ALDI Foods Pty Ltd v Young

1. [1]

   MEAGHER JA: These reasons assume a familiarity with the judgments of Simpson JA and Adamson J. I agree with Simpson JA that the primary judge is not shown to have erred in holding that the appellant was negligent and that its negligence caused the injuries sustained by the respondent on 22 July 2009. With respect to the awards of damages for non-economic loss and future out-of-pocket expenses, I agree with Simpson JA that the primary judge is not shown to have erred. However, I consider that the evidence did not justify an award of damages for future domestic assistance, essentially for the reasons given by Adamson J. In the result the orders I propose are that the appeal be allowed in part and the judgment for the respondent reduced by $18,000 to $117,000. I agree with the costs order proposed by Simpson JA.

2. [2]

   Conflicting evidence was given by the respondent and the appellant’s employee, Mr Tidmarsh, as to what, if anything, was said between them that may have led to the respondent walking behind Mr Tidmarsh so as to gain access to the cross-aisle. I agree that the CCTV footage does not support either witness’s evidence of what was said between them immediately before the incident. The respondent’s evidence, that Mr Tidmarsh gestured to indicate that if she was “waiting for the strawberries” she should walk around behind him, was implausible for the additional reason that at the time the video shows her standing directly in front of, and in reach of, a display tray of strawberries.

3. [3]

   The question whether the respondent’s injury was caused by the appellant’s negligence falls to be determined on the basis that there was no specific direction or indication given by the appellant as to whether the respondent could or should gain access to the cross-aisle by walking behind Mr Tidmarsh; and on the further basis that the respondent was given no warning as to the tines (or prongs) of the pallet jack obstructing the entrance to that aisle.

4. [4]

   The primary judge did not err in holding that the appellant breached its duty of care as occupier of the food store by positioning the pallet jack so that those tines extended beyond the bottom of the pallet and across the face of the cross-aisle. Leaving it in that position created the risk that someone, not appreciating it was there, would slip or stumble, as in fact occurred. The pallet jack could easily have been positioned where it did not obstruct access to the aisles of the store, as the primary judge found.

5. [5]

   In Papatonakis v Australian Telecommunications Commission [1985] HCA 3; 156 CLR 7 at 20, Mason J observed that the content of an occupier’s duty to exercise reasonable care varies with the circumstances “including the degree of knowledge or skill which may reasonably be expected of the invitee and the purpose for which the invitee enters upon the premises”.

6. [6]

   The Court (Gleeson CJ, McHugh, Kirby, Hayne and Heydon JJ) added in Thompson v Woolworths (Qld) Pty Limited [2005] HCA 19; 221 CLR 234 at [37], that the factual judgment involved in deciding what is reasonably to be expected involves an “interplay of considerations”. Those considerations include, from the occupier’s perspective, the reasonableness of an expectation that any invitee will exercise reasonable care for his or her own safety or of an expectation that allows for the possibility that the invitee will sometimes be inattentive or even negligent; the obviousness of the relevant risk of harm; and the remoteness or otherwise of the likelihood that others will fail to observe and avoid it.

7. [7]

   In assessing what it should do for the safety of its customers, the appellant ought reasonably to have anticipated that customers would not always be attentive to their own safety or immediately conscious of what was going on around them. They are likely to include people who are rushing, who are distracted as they move about the store or who are directing their attention to the product or products displayed around them.

8. [8]

   Such a shopper would not necessarily notice the tines of a pallet jack close to the floor. This is particularly so taking account of the primary judge’s observation at [79] that the evidence did not suggest that the tines would be easy to see. The evidence was that they were metal, close to the floor, perhaps a darker grey than the floor itself, and extending out from under the pallet containing the strawberries which Mr Tidmarsh was unloading.

9. [9]

   At [79] the primary judge also accepted the respondent’s evidence that she did not see the tines before she tripped or stumbled. In making that finding the primary judge rejected the appellant’s submission that the respondent was aware of the presence of the pallet jack and attempting, unsuccessfully, to step over the tines when she stumbled. Although the CCTV footage shows the respondent at an earlier point in time looking towards the pallet boxes, which were positioned at the end of the pallet jack immediately below and to Mr Tidmarsh’s right, it does not follow that she must also have noticed the tines or the handle of the pallet jack extending beyond them and further away to her right.

10. [10]

    The appellant also challenges the primary judge’s findings as to causation and contributory negligence. I agree with Simpson JA’s conclusions in respect of each. The finding that the respondent stumbled on the tines that she had not seen inevitably led to the conclusion that the appellant’s negligence in positioning the pallet jack caused the accident and her injuries.

