Wakeling v Coles Group Limited [2011] NSWDC 20 | Case summary

Wakeling v Coles Group Limited [2011] NSWDC 20 | Case summary | Zoe

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Evidence overview 6In addition to the plaintiff's own oral evidence, factual evidence was also given by his mother, Mrs Cindy King and his stepfather, Mr Vincent King, concerning the events surrounding the plaintiff's fall, and aspects of the plaintiffs life and circumstances. Mr and Mrs King had both been present at the time of the plaintiff's fall at the defendant's premises. The plaintiff also called evidence from Mrs Trudie Warner, an occupational therapist, concerning quantification of the claim for damages for domestic assistance. She was the only professional witness called in the case. The plaintiff tendered an expert liability report on safety issues from Mr Robert Fogg, an engineer and ergonomist. His evidence was useful and probative except in relation to the footwear issue, in respect of which he had been given an incorrect assumption. Meteorological evidence was also tendered to confirm that on the day in question, at the nearest rainfall observation stations to Mt Druitt, namely, at St Clair, Willmot, Horsley Park and Seven Hills, recorded rainfall before 9.00am was, respectively, 5mm, 16mm, 3.8mm and 9mm. Those stations were respectively, 5.4km, 5.6km, 9.5km, and 9.6km in distance from the defendant's supermarket at Mt Druitt. 7In the defendant's case, evidence was given by Ms Catherine Sultana, a general merchandise manager who was on duty at the store when the plaintiff was injured. As there had been a lot of rain earlier on the day in question, amongst her other duties, she had been on mop and bucket duties that day. This meant that from time to time she attended to mopping the wet floor area of the supermarket near the trolley bay area, which was near the entrance to the store. Her evidence was directed to what she did in relation to attempts to keep the floor dry before the incident when the plaintiff fell. An understanding of her evidence was assisted by CCTV footage of the area which captured some of the events surrounding the plaintiff's injury : Exhibit "B". 8The defendant also called oral evidence from Ms Victoria Annetts, a store support manager employed by the defendant. Her evidence was directed to the events that immediately followed the plaintiff's fall, when she came to his assistance. She gave evidence describing her observations of the wet state of the plaintiff's footwear, namely his thongs, at the time she attended. 9The defendant also called oral evidence from Mr Anastasios Ikosipentarhos, who was the store manager on the day of the plaintiff's fall. His evidence was directed to his observations of the scene after the plaintiff's fall, as well as concerning whether there was a system that was in place at the time with regard to the defendant's approach to customer safety and related wet floor issues. 10The parties tendered bundles of medical and allied reports. These were of modest proportions. No medical practitioners were called to give oral evidence. I shall refer to those reports in greater detail where appropriate when outlining my findings on the plaintiff's injuries, the treatment he obtained, his remaining disabilities, and some damages issues.

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Plaintiff's background 14The plaintiff was born in 1987. He was aged 22 years when he was injured. He was aged 23 years at the trial. He was not in employment at the time of the hearing. He had been in receipt of a Centrelink Newstart allowance for the preceding 3 years. He came from a troubled background. He had significant difficulties at school. He attended primary school, but in the last 8 months of that schooling, he was under special teacher supervision because of anti-social behavioural issues, having caused damage to property. He did not complete the primary school curriculum. He attended high school, but after 1 week he was asked to leave when he was aged 13 years. He is not proficient in either reading or writing. 15After leaving school he found himself in conflict with his mother who was urging him to return to his schooling. He refused, and after about a further 3 months of absence from school, he left home to stay at the home of a friend. He ended up having some legal difficulties, and spent about a month or so in a refuge at Liverpool before becoming homeless and sleeping in parks. He developed problems concerning the use of drugs and alcohol. He eventually sought assistance from police at Parramatta, and accommodation was found for him at the Salvation Army Oasis in Surry Hills. He resided at that shelter between the ages of 14 and 18 years and benefited from the structure that environment provided for him. 16Whilst at Surry Hills, the Salvation Army assisted him in acquiring some skills including cleaning, lawnmowing and gardening. He worked with a gardening crew for about 9 months, and he then asked to be transferred to work with a cleaning crew. He received about $950 per fortnight for what was sheltered employment when he worked 5 days per week with the cleaning crew. 17He had also worked for a period of about 3 months in his brother-in-law's cleaning business, but this proved unworkable for the plaintiff because he said he thought he was being asked to work excessively long hours. 18At the time of his 18 th birthday, 4 years ago, he decided to abandon the use of drugs and to cease drinking because he had been drinking to excess for some time and had come to realise this was detrimental for him. He removed himself from the use of drugs and alcohol by moving away from Sydney for about 2 years and going " cold turkey " as he had described it. In that time he involved himself in helping a local football team. He has clearly made considerable efforts at straightening out his life. 19With the assistance of Centrelink, before his injury, the plaintiff had completed a security course. He was expecting to receive a licence to work in that area. He had difficulties with the course because of his difficulties with reading and writing, but he eventually completed the course in 2 months. He moved to temporary lodgings nearer the city, as was arranged for him by the Salvation Army. He said he obtained work as a security guard working 18 hour shifts in a shopping centre. He persevered with that work for about 3 months. He ceased that work when his grandmother died. He was not permitted time off work by his employer at that time and he did not return to that work, and allowed his licence to lapse. 20Since then, he has sought to requalify by doing another 1 month security course as licensing arrangements had changed in the interim period. After moving about between various accommodation locations, just before his 21 st birthday, he and his family had a rapprochement, and he was welcomed back to live with his mother, stepfather and siblings. In the meantime he has also sought to improve his reading and writing skills. He has obtained a provisional security licence which enables him to do part time work at sporting venues. He has been doing that casual work on some, but not all weekends. He does it whenever it is available near his home. 21Just before his injury, he worked for a week doing security work at a sporting venue, working 12 hour days for 5 days. He said he had no difficulty doing that work, but he decided to look to other areas of work as a result of some interpersonal difficulties that had developed between himself and his colleagues in connection with that work. Those difficulties arose because some of the people he was working with had been involved in the former drug culture he had forsaken. He was not in employment at the time of his injury. 22Since the plaintiff makes no claim for damages for either past or future loss of earning capacity, it is not relevant to further review the plaintiff's work history, or his future work intentions, other than to observe that his pre-injury circumstances would tend to almost inevitably operate so as to limit his employment prospects on the open labour market. 23Before his injury, the plaintiff derived a great deal of enjoyment and a feeling of adventure from taking very long walks for hours at a time around various areas of Sydney and surrounds. This past-time assisted him to exercise, it calmed him and enabled him to take his mind off his problems in a constructive way. The plaintiff's injury had a deleterious effect on his ability to devote himself to that past-time.

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Circumstances of injury to the plaintiff 25The plaintiff entered the defendant's Mt Druitt supermarket at about 9.48am on Thursday 22 May 2008. He was accompanied by his parents. They had walked some distance from the open air portion of the carpark, through the shopping centre, to the area known as Coles supermarket. 26Shortly after entering the supermarket, the plaintiff turned to his left in order to walk towards some rows of shopping trolleys that were interlocked or stacked in rows in a dedicated trolley bay area. He noticed some rows of such trolleys, stacked or jammed inside one another, in the trolley bay. He saw no signs in the area. He started to walk towards those trolleys, and as he did so, he slipped and fell onto the wet vinyl floor, which he described as having a dirty appearance when he noticed it. He stated that in the course of these events he was aware of having taken a step when one of his feet slipped from under him, causing him to slip forward, and then backwards. In these events, he was aware of having then landed on his left side. He stated that he then observed a few puddles of water on the floor that were the approximate size of a dinner plate, if not bigger. 27None of the other witnesses who were called actually saw the plaintiff's fall. 28Images of the events surrounding the plaintiff's injury were captured on CCTV footage taken by security observation cameras located in the supermarket : Exhibit "B". Counsel for the plaintiff, Mr Quinlivan, has helpfully prepared a descriptive table of relevant times and described events that occurred at the scene of the plaintiff's fall between 09.21.59 to 10.16.13 on 22 May 2009 as shown on the CCTV footage, I have drawn upon his analysis to incorporate the following matters into my findings of fact: Timed Sequence Time Observed factual content Number

         9.22.50     Ms Sultana arrived at the trolley bay with her mop and bucket. She squeezed out the mop and mopped in the trolley bay area, mainly out of view of the camera. While she was mopping 3 customers entered the trolley bay area, got trolleys and wheeled them out. The trolleys appeared to come from positions relatively close to the entrance to the trolley bay area.

