit 4 and the photograph of Ms Hogan above the caption "Entering or Exiting Stores via Public Thoroughfare").
There is simply no evidence about whether commercially Counterpoint could see to the provision of this equipment by the supermarket operators through negotiation.
The provision by Counterpoint of an offsider to accompany every merchandiser to every job, whether or not two merchandisers were called for to complete the planogram in a timely fashion, would add significantly to Counterpoint's wages bill. There is simply no evidence about how much this would cost and the extent to which it may impinge upon Counterpoint's financial viability.
For the reasons given above, there is a real question in any event about the effectiveness of each of the suggested precautions in obviating the risk of injury.
As I have said, even in the case of an employer, all the law requires is the exercise of reasonable care. An employer may be justified in not taking "steps to eliminate a real risk if it is small and the circumstances are such, that a reasonable man, careful of the safety of his neighbour would think it right to neglect it": The Wagon Mound (No. 2) [1967] 1 AC 617 at p 642. Moreover, as in other cases, compliance with common practice, as referred to by McHugh J in Dovuro at [34], in employment cases, remains "powerful, but not decisive, evidence that the defendant did not act negligently". The evidence, referred to above, establishes to my satisfaction that Counterpoint's system of work and the equipment provided comply with the common practice in merchandising throughout Australia. There is no persuasive reason arising from the evidence led before me demonstrating that the common practice falls short of what reasonable care required in this case: General Cleaning Contractors Ltd v Christmas [1953] AC 180 at 192; Foufoulas v FG Strang Pty Ltd (1970) 123 CLR 168 at 181 and 183.
In my judgment, Counterpoint was not negligent. The plaintiff was injured in an accident which resulted from the failure of her and the male customer to see each other. Assuming I am otherwise wrong, I not satisfied that the suggested precautions would have obviated the risk of injury which materialised in this case.

Contributory negligence

There is difficulty in attempting to assess contributory negligence in the abstract when I have found that neither Woolworths nor Counterpoint were negligent. I bear in mind that from Woolworths point of view, the provisions of s 5R CLA apply and from Counterpoint's the general law is applicable. I have found that Ms Vincent failed to look before stepping down from the step and failed to otherwise perceive the presence of the male customer with the trolley who was clearly there to be seen or otherwise perceived. As I have pointed out an occupier, perhaps to a lesser extent, is obliged by way of foresight to have regard to Taylor J's "variable factor": Nagle at 431.
Woolworths and Counterpoint carry the onus of proof on this issue. I am not satisfied that Miss Vincent's failure to see or otherwise perceive the close proximity of a customer with a trolley was due to other than inattention, inadvertence, or perhaps mere carelessness. I am not satisfied on the balance of probabilities that it amounts to "positive negligence" on her part, whether one analyses her conduct by reference to s 5B CLA or the general law, I think the answer is the same. For reasons I have already given what happened is an "accident", for which no-one is legally responsible.
I am not persuaded to make a contingent finding of contributory negligence.

Conclusions as to liability

It follows from my reasons that there must be judgment in favour of each defendant and that the respective cross-claims, including the claim for indemnity under s 151Z(1)(d) brought by Counterpoint against Woolworths, must be dismissed and I will make those orders in due course.
Had it been necessary to apportion liability for the purposes of contribution between Woolworths and Counterpoint, I would have assessed Woolworths' responsibility for the consequences of the accident at 65 per cent, and Counterpoint's as to 35 per cent. The principal difference between them, it seems to me, is Woolworths' greater capacity to control the activities occurring in its supermarket and its assumption of responsibility for the provision of equipment to Ms Vincent for the performance of her merchandising duties.