11. [11]

    It is not necessary to consider whether the appellant was also negligent in failing to warn of the position of the pallet jack, as the respondent also alleged. There would have been no duty to warn if the risk of injury was “obvious” as the appellant argued (Civil Liability Act 2002 (NSW), s 5H(1)). The primary judge concluded that the risk of injury was not an “obvious risk” (s 5F(1)). Whether that was so had to be assessed objectively, taking into account the position of the respondent: Doubleday v Kelly [2005] NSWCA 151 at [28]; Streller v Albury City Council [2013] NSWCA 348 at [31]. The appellant submitted that the risk should have been readily apparent to the respondent as she first walked down the main aisle and past Mr Tidmarsh. As I have already noted in [8] above, the primary judge rejected this argument, finding that the respondent was “in general terms aware that Mr Tidmarsh was unstacking strawberries from a pallet” but not aware of the pallet jack or the tines of that pallet jack extending beyond the sides of the pallet. The CCTV footage does not demonstrate this finding to have been erroneous and I do not regard it as glaringly improbable.

12. [12]

    The primary judge found at [169] that as a result of her fall the respondent “suffered an aggravation to her [pre-existing] knee and back problems, pain in her right shoulder and pain in her wrist and hand”. Her Honour found that this aggravation “particularly to her knees and back, has continued”.

13. [13]

    These findings were supported by the evidence of the respondent’s treating general practitioner (Dr Zwi) and the contemporaneous clinical notes of Hunters Hill Private Hospital and Alwyn Rehabilitation Hospital, where she had been receiving treatment in the case of the former, over a period which included the happening of the accident and, in the case of the latter, in early August 2009.

14. [14]

    The more difficult question for the primary judge was to assess the severity of the respondent’s non-economic loss caused by that aggravation (Civil Liability Act, s 16). That task was made more difficult because, although the respondent had a long-standing psychiatric condition which the evidence suggested had intensified since the accident, she did not claim that the accident had aggravated that condition or contributed to her ongoing depressive symptoms. However, that condition and its symptoms formed part of her ongoing disabilities, and were manifest in what Dr Weisz described as her “obvious non-organic presentation”.

15. [15]

    The formulation of this question acknowledges, as did the primary judge at [168], that the respondent had significant pre-accident problems, especially with her knees and lower back, which would have continued to cause her pain and require treatment irrespective of her falling. This was not a case in which the evidence failed to raise an issue as to the existence of pre-accident conditions and their probable future effects. The evidence having done so, it remained for the respondent on the whole of the evidence to establish the measure of her damages: Purkess v Crittenden [1965] HCA 34; 114 CLR 164 at 168, 170.

16. [16]

    The respondent’s case was that the ongoing effects of her pre-existing conditions would have been minimal. It was said that those conditions were resolving; that by the time of the accident, she was able to walk freely; and that without the further injuries, she would not have continued to require rehabilitation or pain treatment (see Judgment at [164]).

17. [17]

    As Simpson JA observes, the central question of the appeal in this respect concerns the primary judge’s assessment of the extent to which the respondent’s present symptoms and complaints were materially contributed to by the accident as distinct from her undoubted pre-accident conditions. The primary judge addressed that question at [169] and [170]. Her assessment of the respondent’s non-economic loss at 28% was made by reference to the respondent’s evidence and that of Dr Wijeratne, Dr Weisz and Dr Harbison.

18. [18]

    Her Honour found (at [167]) that prior to the accident the respondent had improved somewhat although remained “physically fragile” and “vulnerable” to exacerbation of her conditions. Her Honour accepted the “report” of Dr Wijeratne that the respondent had been suffering gradually worsening pain in her knees and that this was made worse by the fall so that in 2013 her mobility was severely impaired and her day-to-day functioning limited. The appellant submits that this report was simply a referral letter to Dr Cross which did no more than recite the respondent’s history as it was told to the writer.

19. [19]

    The evidence shows that the respondent consulted Dr Wijeratne in March or April 2013 whilst an in-patient at the Wesley Private Hospital at Kogarah. It does not suggest that he had treated her at any time prior to that occasion or that he was provided with the results of any earlier clinical or other investigations. The primary judge considered (at [105]) Dr Wijeratne’s statement that the respondent’s mobility “was now severely impaired and that it limited her day-to-day functioning” as an opinion arising from this consultation.

20. [20]

    Dr Weisz’s opinion was that the respondent’s current condition included a “complex pain syndrome” caused by a combination of injuries “some old and pre-existent, and augmented by the last fall in 2009”. He did not make any assessment of the extent to which the respondent would have continued to suffer from the consequences of those injuries and her existing psychiatric condition if the fall had not occurred.