         9.26.05     Ms Sultana left the trolley bay area, with her mop and bucket.

         9.29.03     After the 3 customers had entered the trolley bay area and had obtained trolleys, Ms Sultana returned with a "witch's hat" which she placed somewhere near the front left of the trolley bay area, but out of view. She left within seconds of arriving.

         9.30.18 -   9 or 10 customers entered the trolley bay area and obtained trolleys. Some of these customers seemed to pass very close to where the "witch's hat" had been positioned by Ms Sultana. The majority of these customers appeared to be obtaining trolleys from a place relatively close to the front of the trolley bay area.
         9.35.00

         9.35.00     Ms Sultana returned with two trolleys that she pushed into the trolley bay area. She appeared to leave within seconds of arriving.

         9.36.00     A young man wheeled two trolleys into the trolley bay area.

         9.37.48     Ms Sultana returned with her mop and bucket. She appeared to commence mopping in the trolley bay area without first squeezing out the mop.

         9.38.45     Ms Sultana left the trolley bay area. She appeared to do so carefully and hurriedly. She left without the mop and bucket.

         9.39.42 -   About 12 customers entered the trolley bay area and obtained trolleys. It appears that many of these customers had to go much deeper into the trolley bay area in order to obtain their trolleys.
         9.48.42

        9.48.42     The plaintiff arrived at the defendant's premises. As soon as he neared the trolley bay area he turned left into that area, travelling close to the left wall of the area. On entering the trolley bay area he looked forward, momentarily, before he appeared to turn his head towards his right shoulder and to then point to the supermarket area as he walked forward. He was apparently communicating something to his family, who were behind him. The plaintiff quickly passed out of the range of view of the CCTV camera. It was in that time frame that the plaintiff fell and sustained his injury.

        9.48.53     The plaintiff's stepfather turned his attention towards the plaintiff, or towards where the plaintiff must then have been upon the floor and calling for his stepfather. Thereafter, with the plaintiff's mother leading the way, the plaintiff's parents entered the trolley bay area and go to the plaintiff.

        9.49.20     The plaintiff's stepfather exited the trolley bay area to report the incident.

        9.49.47     Several Coles staff entered the trolley bay area.

        9.50.10     Mr Ikosipentarhos arrived at the trolley bay area.

        9.50. 29    A man with a turban appeared on the scene. He appeared to be an employee of the defendant.

        9.51.00     The plaintiff's stepfather is seen with a mobile phone which, it appeared, he had used, or was about to use, to take a photograph.

        9.51.30     Trolleys were pushed up to the right side of the trolley bay area to make them available for customers. The man with the turban attended to the arrangement of such trolleys.

        9.52.12     The plaintiff's stepfather is shown taking a photograph from a distance.

        9.52.57     There is a scene showing stacked trolleys. It was argued that this showed an example of how trolleys may require a degree of jerking and force, in order to separate or disengage one trolley from another.

        9.55.48     Another example is evident of the process of trolley disengagement from the stack.

        9.59.00     Another example is evident of the process of trolley disengagement from the stack. The plaintiff argued this was an excellent example of the process.

        9.56.45     Ms Annetts arrived at the scene, apparently with paperwork in hand.

        9.56.46     Two Coles staff arrived at the scene with what appeared to be four "Danger" signs.

        9.58.43     The stock hand employed by the defendant is seen to arrive at the scene with a chair for the plaintiff.

        10.01.16    The stock hand is seen to be mopping the trolley bay area.

        10.05.55    The stock hand is seen undertaking further mopping in the trolley bay area. He mopped the floor under where the trolleys had been pushed up for customers.

        10.07.55    Ms Sultana arrived at the scene with another "witch's hat".

        10.08.20    Ms Sultana repositioned two "witch's hats" at the front of the trolley bay area. She then left, carrying other signage.

        10.09.45    The plaintiff and his family are seen to exit the defendant's premises.

        10.13.00 -  During the final approximately 3 minutes of the footage there is shown the means of providing trolleys for customers without them having to walk into the trolley bay area.
        10.16.13

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Treatment 29Within the bundles that comprised the medical evidence, there were no reports tendered from any practitioners who had seen the plaintiff in the initial post-injury period, although the evidence disclosed that at least one such consultation had occurred with the family doctor, Dr Figol. This leads me to infer that some relevant records probably would have been amenable to subpoena by either party. The absence of such evidence was not explained. Other than the summaries in the histories in the reports tendered, there was no evidence tendered concerning the detail of the plaintiff's pre-injury medical history. 30It appears from the bundle of tendered medical reports, that the plaintiff attended his local medical practitioner, Dr Figol, on the same day that he was injured, having been taken there by his family. The best evidence available as to the early assessment and treatment of the plaintiff's post-injury condition comes from the report of Professor David Champion, which is dated 28 November 2009, and which is in the following terms: "... Dr Figol prescribed painkillers and arranged radiographs of right ankle, knee, elbow and shoulder. His back wasn't hurting at that time. He indicated that the right ankle pain seemed mainly the result of a direct blow to the medial malleolus. I asked how it happened that he could have fallen forward and to the right and have sustained a direct blow to the medial aspect of the ankle, and he explained that there was considerable twist involved. The ankle region quite rapidly began to swell. He doesn't remember seeing a bruise. The X-rays did not reveal any fractures. He rested at home for a few days with his feet up. After a few days he began to hurt in his low back. Nothing further had happened to bring that on. There was no leg radiation from his back. He was advised against resuming his usual habit of going on long walks, and that he should rest with feet elevated a fair amount to enable healing (not always the best advice). ..." 31In evidence, the plaintiff stated that he had a problem with his back at the time he saw Dr Figol, some 20 minutes after his fall but did not mention that problem at that time. Given the plaintiff's laconic presentation, I do not regard that omission as significant on an assessment of either credit or fact. 32Given my acceptance of the plaintiff's credit, and my acceptance of his evidence generally, in the absence of significant challenge on matters of history, I propose to treat the above history summarised by Professor Champion as evidence of the plaintiff's early post-injury difficulties and treatment: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, per Heydon JA at [70]; s 60 of the Evidence Act 1995. Similarly, and consistent with that approach, I have drawn upon the unchallenged content of the tendered medical reports to identify relevant aspects of the plaintiff's history, and his reported disabilities.