Contingent findings as to damages

Lest there be an appeal I am required to assess the damages I would have awarded, had Ms Vincent been successful.
The most significant issue affecting the assessment of damages is Ms Vincent's pre-existing left knee and back injuries. I accept that there is a substantial divergence in opinion between the medical experts as to the significance and degree of injury sustained by Ms Vincent on 27 November 2008. I also accept that this largely stems from the difference of opinion between the experts as to the advancement of her pre-existing pathology, particularly in relation to her knee. Ms Vincent readily accepts that she has suffered prior injuries to both her back and left knee. The first injury to her back occurred during her employment at Qantas after her seat broke when she was driving home from work. She said she made a full recovery and aside from back pain during pregnancy for which she underwent a lumbar spinal block she did not have any further problems. Her left knee was injured in 1988 whilst playing basketball for her then employer Ansett Air Freight. She said she had an arthroscopy and was off work for a few days but after the recovery process she went back to "playing basketball, skied, tennis, surf, everything" (30.5T). Despite this evidence, which I accept, there is disagreement between the medical experts: the significant pathology casing the severe symptoms in left knee was probably entirely, or at least mainly, pre-existing. Essentially that pathology is post-traumatic osteoarthritis in each compartment of the knee. This is a consequence of the complete rupture of her anterior cruciate ligament suffered as a result of the 1988 injury. The pathology affecting Ms Vincent's low back is also pre-existing degeneration.
Dr Patrick, a surgeon qualified to give evidence on behalf of Ms Vincent, expressed the opinion that the fall on 27th November 2007 was a significant workplace accident. In his report dated 1 February 2012 he states that she "sustained a significant aggravation to her left knee rendering it very symptomatic with aggravation of chondral damage and a significant aggravation…of her pre-existing post traumatic osteoarthritic change, together with likely lateral meniscal tear with some aggravation to some pre-existing degenerative meniscus" (Exhibit G6). He also said that she sustained a significant aggravation to her lumbar spine. He believes her injury at Woolworths is the main contributing factor to her knee and back injuries and she will continue to have ongoing permanent impairment and disabilities in both. Dr Sun and Dr Millions have a similar view, citing the workplace injury as substantially aggravating the pre-existing knee injury. Dr Millions also makes reference to degenerate changes in her back prior to the injury which could have been aggravated by the fall.
Dr Patrick was closely cross-examined on the history he recorded of Ms Vincent having fallen from a height onto both knees. This is erroneous and inconsistent with the finding of injury I have made. However I do not think the differences are material in this case. Dr Patrick regarded a twisting injury leading to a fall as capable of aggravating the condition of Ms Vincent's knee and back. It could also cause the new pathology which he believed was caused by the accident. Notwithstanding the somewhat delayed onset of knee pain after the fall the general consensus of medical opinion on all sides of the record was that they were related to the accident.
Dr Stubbs, an orthopaedic surgeon qualified on behalf of Woolworths, whilst accepting a degree of aggravation from the fall, expressed the opinion that the present condition of Ms Vincent's knee is due to her underlying condition of osteoarthritis and that the injury at Woolworths did not change the fate of her knee. Similarly, Dr Davidson, the treating orthopaedic surgeon who performed an arthroscopy on Ms Vincent's knee as part of her treatment for the injury at Woolworths, observed that the degenerative changes in the knee were not related to the Woolworths injury but were longstanding and likely to be progressive in time. Both Dr Jones and Dr Smith, for the defendant, have a similar view that while some aggravation to her knee may have occurred due to the injury on 27th November 2008, it did not cause her degenerative arthritis and any aggravation would have resolved within 6 months.
Dr Stubbs opinion was largely based upon the view he took having regard to a number of longitudinal studies of the development of compartmental osteo-arthritis of the knee following trauma. One of the findings, as I understand it, upon which he relied, was that persons suffering a complete rupture of the anterior-cruciate ligament which is not treated by reconstructive surgery have a high incidence of advanced osteo-arthritis requiring a total knee replacement within 20 years. Dr Stubbs said the rate was 50 per cent within that timeframe. As time went on the number not requiring total knee replacement reduced to 7 per cent. This epidemiology supported Dr Stubbs opinion, I will express it this way, that there was a very high likelihood that Ms Vincent would require total knee replacement in any event. On his view of it, there was a 50 per cent chance that she would require total knee replacement in any event by about 2008 and a 90 per cent chance that she would need it at some time.
As against this, I accept the evidence that Ms Vincent was symptom free until 27th November 2008. Obviously, however, there was an ongoing degenerative process of which she was unaware. But that she was symptom free, I think puts her in the 50 per cent who did not require total knee replacement after 20 years, although she was very likely to require it at some indeterminate future time.
I am satisfied that the injury of 27th November 2008 has rendered her condition symptomatic and accelerated the need for total knee replacement so that it will be required within the next 5 years.