21. [21]

    The evidence of Dr Harbison, which the primary judge regarded as “not all that dissimilar” to Dr Weisz’ opinion, was that “most, if not all” of the respondent’s present symptoms were due to the pre-existing significant arthritis in her knees, the fact of her knee replacements and the degenerative changes in her shoulder and lumbar spine. Expressed differently, his opinion was that the likely progress of those pre-existing conditions would have produced the same or almost the same symptoms as the respondent was in fact experiencing.

22. [22]

    The primary judge’s likening of Dr Weisz’ opinion to that of Dr Harbison is perhaps to be understood as finding common ground between them in the proposition that whilst there had been an aggravation of the respondent’s pre-existing conditions, at least most of her present symptoms were attributable to those pre-existing conditions and would have occurred in any event.

23. [23]

    The primary judge was then left to assess the respondent’s injuries and disabilities as caused by the fall, in circumstances where the evidence established that there had been an aggravation of her pre-existing conditions which resulted in pain and restricted movement. Like Simpson JA, I am not satisfied that the assessment made was manifestly excessive. The primary judge’s findings included that the respondent’s mobility was severely impaired following the accident as a result of the aggravation of her lower back and right knee conditions, and that the respondent experienced significant pain in part due to that aggravation.

24. [24]

    I am not persuaded that this award involved any error. Although no claim for past out-of-pocket expenses was pressed at trial, after the accident and before the hearing, the respondent received treatment for her pain symptoms and to assist her mobility. That treatment included periods spent at Alwyn Rehabilitation Hospital, Mt Wilga Private Hospital and Royal North Shore Hospital. The evidence showed that the aggravation of her existing injuries was contributing to her ongoing pain and reduced mobility. The likelihood was that the respondent would continue to seek treatment for that reason. The amount provided for that treatment is not obviously excessive.

25. [25]

    I agree for the reasons given by Adamson J that this award is not supported by the evidence.

26. [26]

    SIMPSON JA: On 22 July 2009 the respondent, Ms Susan Young, was shopping in a general merchandise store owned and/or operated by the appellant, Aldi Foods Pty Ltd. She tripped on a pallet jack being used by store employees to replenish stock on the shelves, and sustained personal injury.

27. [27]

    She commenced proceedings in the District Court against the appellant, alleging that her injuries were caused by the negligence of one of its employees, Mr Joel Tidmarsh. On 22 October 2014 Norton DCJ found in favour of the respondent, but found that the appellant had established that the respondent had contributed to her own injury, and reduced by 10 per cent the damages to be awarded. She awarded damages in the sum of $135,000: Susan Marie Young v Aldi Foods Pty Ltd (NSWDC, 22 October 2014, unreported).

28. [28]

    The appellant appeals against this decision, both as to liability and the quantum of damages awarded. The respondent has not cross-appealed against the finding of contributory negligence.

29. [29]

    The appeal against the finding of liability is largely confined to the facts as found by the primary judge.

30. [30]

    By s 75A(5) of the Supreme Court Act 1970 (NSW), the appeal is by way of rehearing; by subs (6), this Court has, with respect to fact finding and drawing inferences, the powers and duties of the District Court, subject to such restraints as are imposed by the advantage enjoyed by the primary judge in observing the witnesses at first hand: Fox v Percy [2003] HCA 22; 214 CLR 118.

The hearing

1. [31]

   The hearing of the respondent’s claim took place over four non-consecutive days commencing on 27 February 2014 and concluding on 22 December 2014. Oral evidence was given by the respondent, and, on behalf of the appellant, by Mr Tidmarsh. There were conflicts in the evidence of the two witnesses as to relevant circumstances. Also placed before the primary judge were documentary exhibits, and, importantly for the purposes of the appeal, a closed circuit television (“CCTV”) video that had recorded significant parts of the incident. There were also still images taken from the CCTV recording. There is, however, no sound recording.

The circumstances of the injury

1. [32]

   The CCTV recording, and still images taken from it, show the configuration of the store. Two wide aisles (“the lengthwise aisles”) run the length of the store; in the centre, in the foreground of the images, are display boxes of fruit and vegetables. The display boxes are not continuous; in places they are separated, so that they are divided by a shorter, narrower, cross-aisle, at right angles to, and connecting the lengthwise aisles. A small bank or pod of four display boxes is in the foreground, that is, nearest the back of the store, separated by a cross-aisle from a longer bank or pod of display cases. At the end of the bank of four boxes is another cross-aisle; both cross-aisles provide access to the lengthwise aisles.

2. [33]

   In 2009 the respondent was 52 years of age. She had recently been hospitalised for two weeks, and was still receiving hydrotherapy and physiotherapy three times weekly as a result of the after effects of bilateral knee replacements she had undergone in 2004.