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Medical and allied assessments 33Professor Champion, a consultant rheumatologist, saw the plaintiff at the request of his solicitor, on 24 November 2009. A report of that consultation was issued on 28 November 2009. Professor Champion wrote further letters to the plaintiff's solicitor on 16 February and 14 June 2010, to provide his further comments on matters that had been requested of him. 34On 19 and 20 January 2010, the plaintiff underwent some medical investigations by North West Radiology. These investigations consisted of MRI scans of the right ankle and the lumbar spine. The opinions of the specialists who interpreted those scans was that the plaintiff had some minor low grade plantar fasciitis in his right ankle, and had mild disc bulges in his lumbo-sacral spine but without signs of nerve root impingement. 35Following his review of the plaintiff, and following his consideration of the imaging reports, Professor Champion formed the opinion that the consequence of the twisting injury to the plaintiff's right ankle was that the plaintiff has developed ongoing and chronic right ankle pain. He also thought the plaintiff had developed injury related low back pain, mainly from a mobile L5/S1 segment of the spine. He reviewed the plaintiff's right knee problems and whilst noting there had been a prior right knee injury which had resolved before the injury in question, this had provoked some ongoing problems due to an earlier vulnerability of that knee. 36Professor Fred Ehrlich, a consultant in orthopaedics and rehabilitation, saw the plaintiff on 7 December 2009, at the request of his solicitor. A report of that consultation was issued on 10 December 2009. Professor Ehrlich also wrote to the plaintiff's solicitor on 11 February 2010 in answer to a request that had apparently been made of him to provide further comments on the plaintiff's condition. 37Professor Ehrlich found that the plaintiff had a slight degree of loss of right midfoot inversion movement suggesting an ongoing abnormality of the right ankle collateral ligament, which he thought was partially ruptured. Professor Ehrlich was initially concerned that the clinical picture was of disc damage at the L4/L5 level of the lumbar spine and a possible right sided spinal nerve root irritation. After reviewing the lumbar MRI scans that had been sent to him, he identified the broad based annular disc bulge at L5/S1, and also at L4/L5, but to a lesser extent. 38Dr John Bentivoglio, a consultant orthopaedic surgeon, saw the plaintiff at the request of his solicitors on 12 February 2010, and issued his report of that consultation on 15 February 2010. Dr Bentivoglio thought that the plaintiff had sustained soft tissue injuries to multiple parts of his body. He also thought the plaintiff had some degree of discal damage to lower levels of the lumbar spine. At the time of his examination, Dr Bentivoglio was hopeful that the plaintiff's right ankle symptoms would settle with the passage of time. However, he qualified his comments by stating that it was unlikely that the plaintiff would ultimately end up asymptomatic in the regions of his back and right ankle. 39At the request of his solicitor, on 26 November 2009, the plaintiff was assessed by Mrs Trudie Warner, an occupational therapist. Mrs Warner conducted a review of the plaintiff's abilities and disabilities in conjunction with her consideration of the medical evidence as outlined in her report. She obviously spent some time analysing the plaintiff's needs before preparing her detailed exposition of his problems correlated to activity. Mrs Warner spent an hour assessing the plaintiff. In this case, I do not see any basis for concluding that this did not provide her with an adequate basis for her assessment of his situation and needs. She obviously spent significant time subsequently analysing his needs in the light of medical information that had been provided to her. 40On 8 February 2010, the plaintiff was examined at the request of the solicitor for the defendant, by Dr Kim Edwards, a medico-legal consultant and surgeon. Dr Edwards prepared a report of that consultation on 11 February 2010. Dr Edwards also provided the solicitor for the defendant with two further letters of the same date, as well as a further commentary that was dated 29 March 2010, which dealt with his review of the MRI scans that had been forwarded to him for that purpose. 41Dr Edwards was of the view that at his examination of the plaintiff, no objective clinical evidence of any abnormalities was present. In his report, Dr Edwards focussed upon an apparent inconsistency between the plaintiff's account of what he considered to have been his reported main problem at the examination on 8 February 2010, at which time the main problem was stated to be the back, when compared with the history taken by Mrs Warner on 26 November 2009, at which time the plaintiff's main problem was reported to Mrs Warner as being the constant pain in his right ankle. 42Dr Edwards did not think the MRI scan findings were of any significance in his assessment. Whilst Dr Edwards acknowledged that it was possible that the plaintiff had sustained soft tissue injuries in the fall, he did not believe that the plaintiff had sustained any significant injury in the incident, and thought the plaintiff could look forward to a good medical prognosis. 43In essence, the controversy that was revealed on reviewing the medical reports is that whereas Professor Champion and Professor Ehrlich considered that the plaintiff was left with the residual disabilities of the back and right ankle, Dr Edwards has arrived at a different opinion, and believed that there was no remaining abnormality. 44The difficulty in assessing which body of these conflicting opinions is to be preferred in such circumstances is not assisted by the absence of explanatory oral evidence from any of these experts. That said, I must nevertheless engage with the task of resolving the issues that arise on these conflicting medical aspects of the tendered medical reports. 45Having undertaken the analysis, I have concluded that I prefer the views of Professor Champion and Professor Ehrlich to the opinions of Dr Edwards. I have reached that conclusion because I consider that Dr Edwards has not given due weight to the plaintiff's subjective complaints and has based his opinion more on the objective physical findings. My assessment is that Professor Champion, Professor Ehrlich and Dr Bentivoglio have assessed the plaintiff's problems with an approach that included a relevant consideration of the plaintiff's subjective complaints. 46In arriving at this finding I do not intend to convey any criticism of the history taking by Dr Edwards. Given the plaintiff's laconic style and apparent reticence to adumbrate when discussing his problems, I consider that what most probably happened was that the plaintiff was a bland historian, and this probably deprived Dr Edwards of a more fulsome account of the difficulties he was experiencing as a result of his injuries.

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Disabilities that continue to affect the plaintiff 48Over time, the plaintiff's right shoulder, upper limb and elbow injuries have settled. However, he has been left with persistent pain in his right knee and ankle, including the experience of sharp pain, which he described as being mild, occurring 2 to 3 times a week. His low back problems remain intermittently troublesome for him, depending for severity on his level of activity, and he has difficulty laying on his back when sleeping. He experiences difficulty getting out of bed in the mornings due to back pain. 49His consequent reduced levels of activity have caused him to gain some weight. The evidence does not permit a precise finding on the extent of that weight gain, but I accept that it is a significant gain. The plaintiff experiences continuing problems with reduced standing and walking tolerance. He favours his right leg when standing by bearing his weight mainly through his left leg. He walks with a limp. He has some slight wasting of some of his right leg muscles. He is now unable to walk for more than about half an hour without experiencing difficulty with his right lower leg. This causes him to need to have to sit for an hour or so when he walks for that amount of time. The plaintiff also has problems walking on hard surfaces as a result of the right ankle injury. 50The plaintiff experiences chronic pain in his right lower leg, some sensory skin changes associated with that chronic pain, as was observed and reported upon by Professor Champion, he experiences some emotional symptoms of anger as a result of being injured, and with regard to his remaining disabilities. He has become stressed as a result of his disabilities and he feels this has led him to take up smoking cigarettes again. 51The plaintiff also experiences some difficulties in pursuing his hobby of tinkering with wrecked cars to salvage saleable parts. In this regard, he experiences difficulty in getting underneath the cars to work on them.