Seltsam v Ghaleb

Before going on to deal with various heads of damages, it is important to say something about Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; 3DDCR 1. At [101] - [103] Ipp JA with the agreement of Mason P and Basten JA expressed the following principle of general application in personal injuries cases: Walker J made no reference to Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 when discussing the onus of proof that a defendant has to discharge in circumstances of the kind the subject of Watts v Rake and Purkess v Crittenden . In Malec Deane, Gaudron and McHugh JJ said at 643: "[I]n respect of events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9 per cent - or very low - 0.1 per cent. But unless the chance is so low as to be regarded as speculative - say less than 1 per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing the damages." Brennan and Dawson JJ stated at 639-640: "The judgment of the majority in the Full Court seems to us to overlook the difference between the fact that the [plaintiff] had not been working for some time before the trial and an evaluation of the [plaintiff's] earning capacity which was destroyed in consequence of the [defendant's] negligence. The fact that the [plaintiff] did not work is a matter of history, and facts of that kind are ascertained for the purposes of civil litigation on the balance of probabilities: if the court attains the required degree of satisfaction as to the occurrence of an historical fact, that fact is accepted as having occurred. By contrast, earning capacity can be assessed only upon the hypothesis that the [plaintiff] had not been tortiously injured: what would he have been able to earn if he had not been tortiously injured? To answer that question, the court must speculate to some extent. As the hypothesis is false - for the [plaintiff] has been injured - the ascertainment of earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history. Hypothetical situations of the past are analogous to future possibilities: in one case the court must form an estimate of the likelihood that the hypothetical situation would have occurred, in the other the court must form an estimate of the likelihood that the possibility will occur. Both are to be distinguished from events which are alleged to have actually occurred in the past." Their Honours said at 640: "In assessing the [plaintiff's] earning capacity in the present case, what had to be evaluated was the prospect that the deteriorating back condition would have precluded him from engaging in gainful employment had he not contracted brucellosis. An evaluation of that prospect had to be made. To make a finding on the balance of probabilities as though the prospect were something that had occurred in the past was to misconceive the process of evaluation." Therefore, according to Malec: (a) In the assessment of damages, the law takes account of hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring. (b) The court must form an estimate of the likelihood that the alleged hypothetical past situation would have occurred. (c) The court must form an estimate of the likelihood of the possibility of alleged future events occurring. (d) These matters require an evaluation of possibilities and are to be distinguished from events that are alleged to have actually occurred in the past, which must be proved on a balance of probabilities.
The principle is capable of applying to all heads of damages. At [105] - [106] his Honour said: Where a defendant alleges that the plaintiff suffered from a pre-existing condition, the evidential onus as explained in Watts v Rake and Purkess v Crittenden remains on the defendant and must be discharged by it. Nevertheless, to the extent that the issues involve hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring, the exercise of "disentanglement" discussed in those cases is more easily achieved. That is because the court is required to evaluate possibilities in these situations - not proof on a balance of probabilities. Without intending to give an exhaustive list of possibilities, it may be that, had the defendant's negligent act not occurred, a pre-existing condition might have given rise to the possibility that the plaintiff's enjoyment of life and ability to work would have been reduced and to a susceptibility to further injury; in addition, other causes entirely unrelated to the defendant's negligent act might have contributed to the plaintiff's ultimate condition.
This principle obviously has application to the present case given the significant pre-injury history. However, it is not necessary that the discount in damages called for by application of the principle will fall evenly across all heads of damage. The pre-existing conditions and their likely progress may have greater significance for some heads of damage than others. Moreover, Ms Vincent's pre-existing condition is not the only factor which may require an adjustment to take account of hypothetical probabilities in the case. As I will seek to explain as I proceed through each head of damage, there are in fact some other imponderables that need to be taken into account by application of the Malec principle. For this reason also, it may be necessary to make differing discounts for the different heads of damage.