3. [34]

   On 22 July the respondent was shopping in the Aldi store in Manly. She gave an account of what happened, as follows. She entered the store, walked to the rear, and into the section where fruit and vegetables were displayed.

4. [35]

   Mr Tidmarsh was unpacking strawberries from boxes on a trolley which was standing to his right. (Throughout the pleadings and the evidence, the trolley was referred to as a “pallet jack”, and, for convenience, I will continue to use this terminology.) Another, older, gentleman was nearby. The respondent and this gentleman had an exchange about the strawberries. Mr Tidmarsh was standing in the right hand lengthwise aisle, facing across the fruit display boxes toward the left hand lengthwise aisle. The respondent paused, to the left of Mr Tidmarsh, close to the end of the bank of four boxes. Mr Tidmarsh asked the respondent if she was waiting for the strawberries; she said that she was, and he told her that she would have to “go around this way”, gesturing with his hand “towards around the back of him”.

5. [36]

   This would indicate that the respondent should walk behind him, a short distance, in the right hand lengthwise aisle and into the cross-aisle. This is what the respondent did. She walked behind Mr Tidmarsh and she “stumbled and fell”. As she did so, she saw a pallet jack protruding from under the boxes, which she had not previously observed. She stumbled forward, twisted, and fell on her right side, using her right hand in an attempt to protect her face.

6. [37]

   A customer came to her assistance, and directed Mr Tidmarsh to provide the respondent with a chair. She was in considerable pain.

7. [38]

   An Incident Report book was brought to the respondent. She completed part of an Incident Report form, and the other customer also wrote in the book. Mr Tidmarsh took the Incident Report book and returned with a copy of the form that he gave to the respondent. The respondent’s entry in the Incident Report book was:

8. [39]

   In 2009 Mr Tidmarsh was a student employed part-time in the appellant’s Manly store as a deputy manager and store assistant. His duties included restocking display cases of fruit, vegetables and other goods. To do this, he used both electric and manual pallet jacks, the latter for lighter work. The pallet jacks were used for transporting two types of pallets, the smaller of which was a “D pallet”.

9. [40]

   No clear description of the pallet jack was given in oral evidence, and there is no photographic evidence that shows it clearly. However, the pallet jack as used by Mr Tidmarsh can be seen in the video recording, and is reproduced in the still images. These suggest that the pallet jack consists of a tray or platform made up of two strips, slightly separated, of a metal substance (called “prongs” in Mr Tidmarsh’s evidence) with a narrow gap between them; the platform sits close to floor-level, on wheels, and has a long handle at one end that enables the pallet jack to be pushed or pulled.

10. [41]

    On 22 July 2009 Mr Tidmarsh was restocking display cases, using a pallet jack on which were placed boxes of strawberries. The CCTV images show that on the end of the pallet jack furthest removed from the handle were stacked four (or more) boxes of strawberries. That part of the pallet jack that was nearest the handle and the operator was empty. The pallet jack was in the right lengthwise aisle, blocking access to the cross-aisle. The respondent asked Mr Tidmarsh about “a particular product” (Mr Tidmarsh did not specify what the “particular product” was). Using his right hand, Mr Tidmarsh indicated that it was “on the far side of the fruit and vegetable display”, located in the left hand lengthwise aisle (later to be called “the meat aisle”), towards the front of the store.

11. [42]

    Having given the respondent that direction, and because his pallet jack was obstructing access to the cross-aisle, Mr Tidmarsh said:

12. [43]

    Mr Tidmarsh returned to his task of restocking the strawberry display. Contrary to his direction, the respondent moved behind him and attempted to move through the cross-aisle. To do so, she walked over the pallet jack. Mr Tidmarsh observed her do this in his peripheral vision. The respondent stepped on the prong nearest to where she had been standing and lost balance. The transcript records Mr Tidmarsh’s evidence as:

13. [44]

    Mr Tidmarsh also completed part of the Incident Report. His entry reads:

14. [45]

    There was some, although limited, cross-examination of Mr Tidmarsh with respect to the conversation. Mr Tidmarsh was asked why he had not included in his entry in the Incident Report that the respondent had disobeyed his instruction to walk around the other way to the left side. His response was that he considered that he had done so, by noting “instead of walking around the other side …”.

15. [46]

    It was then suggested to Mr Tidmarsh that he was “telling lies”, although the cross-examiner did not specify whether the accusation was as to the conversation, or as to his explanation for his somewhat pithy entry in the Incident Report.

16. [47]

    The respondent’s case can be simply stated. It was that, by placing the pallet jack in a position such that it obstructed access to the cross-aisle, in failing to warn her of the presence of the pallet jack, and in failing to place barriers between the pallet jack and “customers” (that is, the respondent), the appellant was in breach of the duty of care it, as occupier, undoubtedly owed to her as a customer in the store.