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Cause of fall by plaintiff 54Contrary to the submission made by the defendant, I am satisfied that it has been shown on the balance of probabilities that the presence of water on the vinyl floor supermarket premises was the cause of the plaintiff's fall. My reason for this conclusion is simply that it has been overwhelmingly established that the plaintiff had slipped on an area of the floor that was wet with water before he fell. Further, other than the fact that water was present on the floor, there was no evidence of the presence of any other slippery substances. Nor has it been shown that the plaintiff was doing something unusual whilst walking that was likely to cause him to slip and fall. 55It has been demonstrated by contemporaneous evidence that after the plaintiff had slipped and fallen, water was observed to be around him on the floor, on his clothes and on his footwear. I do not think it could be reasonably said that this was a mere coincidence in the face of uncontradicted, and otherwise inherently credible evidence that just before he fell, the plaintiff felt his foot slip from under him, and when he was on the floor he noticed the presence of water that had soaked his clothing, and that his footwear was wet. This evidence leads me to the conclusion that the fall was caused by the presence of water on the floor of the premises. 56The defendant's own investigation reports, Exhibit "A.1" and Exhibit "E", recorded the plaintiff's description of the incident as follows: " I was walking to get a trolley and slipped on water on the floor (water came from trolleys as it had been raining out side) ...". The same record indicated that a maintenance employee of the defendant, a Mr Peter Swan, took subsequent remedial action by cleaning the water up "straight away ". 57I find this relatively contemporaneous evidence serves to confirm the water on the floor as the cause of the plaintiff's fall. If there had been no water in the vicinity of the fall and the defendant's staff had been given the explanation of water causing the fall, as noted in those exhibits, it would have been expected that a note would have been made to the effect that no water was observed. The note in fact suggests the contrary to be true. There could be no other meaning of the words in parenthesis. 58The manner in which the water came to be present on the floor in the trolley bay area was made clear in the evidence of Ms Sultana, a general merchandise manager who was on duty on the day. She explained the system whereby contractors would bring trolleys inside to the trolley bay whilst wet because they had been left outside in the rain. The evidence was that no-one in the employ of the defendant had the task of wiping the trolleys down when wet, with the result that whilst the trolleys remained in an interlocked stack, water was able to drip onto the vinyl floor of the trolley bay area in the supermarket. When customers pulled a trolley from the stack of such trolleys, this disengagement had the effect of dislodging water onto the floor, and when the trolleys were dragged over the area with normal use, the water was tracked over a wider area in or near the trolley bay. 59When Mr Ikosipentarhos was called to the scene of the plaintiff's fall, he was in no doubt that the plaintiff's injury occurred because of the rainwater affected trolleys in the premises. His answers to questions on this topic were telling, and initially took the cross examiner by surprise because of their disarming candour, as the following extract of his evidence shows: "Q. Wasn't it part of your duties when you got to the scene of this accident to make some assessment as best you could as to why the accident had happened? A. Well we pretty much knew the accident would have happened because of the rain. Q. You pretty much knew what? A. That the accident would have happened because of the rain, because of the water, the water on the trolleys. Q. And? A. And that's it. I attended as the first aid attendant. Q. How was water on the trolleys going to cause Mr Wakeling to fall? A. Because apparently he slipped, he slipped didn't he? Q. Well your assessment was that what caused him to slip originated from the trolleys? A. Yeah the water on the trolleys. Q. So you assessed the situation in this way, didn't you, that the trolleys in the trolley bay were wet, that is the first step isn't it? A. Yep. Q. They were wet because they had been brought into the trolley bay in a wet condition, correct? A. Yep. Q. Because they were wet they were bound to drip water on the floor, you took that into account, didn't you? A. Yep. Q. That was part of your thinking wasn't it? A. Yeah it was part of it, yep. Q. And that as customers grabbed the trolleys and pulled them away from their stacked position they were likely to cause water to be upon the floor under the area traversed by the trolleys? A. Yes. Q. That's your assessment of how there came to be slipperiness in the area where Mr Wakeling had apparently fallen? A. That's right." 60There is no reason from within the evidence in this case to discount the aptness of the description that emerged from the evidence of Mr Ikosipentarhos as to the factual cause for the plaintiff's fall.

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Condition of plaintiff's footwear as an alleged cause of the fall 61Although it is argued that the condition of the plaintiff's footwear was the cause of the fall, there was no convincing evidence that compelled such a conclusion. In the absence of expert evidence to the contrary, even if it is accepted that the plaintiff's footwear was not new, or was about seven years old, or was apparently worn and without tread, this does not compel a necessary conclusion that the plaintiff slipped and fell for those reasons, or because of an absence of tread on the wear surface of his footwear. 62I am not prepared to infer that the age of the plaintiff's footwear and the described absence of tread were the relevant causative factors for the plaintiff slipping and falling. This is because it is well known and understood, and not requiring of evidence, that the presence of water on a vinyl floor can cause persons walking through it, or placing a foot on it, to slip and fall. That is different from the position where evidence would be required to sustain the proposition that newer and less worn footwear would have been a preventive factor that would have obviated the fall. There was no such evidence called and I draw no such conclusion. 63The plaintiff stated that he believed his thongs were dry when he entered the supermarket. Whilst he conceded the possibility that he may have stepped into a puddle to make his thongs wet, he did not remember doing so, and without evidence indicating that he did so. I do not consider it appropriate to infer from his concession as to the possibility, that it was more probable than not, the plaintiff had in fact stepped into water and had wet thongs before he entered the supermarket. I also take this view because if he had done so as was suggested, it seems likely that he would have slipped earlier as he walked through the shopping centre before he arrived at the defendant's supermarket. 64I consider it was more likely than not that the plaintiff's thongs were dry before he slipped, consistent with his own belief that was so. The family travelled from home to the supermarket, which was a short distance by car. They were under shelter within a short time of alighting from the vehicle and then spent some 20 minutes or so within the shopping centre, under cover, walking about various shops before entering the defendant's supermarket. In those circumstances, I am not prepared to speculate to the effect that the plaintiff's thongs, including the surface with which the soles of his feet would have had contact, were wet. 65In arriving at that conclusion I have had regard to differing accounts within the evidence concerning whether or not it was raining at the time of the plaintiff's injury, or even shortly beforehand. The evidence of the plaintiff was that he did not recall whether or not it had been raining. The evidence of his mother on this topic was that it had not been raining when they entered the shopping centre. The evidence of Mr King was that it was not raining at the time they went to the supermarket, although he did concede that the ground was damp, and the damp was distributed over an area of the carpark. He also conceded that it had rained over the previous several days. The meteorological evidence whilst relevant, is not probative on this issue because of the distances from the scene as described within the report. That evidence is far short of that required to find there were puddles into which the plaintiff had probably walked, resulting in wet thongs. 66In contrast, Ms Sultana thought there had been very heavy rain. When this was explored in her evidence it became apparent that she had observed that it was raining at 6.00am, when she had started work that day. I infer from her evidence in that regard that as she was indoors from that time, and therefore her evidence concerning the issue of rain should be discounted in favour of a reconciliation that allows for acceptance of the evidence of the plaintiff's parents that it was not raining when they arrived at the shopping centre, and the identification of the assumption which based the evidence of Ms Sultana, namely that she had observed it to be raining early in the morning. This does not equate with an observation that it was raining at about the time when the plaintiff fell. The fact that the trolleys were being brought into the supermarket in a wet state from outside does not compel the conclusion that it was raining as they could also have remained wet from rain that had fallen at an earlier time. 67Ms Annetts, a store support manager employed by the defendant attended the scene of the plaintiff's fall after responding to what she described as a " code blue " call, which was to indicate to staff that an accident had occurred. She took an incident report form to the scene and found the plaintiff on the ground, with the store manager, Mr Ikosipentarhos present. The plaintiff gave no answers to her questions so she filled out the incident report, which was Exhibit "A.1" from information provided by the plaintiff's mother. That evidence was consistent with the evidence that the plaintiff was generally reticent to answer questions. Ms Annetts noticed that the plaintiff was wearing thongs. She picked up a thong and turned it over and made the observation that most of the tread was gone from the bottom. She then offered the opinion " that's probably what made him slip ... No wonder he slipped, he's got no tread on the bottom of his thong ". It is significant to note that this was not an observation that she had contemporaneously recorded in Exhibit "A.1" or Exhibit "E". 68Ms Annetts said she took the other thong from the plaintiff's foot and wiped the thongs. She claimed to have observed the thongs were wet " all over " on the soles and on the inside. She formed the opinion that the plaintiff had walked in water. She made no observations about the plaintiff's clothing as to whether it was wet or dry. She stated she saw and wiped a black, dirty wet mark from the floor, " ... like a little skid mark ... It was like as if a thong had slipped ". She later described this as a wet scuff mark. Whilst she was there she took the opportunity to have a " quick glance around " which she later described as a close look. She did not describe the presence of water on the ground where the plaintiff fell, apart from the presence of " ... Just a little bit near where his thong was ". When she filled out the incident report form she had assumed that water was always there when it rained. She described some droplets under the trolleys. In this regard she gave the following evidence: "Q. Did you know that cleaning up of water on the surface of the-- A. Trolley bay yes. Q. --trolley bay area had gone on that morning before this man fell? A. That morning, it always does when it's raining. HIS HONOUR Q. What is the system that allows this to happen? A. When it's raining we're all trained, that's when it's raining the service desk will call for somebody to come and clean the trolley bay. When the trolley guy will bring the trolleys in. The mop and bucket is always left there when it's raining so that somebody will come and actually clean it and the service desk usually call whoever could be on the floor that day. They will call up or sometimes they go themselves and mop it up. Q. Is there a roving scout type person whose job it is to-- A. That's everybody. Q. But no one in particular? A. No and the store manager, myself included as well, sometimes I go up there and you know check the trolley bay out. Q. So it's not a timed sequence of event, it's more or less haphazard from what I'm understanding? A. Yes, yeah as what happens is service keeps an eye on the trolleys even if when there's no trolley service will go get the trolley guys to fill the trolley bay up. So it's just like a known practice that we actually do that." 69She had written the description of water on the report of incident form. She described a process of mopping up of water after the incident in connection with another line of wet trolleys being brought in from outside. The person who undertook that mopping procedure was the stock hand who was involved with the fruit and vegetables. 70Ms Annetts was not in a position to observe the state of the floor where the plaintiff fell prior to that fall. The reliability of her evidence that suggested there was little or no water in the vicinity of the plaintiff's fall has to be assessed along with the other evidence. 71Having surveyed the above evidence I am not satisfied that it has been shown that the plaintiff's thongs were wet, either on the sole side or the foot contact side, before he entered the supermarket. I prefer the evidence which suggests the plaintiff walked in the water that was on the vinyl floor when he slipped and fell. I therefore discount the description given by Ms Annetts as I prefer the evidence of the plaintiff, his mother, his father, Mr Ikosipentarhos and Ms Sultana as to the wet state of the floor where the plaintiff fell. I consider that the evidence of Ms Annetts in that regard was less reliable on this issue. 72I also discount the evidence of Ms Annetts as to the cause of the incident because it is clear from her evidence that she gave an opinion to the effect the slip was caused by the absence of tread on the plaintiff's thongs, rather than just describing the facts. I consider her non-observation of the plaintiff's wet clothing and the surrounding wet floor which other witnesses had observed to be indications for preferring that other evidence as being more reliable. In reaching these conclusions I have disregarded any commentary by Mr Fogg concerning footwear issues. He was given the assumption that the plaintiff was wearing rubber soled footwear, and not the more specific assumption of thongs. In my view, nothing of substance turns on this because the focus of Mr Fogg's report was the slipperiness of the vinyl floor when wet.