Non-Economic Loss

Ms Vincent describes the pain in her knee as "constant with intervals of stabbing" (55.40T). She says that she has pain even when she is doing nothing, has falls on occasions due to her knee giving way, has nightmares about stairs and rates the pain whilst she was sitting giving evidence as 7.5 - 8 on a scale of 1 (being a nuisance) to 10 (being excruciating) (56.20T). She also said that she has pain in her back 24 hours a day and that "I cannot sleep at night, I have not slept right through since the accident" (57.40T). I accept that Ms Vincent is in constant pain as a result of the condition of her knee and back, and that it affects her activities of daily life significantly. However there may have been a degree of introspection leading to overstatement. Her injury interferes with her enjoyment of life. She is no longer able to enjoy the leisure and sporting pursuits she followed previously, such as horse riding. She gave evidence that she has ridden a couple of times since the accident. Her most recent attempt was four to five months before the hearing. When asked why she even tried to ride with her current problems she said "that's the only thing I have left. I can't run, I can't ski, I can't surf. I can't play basketball or tennis" (59.20T). I accept the main thrust of this evidence.
I accept that it will be necessary for her to undergo a total knee replacement if she is to adequately address her condition, and that this is likely to be needed within the next 5 years or so. Dr Glase recommended this in October 2011 (Exhibit H), but described the procedure as "elective", its timing to be dictated by the level of Ms Vincent's symptoms. There was evidence from the plaintiff about an expected difficulty with possible thrombosis as a reason for delay, but this was not mentioned by Dr Glase. The evidence is too indefinite to act on. I accept that there is a good chance of a favourable outcome if she has the surgery. This would greatly reduce, if not eradicate, her pain, and enable her to do more of the things she loves. This would go a long way to improving her quality and enjoyment of life. I note however that she is likely to continue to suffer back pain, which is the lesser problem.
Ms Vincent is a single, unemployed mother with a young child. She is currently 50 soon to be 51 years of age. According to the table of medium life expectancy for Australia, she has a life expectancy of 88 years. She has suffered a number of years with her current injuries and it is not quite certain, although it does appear likely, that she will undergo a knee replacement. The plaintiff submits that the severity of her economic loss was $250,000.00. Woolworths submit that a combination of her progressive degenerative disorder and her own life choices means that a substantial discount should be applied. Rather than expressly discounting the assessment I would otherwise have made I will keep firmly in mind the real chance that the plaintiff would have suffered the same consequences regardless of the 2007 injury because of her pre-existing conditions when evaluating the severity of case compared to a most extreme case of non-economic loss. I find the severity of Ms Vincent's case of non-economic loss is 40 per cent of a most extreme case. This entitles her to damages in the sum of $229,000.