17. [48]

    The appellant denied any breach of duty. It pleaded reliance on provisions of the Civil Liability Act 2002 (NSW), specifically, ss 5F, 5G and 5H. It further alleged contributory negligence on the part of the respondent, particularised as failing to keep any adequate lookout for her own safety, failure to take heed of the presence of the pallet jack, failure to avoid “the obvious danger” (the existence of which it expressly did not admit) and failure to watch where she was walking.

18. [49]

    To a significant extent, determination of the claim depended upon resolution of the factual dispute between the respondent and Mr Tidmarsh as to the terms of their conversation. Another factual conflict concerned the manner in which the respondent came in contact with the pallet jack. She at all times said that she “tripped” or “stumbled” over it. Mr Tidmarsh said that she attempted to walk over it, by stepping on the prongs. This allegation was not directly put to the respondent, although one question in cross-examination contained an assumption that she had “stepped onto the prongs”. She contradicted the assumption, saying:

19. [50]

    The primary judge made the following findings of fact relevant to liability:

20. [51]

    Of these factual findings, the primary judge said, there was little conflict. She then turned to the disputed issues of fact. These concerned the encounter between the respondent and Mr Tidmarsh, and the conversation between them.

21. [52]

    With reference to the CCTV footage, the primary judge said:

22. [53]

    The primary judge rejected Mr Tidmarsh’s evidence, and accepted that of the respondent. She did not accept that Mr Tidmarsh’s entry in the Incident Report could be read as stating, or implying, that he had given the respondent a direction to avoid using the cross-aisle. She rejected a submission made on behalf of the appellant to the effect that Mr Tidmarsh’s account of the conversation had not been challenged; she held that the cross-examination concerning the absence of any direct reference to such a direction in the Incident Report was a sufficient challenge to his evidence in that respect.

23. [54]

    The primary judge further held that, even if Mr Tidmarsh’s evidence as to what he had said to the respondent were accepted, there was nothing in the words he recounted that would amount to a warning that the prongs of the pallet jack were blocking access to the cross-aisle and that it would be unsafe to walk in that direction.

24. [55]

    The primary judge accordingly proceeded to determine liability on the basis of the facts asserted by the respondent, in particular that no warning had been given to her that the prongs of the pallet jack extended beyond the pallet adjacent to where Mr Tidmarsh was standing. (I think the reference to the pallet adjacent to where Mr Tidmarsh was standing must be a reference to the pallets of strawberries he had placed on the display boxes.)

25. [56]

    The primary judge then turned her attention to the various pleaded provisions of the Civil Liability Act. These are:

26. [57]

    She worked her way through the various matters mentioned in s 5B. She noted the submissions of the parties with respect to the risk of harm, and concluded:

27. [58]

    She found that the placement of the pallet jack, such that a portion of the prongs on which there was no pallet blocked access to the cross-aisle, created a foreseeable risk that a customer might trip on it ([59]); she found that the risk of tripping was “not insignificant”, as was the chance of serious injury being occasioned ([61]).

28. [59]

    Applying the considerations set out in s 5B(2), she concluded that there was “a strong possibility” that harm would occur if care were not taken. She reached this conclusion having regard to the nature of the customer base in a store such as that operated by the appellant. She found it “likely” that serious harm could result; this, in part, was because of the hard surface of the floor on which a customer who tripped would fall, and the sharp edges of display fixtures against which a customer who tripped would fall. She found that taking precautions would not have imposed any significant burden on Mr Tidmarsh or the appellant ([67]). Finally, she concluded that there was no social utility in the activity that created the risk of harm.

29. [60]

    For the purposes of s 5D (causation) the primary judge identified the breach of duty as leaving the pallet jack in such a position that its prongs obstructed access through the cross-aisle, and that leaving the pallet jack in that position was a necessary condition of the occurrence of the harm. She found nothing in the evidence to suggest that the harm suffered by the respondent should be outside the scope of the appellant’s responsibility (s 5D(4)).

30. [61]

    With respect to s 5G, the primary judge stated that the respondent had not pleaded a failure to warn. This was erroneous. The respondent had in the Statement of Claim expressly pleaded failure to warn. She found that the prongs represented “a hidden danger”, in effect rejecting the proposition that the presence of the pallet jack constituted an obvious risk, of which the respondent ought to have been aware.