[21]

Duty of care 77There can be no issue that the defendant owed the plaintiff a relevant duty of care as the circumstances under consideration clearly gave rise to an obvious duty of care : Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 per Gleeson CJ at [13]. The defendant did not seek to argue otherwise, nor did it seek to argue that the scope of that duty did not extend to the risk that was encountered by the plaintiff. Instead, the defendant argued that it had adequately discharged the duty of care that it owed. 78The relevant duty owed to the plaintiff required that the defendant take reasonable care to protect entrants onto the premises from risks that could be foreseen and avoided : Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364 per McColl JA at [90], citing Hackshaw v Shaw [1984] HCA 84, (1984) 155 CLR 614 at page 663, to the effect that the measure of the discharge of that duty was what a reasonable person would, in the circumstances, do by way of response to becoming aware of a risk that was foreseeable : Stojan (No 9) Pty Ltd , at [90]. 79A conventional common law analysis for determining whether negligence has been established requires an application of the test formulated by Mason J in Wyong Shire Council v Shirt [1980] HCA 12; (1979 - 1980) 146 CLR 40, at [90]; page 48; Roads and Traffic Authority of NSW v Dederer [2007] HCA 42 at [18]. That analysis must proceed in conjunction with the requirements of s 5B of the CL Act . 80The question of whether the defendant acted reasonably so as to discharge the duty of care it owed to the plaintiff is a matter that must be evaluated according to the circumstances of the case : Australian Safeway Stores Pty Limited v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 , at pp 487 to 488 per Mason, Wilson, Deane and Dawson JJ. The analysis of this question must proceed prospectively : Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442, per Hayne J at [126], page 46. The analysis must also proceed in accordance with the requirements of s 5B of the CL Act . This requires a contextual and balanced assessment of the reasonable response to a foreseeable risk, not the more stringent test of prevention : Dederer , at [69]. 81The requirement in s 5B(1)(b) of the CL Act is that for negligence to be established, a risk must be assessed to be "not insignificant" . This has been determined to involve a slightly more demanding test than that required by an application of the formulation in Shirt : Shaw v Thomas [2010] NSWCA 169 per Macfarlan JA at [44].

[22]