Past economic loss

At the time of her injury, Ms Vincent was employed as a part time merchandiser with both Counterpoint and Power Force Total Merchandising. She was also studying for an arts degree through Wollongong University. She completed her degree at the end of 2009 and in 2010 commenced a Diploma of Education to become a primary school teacher. She did not finish this diploma, but discontinued her studies after difficulties with "prac-teaching" because of her injuries.
I accept that due to her injuries Ms Vincent has been unfit to return to work as a teacher. This does seem to have disputed by the medical witnesses. She does however have a large number of transferrable skills and qualifications that relate to largely sedentary and clerical work. The opinions of the medical experts suggest that she would have been capable of handling such work. Before taking up her degree Ms Vincent had a good employment record in credit controller and other junior management or clerical positions. She was regard as a good worker by Counterpoint (156.30T).
The condition of Ms Vincent's knee is such that she experiences pain even at rest, and when effort or strain is imposed on the knee. This is probably due to the arthritic process. This means that sedentary work will be difficult when her pain is bad, making it hard, perhaps, to hold down a job.
Notwithstanding these considerations, in my view, taking into account her injuries and disabilities, Ms Vincent clearly has a residual earning capacity. So much is conceded. It is not clear from the evidence what specific work she has tried to find, as opposed to undertaking courses and further study. I acknowledge that she gave evidence of working briefly as a swimming teacher at Bateman's Bay pool in 2011 and looking for work in 2011 through Wesley Uniting Employment. I had the impression she may have been going through the motions. In 2012 she commenced and completed her Graduate Diploma of Education to become a high school teacher, and later in 2014, at the time of trial, she was studying a course in beauty and nails at TAFE.
She believes she could teach part-time for restricted hours, for two days per week. I accept Ms Vincent's knee is painful but I think this self-assessment understates her capacity somewhat.
Allowing for the difficulties of finding work in a country area, had she looked for some suitable work after the delayed completion of her Diploma of Education at the end of 2012 there is a good chance, given her previous experience and qualifications she would have found suitable work of some type.
I propose to reduce by 15 per cent her damages for past economic loss to take into account both her pre-existing back and knee injuries and the chance that she could have found employment during this time.
In determining Ms Vincent's past economic loss I have adopted the evidence of teachers' earnings provided by Mr Sidhwa in his report (Exhibit J) and the breakdown of those figures into net amounts Mr Mooney SC calculated in his schedule of damages. I note that neither Mr Sidhwa's report nor Mr Mooney's schedule contain a net figure for this year, 2015. The net figure I have adopted for this year is my estimate, given the gross figure provided in the report. Calendar Year Earnings but for injury (gross) Net amount per week 2011 $56,829.00 $875 2012 $59,752.00 $916 2013 $65,857.00 $1,000 2014 $68,935.00 $1,035 2015 $75,118.00 $1,108.70

From 27 November 2008 - 31 December 2010 Ms Vincent would have continued in her then current part time work earning $320 per week. This is a total of 109 weeks, producing a figure of $34,880. From 1 January 2011 until the date of judgment she would have worked as a primary school teacher earning a total of $231,032.30. This gives a total of $265,912.30 and less 15 per cent equals $226,025.50.

Fox v Wood

I have not been provided with a current figure for this head of damage.

Loss of superannuation entitlements

I will adopt the conventional figure of 11 per cent of the allowance for past economic loss - that is $24,862.80.