31. [62]

    The provisions of s 5B apply equally to consideration of contributory negligence: s 5R. By s 5R(2):

32. [63]

    In considering the particularisation of the allegation of contributory negligence, the primary judge said:

The grounds of appeal

1. [64]

   The appellant pleaded 10 grounds of appeal with respect to liability, but, in written submissions, reduced these to five principal issues. These may be encapsulated as follows:

2. [65]

   The central factual issue was whether the respondent’s fall happened as stated by her - that is, by her walking in the direction indicated by Mr Tidmarsh, and, in effect, being led into a dangerous situation constituted by the presence of the pallet jack protruding across the entry to the cross-aisle, or whether the respondent had moved in a direction towards the cross-aisle; contrary to the indication given to her as Mr Tidmarsh claimed.

3. [66]

   There appear to have initially been two areas of conflict in the evidence of the two witnesses, although only one was of significance. The insignificant area was as to whether the pallet jack was parked in the right lengthwise aisle, or in the cross-aisle. In her evidence in chief the respondent said that Mr Tidmarsh was taking strawberries from boxes in the cross-aisle; in cross-examination it was put to her that the pallet jack was in fact located entirely in the right lengthwise aisle, a proposition she eventually accepted. It was, however, parked across the intersection of the lengthwise aisle and the cross-aisle.

4. [67]

   The more significant area of dispute concerned what Mr Tidmarsh said, or, more accurately, what he did. His evidence was that, in answer to the respondent’s query, he not only gave an oral reply (as set out above), but also made two gestures – the first, with his right hand, indicating the location of the product the respondent was asking about; the second, with his left hand, indicating that the respondent should walk from his left hand side (where she was standing) to the end of the bank of four boxes of fruit, turn right at the end, walk across the end of the bank of four boxes, and again turn right into the meat aisle. The respondent’s evidence was that Mr Tidmarsh gestured with his hand “towards the back of him”, indicating that she should turn into the cross-aisle, entry to which was impeded by the postioning of the pallet jack. Since she was standing to his left, this would logically mean that he was indicating that she should enter the cross-aisle after walking towards him, and around his back.

5. [68]

   On behalf of the appellant it was submitted that the CCTV demonstrated that the respondent’s version was “entirely implausible”, and that, therefore, Mr Tidmarsh’s evidence ought to have been accepted.

6. [69]

   The problem with this submission is that the CCTV footage does not support Mr Tidmarsh’s version any more than it supports the respondent’s version. What it shows is that the respondent walked behind Mr Tidmarsh, and turned left into the cross-aisle – as, she says, he indicated that she should do. It was there that she stumbled across the pallet jack.

7. [70]

   The primary judge did not explore this issue in any depth, and certainly not by reference to the CCTV recording. The only reference to the recording in her reasoning is at [42], where she said that it was not sufficiently clear to be of any assistance in resolving the question about the conversation. It is correct that, in the absence of any sound recording, the CCTV footage is not determinative of the evidence of the conversation. It does, however, cast some light on that question.

8. [71]

   Since no credibility issues arise in relation to conclusions to be drawn from the CCTV recording (as distinct from the oral evidence of the two witnesses) this Court is in as good a position as the primary judge to undertake the necessary exercise.

9. [72]

   After closely watching the CCTV footage numerous times, I am of the view that it does not entirely support either version of the encounter between the respondent and Mr Tidmarsh. This is not because of any lack of clarity, as the primary judge thought, but because Mr Tidmarsh’s gestures, such as they are, are not in accordance with either the respondent’s account, or Mr Tidmarsh’s account. There is nothing on the recording that supports the respondent’s claim that Mr Tidmarsh indicated that she should walk behind him and into the cross-aisle. Equally, and contrary to the appellant’s submission, there is nothing that supports Mr Tidmarsh’s evidence of gesturing, first with his right hand, and then his left hand. There is (at 2.46 of the recording) one tiny, momentary movement of his left hand, that could be interpreted as pointing towards the meat aisle (which Mr Tidmarsh said he did with his right hand). That is to a limited extent consistent with his account of the conversation, in that it gives some support to his assertion that he directed the respondent to the meat aisle in response to her inquiry. But there is nothing that I can see that remotely supports his evidence that he gestured in that direction with his right hand, and nothing that supports his evidence that he then indicated, with his left hand, that the respondent should walk to the bottom of the aisle.

10. [73]

    Nor does the footage provide any reason for the respondent’s failure to comply with such a direction, had it been given. The footage shows that Mr Tidmarsh was standing facing towards the meat aisle, in front of the bank of four fruit boxes, and very close to the end of that bank. The respondent was standing to his left side, almost at the end of it. The distance between where she was standing when talking to Mr Tidmarsh and the end of the bank of the display cases is very small - it would appear to be less than a metre. There is no apparent reason for the respondent to have returned, behind Mr Tidmarsh, to the cross-aisle to gain access to the meat aisle, other than in compliance with his direction. That gives some support to the respondent’s version of events.