Breach of duty of care 82The analysis of the facts in this case to determine whether there has been a breach of duty of care proceeds upon the foregoing principles. 83The defendant pointed to the evidence from within Exhibit "E' which stated that the floor in the area where the plaintiff had fallen had been last cleaned at 9.30am in the context of the incident having reportedly occurred at 9.45am. The question is whether the cleaning referred to in Exhibit "E", and any other actions taken by the defendant by way of risk minimisation, represented an adequate response to the risk. That question must proceed according to the analysis that is required by the CL Act . 84The risk of the plaintiff slipping and falling when walking into or upon areas where water was on the floor, whether the water was in large or small quantities as a result of having been dislodged as droplets from shopping trolleys that had been outside in the rain before being brought into the supermarket for use by customers, is a foreseeable one which the defendant, as a supermarket operator, knew or ought to have known: s 5B(1)(a) of the CL Act . 85There is little if any room for doubt about that proposition as it was a risk that both Mr Ikosipentarhos and Ms Sultana had in mind when they described the actions taken by the defendant's employees to address that risk in the rainy conditions that prevailed outside, and which in turn influenced the means by which the water from shopping trolleys previously outside, would be found on the vinyl floor of the supermarket. 86The risk of the water from that source being deposited onto the floor of the supermarket was not an insignificant one because of the way in which wet shopping trolleys were brought into and used at the supermarket: s 5B(1)(b) of the CL Act . 87This involved customers leaving trolleys out in the rain to be fetched by staff and brought back into the supermarket whilst still wet and then placed in the trolley bay area to be accessed by other customers whilst still wet and capable of dripping water onto the vinyl floor. The system that was employed at the time permitted trolleys to be brought into the premises whilst they were still wet and capable of dropping water on the floor as the trolleys were moved about during normal use. 88I consider that in such circumstances, it is readily apparent that a reasonable person in the position of the defendant would have taken precautions against the materialisation of the risk of someone in the supermarket slipping and falling as a result of the presence of water on the floor: s 5B(1)(c) of the CL Act . 89If precautionary steps were not taken against the risk of harm by slipping and falling due to the floor being wet from rainwater that had dripped from trolleys brought in from outside, I consider it would be highly probable that harm of the kind occasioned to the plaintiff would be likely to occur: s 5B(2)(a) of the CL Act . Furthermore, it is well known and understood by the occupiers of commercial premises available for entry by customers, that a slip or a fall onto the floor of premises has the potential of causing a range of seriousness of injury or harm, including debilitating injuries: s 5B(2)(b) of the CL Act . 90In the case of commercial supermarket premises where a significant flow of customers is to be expected, the burden on a supermarket operator such as the defendant to take precautions against the risk of patrons slipping and falling on wet floors, does not seem to me to be an onerous one, especially where the social utility of the activity of making the premises available to the shopping public is significant, and where it also involves a business profit for the operator of the supermarket: s 5B(2)(c) and s 5B(2)(d) of the CL Act . 91The evidence disclosed that the defendant really had no formally devised system for dealing with the problem caused by water dripping onto the floor from trolleys that came into the supermarket whilst wet, thereby exposing customers to the risk of walking into the water that was allowed to accumulate on the floor from the movement of those trolleys. Instead, it had an ad hoc method of addressing the risk, as it was described in the evidence of Mr Ikosipentarhos, Ms Sultana or Ms Annetts. The system adopted was for an employee to intermittently attend and to periodically mop the floor, unless specifically called to do so beforehand. This was consistent with the content of Exhibit "E", which disclosed that the defendant had assumed or assigned a low risk assessment to the circumstances of the plaintiff's fall. 92For the reasons that follow, in my view, the method adopted by the defendant was a haphazardous one, and did not represent a reasonable response to the risk. 93First , the trolleys were brought into the store when wet, when it was known this would cause water to drip onto the floor and cause a slippery hazard if not adequately addressed. In my view, intermittent observation and occasional mopping was an inadequate response to this wet weather phenomenon which would cause the floor to become wet and hazardous at an unpredictable rate. This is because the rate or frequency of customer access to the trolley bay area was not predictable. 94Secondly , although the defendant had available to it for deployment, safety cones, warning signs or witches hats that are commonly seen in public areas to warn of unsafe or slip prone areas of spillage and the like, in my view, no adequate steps were taken to ensure those warning objects were deployed and remained in a place of prominent display for persons such as the plaintiff when seeking access to trolleys located in the trolley bay area. The evidence disclosed that these could easily be moved by customers seeking access to the stack of trolleys. No-one was rostered to supervise or to ensure that the warning objects remained in the required place. 95Thirdly , as the evidence of Mr Ikosipentarhos shows, since the defendant had decided not to place absorbent or non-slip matting on the wet areas to address the risk of customers slipping and falling, something more was required than just intermittent mopping at intervals determined ad hoc by staff allocated to other duties. In my view it was an inadequate response to the risk to assume other staff at the counter would give an occasional glance to the area of the floor that became wet, whenever the intensity of the workflow for that staff subsided to the point where that employee could reasonably divide their attention to look to and assess the state of the floor at the trolley bay area to determine wetness and any need to mop it up. In my view that was not a reasonable response to the risk. 96In that regard, I consider that it was unreasonable to expect staff whose duty it was to attend to the customer service and checkout needs of customers, to also be responsible for the safety and the condition of the floor. This is because the floor area in question was some distance away from their observation points. It was insufficient to depend upon occasional glances towards the trolley bay area, which was some distance away, when time permitted, in circumstances where the potential of the floor to become wet and therefore unsafe, was not dependent upon the passage of fixed intervals of time, but rather, depended upon less predictable factors, such as the rate at which wet trolleys were moved through the area to cause water to drop onto the floor from them, and therefore onto areas frequently traversed by customers in and around the trolley bay area. 97Whilst Mr Ikosipentarhos gave reasons for not implementing a system of absorbent matting because it created other hazards when used in conjunction with trolley traffic, in my assessment, that was not a full, adequate or reasonable manner in which to address the risk. This is particularly evident when Mr Fogg's report is considered. 98Figures 4 and 6 on pages 10 and 13 of Mr Fogg's report shows that the trolley bay area was in a relatively confined space. If the system the defendant adopted was to bring wet trolleys in from outside on rainy days through the roller door aperture shown in Figure 3 of Mr Fogg's report, without cleaning them of accumulated water, it seems only reasonable that in order to avoid customers slipping on the wet vinyl flooring inside the supermarket, some absorbent matting of the kind described by Mr Fogg in Figure 7 on page 19 of his report, should have been installed. Mr Fogg identified that preventive measure as not involving excessive expense. That evidence was not challenged. 99Having regard to the slipping risk that was evident, I do not consider such a precautionary measure would have been an unreasonable burden on the defendant in the context of the whole of what I consider was its substantial commercial operation at the site. In my view, an absorbent floor surface of the kind identified by Mr Fogg would more probably than not have eliminated the risk of slipping on water affected vinyl tiles. 100Fourthly , the allocation of Ms Sultana to intermittently attend the trolley bay area with a mop and bucket to clean the floor, or to only respond to an intervening need to do so when called by a staff member for that purpose, was hardly an appropriate solution to ensure the safety of customers because the potentially wet floor was not being observed with sufficient regularity for an assessment of its safety in the face of known recurring hazards from water dripping onto the floor. 101The evidence disclosed that the store had a number of employees it could call upon, although the precise number rostered on duty that day was not known. The evidence was that a store assistant's salary was of the order of $700 per week gross. On rainy days, I consider that it would not have been unduly burdensome to roster an employee to supervise or observe known points of slipping hazard to protect customers, by mopping, warnings, or some other means. The defendant failed to do so, 102Fifthly , wiping the floor with a necessarily already wet mop would most probably leave a film of water on the surface of the vinyl floor which would have remained moist, until it dried. In such circumstances the floor area in question would not have been isolated from traffic by warning signs until it had dried. Even that measure was not likely to be appropriate because the more wet trolleys from outside were brought into the trolley bay, the more likely it was that more water would drip from those trolleys onto the floor to recreate or worsen the risk of a customer slipping. 103I accept the criticisms made by Mr Fogg concerning the inadequacy of the method by which the defendant sought to address the risk of slipping on the premises due to bringing wet trolleys into the trolley bay area. There was an insufficiently pro-active management system that addressed the requirements of pedestrian safety and cleaning. My assessment of the evidence of Mr Ikosipentarhos, Ms Sultana and Ms Annetts reveals that the defendant permitted an inadequate system for managing the risk of slipping on a wet floor because attention given to the problem was intermittent and haphazard, rather than organised and designed to avoid gaps in safety surveillance at a point of risk that was obvious and well known to the defendant's employees. The system adopted failed to properly address the risk, monitor it, and take reasonable precautionary measures to avoid the risk materialising when wet trolleys were brought into the supermarket for use by customers. 104On the foregoing analysis, I am satisfied that the defendant was in breach of the duty of care that it owed to the plaintiff in the circumstances of his fall.

[23]

Causation 105In the circumstances of this case, the plaintiff must satisfy the causation requirements of the CL Act : s 5D-5E. In my view the plaintiff has discharged the burden of demonstrating both factual and legal causation for her injury as required by those legislative provisions. 106In this regard, the breach of duty I have identified was clearly a necessary condition for the harm to occur. In that regard, it would have been most unlikely that the plaintiff would have slipped and fallen if there was no water left on the floor to permit the plaintiff to slip and fall: s 5D(a) of the CL Act . 107There is no dispute that the scope of the defendant's liability should extend to the harm occasioned to the plaintiff: s 5D(b) of the CL Act , and it is only appropriate that this be so because the defendant conducted a substantial retail supermarket business on the premises where the reasonable expectation would be that the occupier of such premises should be the subject of a duty of care owed to customers entering the premises for the purpose of shopping for supermarket goods within the premises. Accordingly, I find that the plaintiff has satisfied the legal requirements for establishing causation in these proceedings. 108On the evidence I have cited as to the cause of the plaintiff's injury, the plaintiff has demonstrated that the cause of his fall and subsequent injury was " more likely than not" due to the breach of duty of care on the part of the defendant: Woolworths Limited v Strong & Anor [2010] NSWCA 282, per Campbell JA, at [70]. In that case , the periodical inspection and cleaning procedures which in that case were found to have represented a reasonable response to a potato chip posing a slip risk after it had fallen to the ground since the time of the last inspection, were in my view, insufficient responses in this case; Woolworths v Strong , at [66] - [67]. That case is distinguishable from the facts in the present case because of the evidence given by Mr Ikosipentarhos, and which I have cited in paragraph [59] above, as to the predictable mechanism by which residual rainwater adherent to shopping trolleys would be located on the floor of the premises as a result of the predictable movement of those trolleys.