Future economic loss

The main issue when determining Ms Vincent's entitlement under s 13 Civil Liability Act is her pre-existing left knee injury. While there is substantial divergence in opinion between the medical experts as to the degree of injury sustained by Ms Vincent on 27th November, it appears to me that majority of the doctor's accept that the accident made her knee condition symptomatic. Dr Patrick's opinion is that the accident accelerated her condition and the need for a knee replacement. Dr Sun is of a similar view. Dr Stubbs on the other hand does not attribute any further injury from the workplace accident and says Ms Vincent would have needed a knee replacement well within her working life in any event. For the reasons given above I accept that the 2008 injury materially aggravated Ms Vincent's pre-existing conditions but there is a good chance that she would have suffered the same difficulties and disabilities sometime after the accident, probably before normal retirement age but it is impossible to be precise. This finding, as I have said engages the principles discussed in Ghaleb.
Ms Vincent has not yet had a total knee replacement. In my judgment, little is going to change until she does. Until then, I accept that she will not be able to return to work as a teacher. It is quite clear from the medical evidence however that in her current condition she would be capable of engaging in work of a clerical nature which does not put too much stress or strain on her knee. Since the accident, save for a brief stint as a swimming teacher at Bateman's Bay pool Ms Vincent has not been able to secure any meaningful employment. As I have already said this may in part be due to her failure to make a greater effort to find work, accepting employment opportunities may be more limited in regional Australia.
Ms Vincent has an arts degree and a diploma of education. She has previously worked in junior management and retail. She has completed an MYOB refresher course and has obtained various beauty qualifications from TAFE, including as a hairdresser. She is obviously resourceful. I have already found that she ought to have re-entered the workforce by the end of 2012, at least in part-time semi-sedentary work. Mr Mooney concedes that Ms Vincent has a residual ability to earn about $400 per week in work of this type. The concession is probably correct.
If Ms Vincent has a total knee replacement within the next five or so years it is likely to increase her employability because of reduction in pain leading to greater relative mobility. Dr Stubbs states that "people with a total knee replacement…re-join the workforce in a full time capacity, often with physically demanding jobs. A successful outcome from a knee replacement would not prevent Ms Vincent returning to the workforce in any of the duties previously carried out" (Exhibit 6E, p 4). He is of the view that she has the physical capacity for work as a high school teacher noting there are a number of high school teachers that have knee replacements. Dr Patrick is not so optimistic, and takes a more conservative approach opining that she could expect an increase in general activities, subject of course to her back symptoms.
In my judgment, I think the appropriate approach in determining her future economic loss is to strike a balance between the different medical opinions given. After all, I am dealing with a purely hypothetical question. Both Dr Patrick and Dr Stubbs appear to generally agree on her current fitness for work and the likely improvement once she has a total knee replacement. As I have said above, Dr Stubbs is more optimistic about Ms Vincent returning to workforce and I agree that if the replacement is successful her earning capacity will increase for the reason I have given.
I acknowledge Mr Mooney's submission that a discount of 30% is appropriate to take account of these imponderables and the usual vicissitudes of life. However given my findings I propose to discount her future economic loss by a factor of 50 per cent. This takes account of the conventional 15 per cent discount for the vicissitudes of life; the effect of her past failure to mitigate on future losses; the effects of her pre-existing conditions; the probably that they may have overtaken her anyway; and the chance that she may be able to resume her teaching career or some other form of more remunerative employment once she has a total knee replacement.
I accept that Ms Vincent's most likely future circumstances but for the injury is that she would have worked fulltime as a primary school teacher earning $1035 net per week. Taking account of her residual earning capacity of $400 per week this figure comes down to $635. But for the injury I find that she would have continued to work full time until she was eligible for an aged pension at 67, a period of 16 years. The 5 per cent multiplier is 579.5. This figure is $367,982.50.
I also allow for Ms Vincent's expected increase in earnings as a teacher for a period of 10 years. Having regard to the salaries paid to teachers in Mr Sidhwa's report (Exhibit J), I find her earnings would have increased to $1,350 per week within 5 years. Taking the difference between her current and expected earnings this gives an additional amount of $315. The multiplier is 412.9; the total is $130,063.50. I propose to defer this for 5 years to take account of the acceleration of the benefit. The deferred multiplier is 0.784, giving a total of $101,969.80. I therefore assess $469,952.30 as Ms Vincent's undiscounted future economic loss which I will reduce by 50 per cent. I allow $234,976.15.

Future employer contribution to super

I will adopt the conventional figure of 12.95 per cent of the allowance for future economic loss - that is $30,429.80.

Past out of pocket expenses

Ms Vincent claims a total of $47,345.60 for past out of pocket expenses. These have paid by Counterpoint's workers compensation insurer in the main. This amount includes the Medicare charge. I allow this amount.