11. [74]

    The next point made on behalf of the appellant was that Mr Tidmarsh’s evidence of the conversation had not been challenged and therefore should have been accepted. The primary judge rejected this, concluding that his evidence had been challenged in the brief passage of cross-examination in which it was put to him that he had not mentioned the conversation of which he gave evidence in his entry in the Incident Report book. It was noted that the respondent also had not included her version of the conversation in her entry in the Incident Report.

12. [75]

    That cross-examination was a somewhat flimsy basis for a conclusion that Mr Tidmarsh’s evidence had been challenged, although it was sufficient to indicate that his evidence was, at least, questioned. The difficulty is that the versions of the conversation given by the respondent and Mr Tidmarsh were diametrically opposed, and the primary judge had to choose between them. Although the respondent was painstakingly taken through the CCTV footage, it was never clearly put to her that her version of the conversation was incorrect. In other words, while the criticism levelled at the primary judge for rejecting Mr Tidmarsh’s evidence has some validity (on the basis that it was not directly or explicitly challenged), it is a criticism that cuts both ways.

13. [76]

    A further criticism was that the primary judge gave no, or inadequate, reasons for her acceptance of the respondent’s evidence, and consequent rejection of Mr Tidmarsh’s evidence. Reference was made to Whalan v Kogarah Municipal Council [2007] NSWCA 5 at [40]-[41] and Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [56]-[67] where the gravity of rejecting sworn testimony was noted.

14. [77]

    There is some merit in this criticism. However, the primary judge did not reject Mr Tidmarsh’s evidence on credibility grounds. Rather, to the extent that her reasons can be discerned, she did so on reliability grounds, noting that the incident occurred in 2009 and Mr Tidmarsh gave evidence in 2014. Mr Tidmarsh was not cross-examined in such a way as to suggest that his recollection was faulty.

15. [78]

    What is inescapable, on the CCTV evidence, is that Mr Tidmarsh’s evidence as to directing the respondent to access the meat aisle by walking to the end of the fruit display cannot be accepted. But, equally, the respondent’s evidence that he gestured to her to access the meat aisle by walking behind him, and using the cross-aisle, cannot be accepted.

16. [79]

    What remains is the evidence of the location of the pallet jack, in the right hand lengthwise aisle, but partially obstructing access to the cross-aisle. Also important is the manner in which it was loaded: on the end were pallets of strawberries, which, by their height, would have been readily observable; what was not so readily observable were the prongs that were not loaded with pallets, and sat close to floor level. It would not have been apparent to a shopper that the pallets of strawberries were on a pallet jack that extended over the cross-aisle.

17. [80]

    That the primary judge gave insufficient weight to the CCTV footage does not assist the appellant; had she more closely examined it, she would have had an additional reason to reject Mr Tidmarsh’s evidence. While it also does not entirely support the respondent’s account of what happened (and especially of the conversation), it is more consistent with her version than that of Mr Tidmarsh.

18. [81]

    The primary judge has not been shown to have been in error in preferring the account given by the respondent.

19. [82]

    In Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; 234 CLR 330, Gummow J said:

20. [83]

    That the appellant owed the respondent a duty of care cannot, in my opinion, be questioned: Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; 162 CLR 479. Determination of the scope of that duty of care takes into account the exercise of reasonable care by the respondent. Although the appellant addressed lengthy written submissions to the question of whether it was in breach of its undoubted duty to the respondent, ultimately its contention was simply that the respondent failed to take reasonable care for her own safety. That does not bear on the question of the existence of the appellant’s duty, any breach of its duty, or, indeed, what the duty entailed, although it is plainly significant in relation to the question of contributory negligence.

21. [84]

    Once it is accepted that Mr Tidmarsh parked the pallet jack in a position such that it protruded over the access to the cross-aisle, that boxes of strawberries were placed on one end of the pallet jack, but not on that part of it that was nearest the handle, and that the prongs of the pallet jack were low to the floor, and therefore not plainly visible, breach of duty has been established.

22. [85]

    These grounds of appeal, in my opinion, fail.

23. [86]

    The nub of the appellant’s written submissions with respect to causation was:

24. [87]

    There was no expansion or explanation of the assertion that the respondent had failed to establish that the breach of duty was a necessary condition of the occurrence of her injuries.

25. [88]

    The submission cannot be sustained. It is plain beyond argument that a cause (if not the principal cause) of the respondent’s injuries was the manner in which the pallet jack had been left, obstructing the aisle, but with no pallets stacked on it which might have been apparent to the respondent. The reasons given by the primary judge for this finding were correct.

26. [89]

    These grounds of appeal, in my opinion, must fail.