[33]

Non-economic loss 121On behalf of the plaintiff it was submitted that he is entitled to an award of damages for non-economic loss in the sum of $90,000, which is the monetary equivalent of 29 per cent of a most extreme case according to the damages table that applies pursuant to s 16 of the CL Act. In contrast, the defendant submitted that the plaintiff's entitlement to s 16 damages should be assessed in the range of 5 per cent to 10 per cent of a most extreme case, but no more than that. The consequence of the defendant's submission would be that the plaintiff's case would not meet the threshold for any award of s 16 damages. 122In support of his submission in that regard, on behalf of the defendant, Mr Priestley pointed to the evidence that suggested there had been no interference with the plaintiff's work potential, and the plaintiff's complaints of ongoing pain in his right ankle and his back were of little consequence. The effect of the defendant's submission as that there is little evidence to reliably suggest the plaintiff has suffered any significant ongoing disability that would warrant an assessment of s 16 damages. The absence of evidence of any significant treatment was also submitted to be a relevant consideration in this regard. 123I am unpersuaded by those submissions. Accepting as I do that the plaintiff is a laconic person who is not given to much detailed description in recounting events, as was plain in his evidence, I consider that characteristic probably carries over to other aspects of his life, including his motivation and his interactions with others. In that regard it is not all that surprising that he has not been voluble about the effects of his injury, including to the point of pressing for treatment. In my view, the plaintiff's laconic style is consistent with my impression of him being restrained or understated in his complaints about the effects of the injury. 124That view leads me in this case to have regard to the evidence concerning the histories that were more probably than not gained from the products of medically oriented questioning of the plaintiff in a less intimidating environment than the courtroom. I consider this to be a reasonable approach in this case, especially since that evidence was not challenged, or critically explored: Daw , per Heydon JA at [70]. I have already stated my findings concerning the injuries and disabilities that have been caused by the fall in question: paragraphs [47] and [51] above. 125Accepting as I do, that the plaintiff has ongoing right ankle pain and ongoing back pain, with these problems being of chronic nature for him to have to endure at his very young age, also noting that it is unlikely that he will ever be asymptomatic, as was observed by Dr Bentivoglio, in my view these matters call for an assessment of a significantly higher award than that contended for on behalf of the defendant. 126This becomes particularly apparent when considering that the plaintiff has become significantly limited in the extent to which he can engage in walking, which was his predominant pre-injury past-time and interest. The activity from which he had previously derived satisfaction and enjoyment, namely regularly walking long distances for hours at a time, has been substantially reduced because of his disabilities. In that regard, his standing and walking tolerances have become much reduced and this requires him to undertake significant rest at the onset of symptoms. 127Also of significance is the evidence of the plaintiff's weight increase since acquiring these problems. The defendant sought to characterise as unreliable, the plaintiff's evidence of his weight changes since his injury, asking him questions aimed at comparing what appeared in summarised histories on that subject in medical reports. I do not see that evidence as being in the category of unreliability as was submitted by the defendant. 128This is for a number of reasons. There was no empirical evidence by which to gauge the accuracy of the evidence given on the question of the plaintiff's weight. There was no relevant exploration of the basis of the plaintiff's belief as to his weight or of the circumstances by which he believed his weight had been measured, including by whom, in what manner, and with what degree of reliability for comparison purposes. I considered that the measured detail of the evidence of the plaintiff's weight gain since his injury to be less important than the trend shown by the evidence, namely a significant increase in the plaintiff's weight, which was consistent with a lessening of his level of physical activity. 129I do not consider the fact that the plaintiff has not sought out specialist treatment to be indicative of much in this case, or of great significance to a consideration of the level of an award of s 16 damages. The position might be different if it could be reasonably argued that he had failed to mitigate by not seeking out or pursuing recommended treatment in the hope of lessening his level of suffering, but that is not the position here. In this case, none of the medical experts identified a pressing need for the plaintiff to have treatment. The range of recommendations was to do nothing, to take analgesic medication, to undertake exercise based management, and Professor Champion's more extensive recommendations. In this latter regard, it was not suggested that any of these suggested measures should have been implemented earlier. Clearly, they remain an option for future management. 130In the light of that evidence, combined with my assessment of the plaintiff as being someone who has not been inclined to seek out medical advice unless pressed to do so, I draw no adverse conclusions against him with regard to the absence of pursuit by him of significant past treatment, insofar as it is suggested that this should have a discounting impact on the assessment of his entitlement to s 16 damages. 131In contrast, I am persuaded that the plaintiff honestly, and without guile, recounted the adverse effects his disabilities had upon him. I consider that he did so in an understated and stoic manner, which I do not consider justifies the discounting of his evidence in the manner that was submitted on behalf of the defendant. He is left with significant and ongoing back and right lower limb problems. 132In my view the matters to which I have referred in my findings concerning the injuries and disabilities suffered by the plaintiff, these being matters that will affect him in the long term, and from his present young age, which call for a significant award of damages for non-economic loss to compensate him for the significant interference he has suffered with regard to the amenity and enjoyment of his life. I consider that these matters properly equate with an assessment of 29 percent of a most extreme case, pursuant to s 16 of the CL Act , as was submitted on behalf of the plaintiff. I therefore award the plaintiff damages for non-economic loss in the amount of $90,000.

[34]