Future out of pocket expenses

Mr Mooney SC submits that allowance should be made to Ms Vincent for her ongoing treatment including analgesia, anti-inflammatory medication, physical therapy and provision of a pool pass. He estimates a sum of $67 per week with a total allowance of $60,434. I accept this figure.
I also accept that Ms Vincent will require a total knee replacement within the next 5 or so years. I propose to allow $28,000 for this surgery. I propose to defer this for 2 years. The 5 per cent multiplier is 0.907. The total is $25,396. The total for future out of pocket expenses is $85,830. I propose to deduct 30 per cent from this figure on the basis of her pre-existing injuries and the chance that such medical expenses would have been required in any event had she not sustained the injury at Woolworths. I therefore allow $60,081.

Past care

While Ms Vincent does not claim damages for past gratuitous care, I acknowledge the view of occupational therapist, Ms Morris who records that following the accident Ms Vincent received care and support from her mother in relation to general household duties (such as cooking and cleaning) and supervision of her young daughter. She also says that currently Ms Vincent requires the provision of 5.5 hours of gratuitous care per week which is primarily provided by her daughter. The level of care provided does not meet the s 15 CLA threshold, however as I have already said Ms Vincent does make a claim under this head of damage.

Future care

I accept the evidence given by Ms Vincent that she does have difficulty in completing her domestic chores. Ms Morris says in her report that prior to the accident Ms Vincent was independent in all aspects of home, garden and pool maintenance. She also says that Ms Vincent now takes longer than usual to complete these tasks. She is only able to vacuum once a month, mop the floors one room at a time, clean the windows every few weeks and relies on paid help or friends to complete home maintenance tasks. She is of the view that Ms Vincent will require paid gardening, handyman services and commercial assistance with heavy household cleaning and heavy laundry. She recommends commercial care of 7.75 hours per week. Both Dr Patrick and Dr Sun are of a similar view however they estimate Ms Vincent's need at 4 hours pw for paid domestic assistance. Dr Stubbs and Dr Jones on the other hand do not think that Ms Vincent requires ongoing domestic care, particularly if she is to have a total knee replacement.
Ms Morris is an occupational therapist who had the benefit of assessing Ms Vincent in her own home. She produced a lengthy and detailed report on Ms Vincent's current and past needs and capabilities. While both Dr Stubbs and Dr Jones are of the view that no domestic assistance is required, I propose to adopt the figure provided by Ms Morris, that is 7.75 hours per week. This is more than the estimates given by Dr Patrick and Dr Sun, but I think it appropriate given that the detailed assessment of needs of this type is an area where occupational therapists like Ms Morris may be taken to have greater expertise than the doctors. I therefore propose to allow the amount put forward by Mr Mooney of $269,129. I will however reduce this amount by 66 per cent to take account of both her pre-existing conditions, the increasing chance as time goes on that they would have overtaken her anyway, and the likelihood that a successful knee replacement may significantly reduce the immediate need for continuing domestic assistance. I allow the sum of $91,503.86 for future care.

Interest

I do not have up to date workers compensation figures to enable me to calculate interest on past economic loss.

Work Injury damages

These damages can be calculated from the allowances I have made for CLA damages. Those latter damages will need to be reduced by operation of s151Z(2)(c) of the 1987 Act. Given my findings on liability no point is served by making that calculation at this time.
My orders are:

In matter No. 2010/401259 1. Judgment for the defendant; 2. The plaintiff to pay the defendant's costs on the ordinary basis forthwith after they have been agreed or assessed; 3. Second Cross-Claim dismissed with no order as to costs.

In matter No. 2013/190244 1. Judgment for the defendant; 2. The plaintiff to pay the defendant's costs on the ordinary basis, if the defendant is otherwise entitled under the provisions of the Workers' Compensation Regulation 2010 (NSW); 3. First Cross-Claim dismissed with no order as to costs.

Amendments 17 April 2015 - Orders on last page of the judgment renumbered 17 April 2015 - Hearing dates on front cover have been amended DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 April 2015

Workers' Compensation Regulation 2010(NSW)

Occupational Health and Safety Act 2000(NSW)

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