Future domestic assistance 133The plaintiff makes a claim for the future cost of domestic assistance in the sum of $63,000. The defendant disputes that entitlement and has submitted that there should be no award of any damages for future domestic assistance. 134The basis of the claim by the plaintiff is that the plaintiff's continuing disabilities warrant some allowance for future paid domestic assistance. My analysis of this component of the claim commences with the evidence of the plaintiff and his family, as well as the medical evidence as to the need for such assistance. 135As to the evidence of the plaintiff and his family, the defendant has pointed to discrepancies between the description given by the plaintiff and that given by his mother concerning his domestically oriented tasks. Whilst that analysis is relevant to a consideration of an entitlement to past damages of that kind, the analysis of the claim for a future-based need is entirely different. In that regard, the evidence of the plaintiff is not the only consideration. The medical and allied evidence takes on some significance where it is based on a weighing of the plaintiff's disabilities with the activities of daily living. In this case, such opinions are therefore of significant relevance and value to achieving an assessment of the plaintiff's claim of a need for future domestic assistance. A review of the range of such opinions follows. 136In analysing this component of the claim, the starting point is to note that the plaintiff is not entitled to damages for domestic assistance for the period until the date of the trial because he has not been able to demonstrate that he has received such assistance for a minimum of 6 hours per week for 6 months: s 15(3) of the CL Act. 137Professor Ehrlich did not think the plaintiff required domestic assistance. Dr Bentivoglio thought the plaintiff probably needed about one hour of domestic assistance per week to cope with activities, which he had difficulty carrying out himself. Dr Edwards expressed the view that the plaintiff has not, and would not, require any domestic assistance arising out of the incident. 138Mrs Warner's review identified a need for at least one hour per week of domestic assistance. Her rationale for that recommendation was that with a documented low back disc injury, it was advisable that the plaintiff avoid tasks involving prolonged static postures, bending, twisting and heavy manual handling in the long term to avoid aggravation of symptoms and the risk of incurring increased damage to the low back. She reinforced that view by reference to the fact that the preponderance of medical opinion is that the plaintiff's disabilities will persist into the foreseeable future. I consider that analysis to be a sound and acceptable basis upon which to consider making an award for damages for domestic assistance. 139On behalf of the plaintiff, it was submitted that an allowance for the cost of future domestic services should be made on a paid basis, for 2 hours per week or at the commercial cost of $77 per week, over the plaintiff's probable life span, which is 62 years, and discounted by 20 per cent to reflect the possibility of improvement in the plaintiff's symptoms. The amount submitted was $63,000. The submitted calculation used the multiplier for 65 years. Applying the correct 5 per cent multiplier for 62 years (1017.5) the plaintiff's submission equates to the sum of $62,678. 140In contrast, the defendant submitted that no monetary allowance should be made for this head of claim because the evidence of the plaintiff was that he was able to vacuum and mop the house and there was no convincing evidence that the plaintiff would have any difficulty with housework. The defendant submitted that the opinion from Mrs Warner that supports such a claim has no probative value because she has proffered her opinion on the basis of the plaintiff's ankle problems, yet the plaintiff now claims he has back problems that affect his ability to do domestic work. In my view that is not a disentitling factor, as the plaintiff's back problems are, as I have found, injury related, and have given rise to an assessable need for such services. 141The defendant submitted that the plaintiff's capacity to work long hours as a security guard seems inconsistent with the claimed need for domestic assistance. That submission is flawed because there was no evidence that equated the work of a security guard with the ability to perform housework, especially the heavier aspects of housework. Although the defendant further submitted that the claim was not supported by Professor Ehrlich , that is not the only form of analysis, especially since Dr Bentivoglio suggested one hour per week would be needed. I prefer Dr Bentivoglio's view because it recognises that the plaintiff will not be asymptomatic, and when that view is taken together with Professor Champion's views as to the chronic nature of the plaintiff's problems, I consider that one hour per week of domestic assistance with the heavier aspects of housework, as a lifetime average, is reasonable. 142In view of this analysis, I consider that some allowance should be made for paid domestic assistance in the future. However, as the plaintiff's injury based need has not been co-related to specific tasks that might warrant the engagement of domestic assistance at a commercial cost, but rather is based on more general and non-specific considerations, I consider that the plaintiff is more likely to receive such assistance on an ad hoc or intermittent basis, and as a kindness from family friends or strangers. In those less definable circumstances, in this case, I consider that the rate of calculation should proceed at a rate that is more akin to the statutory rate under s 15(4) of the CL Act , in the rounded sum of $25 per hour, rather than at the submitted commercial rate. The calculation should be for a lifetime average of 1 hour per week at that rate. 143As a result, the projection of $25 per week at 5 per cent over 62 years and discounted by 20 per cent as indicated, yields the amount of $20,350. I therefore award the plaintiff damages for future domestic assistance expenses in the amount of $20,350 .

[35]

Future treatment expenses 144The plaintiff makes a claim for future treatment expenses in the sum of $12,500. In contrast, the defendant submitted that an award of damages for future medical treatment is unwarranted on the evidence given in this case. In order to resolve this controversy, it is necessary to refer to the range of medical opinion on this topic. 145Professor Champion identified a case for treating the plaintiff's right lower leg problems with physiotherapy. He also recommended that the plaintiff undergo some further imaging investigations for the right leg and lower back. He suggested the plaintiff use anti-inflammatory medications and analgesic medications as well as undertaking exercises. Professor Champion identified the cost of physiotherapy over a total of 2 years to be about $1500. He also identified possible short-term orthopaedic consultations, and short term medication costs in the further amount of $450. Professor Champion also raised the possibility of a need for an arthroscopy. He foreshadowed the possibility of active orthopaedic intervention in the cost range of $8000 to $12,000. Taken at their highest, Professor Champion's recommendations, undiscounted are in the approximate range of about $10,000 to $14,000. 146Professor Ehrlich did not think that there was any further treatment available for the plaintiff. Dr Bentivoglio thought the plaintiff did not have sufficient symptoms to benefit from seeing a specialist as at February 2010. Dr Edwards thought the plaintiff required little in the way of treatment after the injury. That view was intended to address the question of a possible need in the plaintiff in respect of past and the future components of treatment. Mrs Warner did not identify any future treatment needs other than to recommend a functional capacity assessment and a future vocational assessment. She estimated these costs in the total sum of about $1700. 147The plaintiff's claim for an allowance of $12,500 for future treatment has to be viewed in the light of that evidence. 148In weighing the differing views, I have preferred the opinions of Professor Champion and Mrs Warner recommending an allowance for future treatment, as opposed to the view expressed by Dr Edwards, and to a lesser extent, the views of the other experts who examined the plaintiff and which do not support such an allowance. I have taken that view because of the plaintiff's relatively young age, and because of Professor Champion's view that the plaintiff's complaints have a chronic character. In those circumstances, I consider that it would be unreasonable not to make any allowance for future treatment, which was the approach submitted on behalf of the defendant. 149When the views of Dr Edwards are examined with regard to future treatment, I consider those views may be safely discounted because in coming to his opinion that the plaintiff needed little in the way of treatment, he focussed his views on his assessment of the plaintiff's physical presentation on examination, apparently without any stated consideration of the plaintiff's subjective complaints of pain. In my view, the plaintiff's complaints of pain should not be excluded, discounted or ignored from the perspective of a consideration of future treatment needs. I have discounted the views of Dr Edwards on that account. 150I also consider that the views of Professor Ehrlich and Dr Bentivoglio on the absence of a need for future treatment should be similarly discounted, in favour of the approach taken by Professor Champion. I take that view because Dr Bentivoglio thought the plaintiff had insufficient symptoms to warrant treatment at the time of his report. I consider that to be overly simplistic in view, taking into account the plaintiff's young age and the chronic nature of his problems. In this regard, it seems to me that Dr Bentivoglio has paid insufficient regard to the plaintiff's short to medium term treatment needs in the circumstances where he considered the plaintiff would not be entirely asymptomatic. 151In those circumstances I consider that Dr Bentivoglio's recommendation for medication costs of the order of $200, and an exercise based treatment programme to be insufficient to address the plaintiff's longer term chronic pain because pain is necessarily subjective, and the fact that the plaintiff may not presently qualify for treatment may not be the necessary lifelong view where his problem is a chronic one. 152In the light of the evidence I have summarised, I consider that the approach taken by the submissions of the defendant, to only allow for the cost of some over the counter pain relief tablets, to be overly simplistic. It allows no scope for medically supervised treatment which I consider to be an unreasonable approach in the presence of problems that are medically characterised as being of a chronic nature. In my view, to accede to that submission, would result in unfair under-compensation to the plaintiff. 153Whilst the evidence does not suggest any accurate basis for an allowance for a regular recurring weekly cost for projection, as is seen in some personal injury damages cases, I consider that the plaintiff should be awarded a buffer sum to allow for a range of recommended treatment options, as outlined by Professor Champion, whose evidence I prefer to those of the other experts who had views on this topic. Recognising the process of identifying a buffer amount is necessarily imprecise, I consider that a buffer sum of $7000 in this case represents an allowance that is fair and reasonable to both parties. I therefore award the plaintiff damages for future treatment expenses in the amount of $7000.

Wakeling v Coles Group Limited

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Cases Cited (15)