27. [90]

    The appellant’s submissions in respect of contributory negligence drew heavily on the judgment of Basten JA in Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA 139; 86 NSWLR 393 at [99].

28. [91]

    Basten JA had under consideration an injury occasioned to a plaintiff when he was struck from behind by a forklift truck when walking in the premises of the defendant. The plaintiff had seen the forklift travelling on the site on three occasions, sometimes laden with bricks. He had the impression on at least one of those occasions that the forklift was driven erratically at speed, and had on one occasion tilted on cornering.

29. [92]

    In this context, Basten JA (with whom Emmett JA agreed) held that, in the assessment of contributory negligence, no distinction was to be made between the fact that from one perspective the driver of the forklift was in control of a vehicle that could cause serious harm to a pedestrian, while from the perspective of the pedestrian, the likelihood of serious harm which could occur if care was not taken was to be considered. He held that:

30. [93]

    The relevance to the present case of the passage relied upon is somewhat obscure. There is in this case no notable inequality in the physical capacities of the respondent and Mr Tidmarsh, as is the case when the injured party is a pedestrian, and the instrument of injury is heavy machinery such as a forklift.

31. [94]

    More apposite authority is to be found in Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; 59 ALJR 492; 59 ALR 529, in a passage that was quoted by Basten JA in Boral Bricks (No 2). The passage is as follows:

32. [95]

    It may be that the appellant’s submissions were predicated on acceptance of the evidence of Mr Tidmarsh as to his conversation with the respondent; if it were concluded that Mr Tidmarsh had directed the respondent as he claimed that he had, then it could readily be accepted that the relative contribution to her injury by the respondent was greater. However, as indicated above, Mr Tidmarsh’s evidence in that respect is not supported by the CCTV footage. There is no acceptable evidence that he directed the respondent to walk in a different direction to that which she did. There is, similarly, only slight evidence that he directed the respondent towards the cross-aisle as she claimed. It is necessary, therefore, to approach the question on the basis that Mr Tidmarsh parked the pallet jack in the lengthwise aisle, partly across the cross-aisle with the prongs low to the floor, and, by reason of there being no pallets on one part of them, not clearly visible. It was Mr Tidmarsh who created the danger by leaving the pallet jack in the position in which he did. Although the appellant contended that “there can be no doubt that [the respondent] was aware of the presence of the pallet jack”, I do not accept that. It is contrary to the respondent’s oral evidence. The appellant sought to support this contention by reference to an answer given to a request for particulars on behalf of the respondent. The appellant’s solicitors had asked:

33. [96]

    The respondent’s contribution to her injury was minor, being an understandable omission to keep a look out for her own safety, but in circumstances in which she had no reason to anticipate danger. I would not disturb the primary judge’s assessment of contributory negligence at 10 per cent.

34. [97]

    In my opinion, all grounds of appeal against the finding of liability fail.

DAMAGES

1. [98]

   The award of damages was governed by the provisions of the Civil Liability Act. The respondent claimed damages for non-economic loss (s 16), past and future out of pocket expenses, and past and future domestic assistance. Her claims for past out of pocket expenses and past domestic assistance failed for lack of evidence. The primary judge assessed her non-economic loss at 28 per cent of a most extreme case, resulting in an award of $80,000. She noted that the claim for future out of pocket expenses was quantified in the vicinity of $500,000, but awarded a “cushion” of $50,000. In respect of future domestic assistance, she awarded a lump sum of $20,000. After deduction of 10 per cent, representing the finding of contributory negligence, she awarded damages totalling $135,000.

2. [99]

   The calculation of damages was necessarily a complex one. That was because the respondent had a lengthy history of both physical and psychiatric ailments that predated the injury the subject of the present proceedings. There was, therefore, a good deal of medical evidence, all documentary, before the primary judge. No medical practitioner gave oral evidence. A proper assessment of the respondent’s damages called for examination, first, of the evidence of the respondent’s physical condition as at the date of the hearing, second, of the evidence of her pre-existing condition, and, third, of an analysis of the causal relationship between the injuries sustained in the fall and her current condition. This task was not undertaken by the primary judge, principally because the parties did not attempt to conduct the damages assessment in that way.

3. [100]

   The appellant challenges each of the awards of damages made.

4. [101]

   The appellant first complained that the primary judge “erred in failing to find that the respondent did not suffer any injury at all in the alleged fall, or, if she did, it was no more than a temporary one”. It next challenged the finding that the respondent’s injury satisfied the threshold of 15 per cent of a most extreme case presented by s 16(1) of the Civil Liability Act, and, alternatively, the quantification of 28 per cent. The appellant then challenged the awards for future out of pocket expenses, and domestic assistance, in both cases alleging error, or, alternatively, failure to give sufficient reasons for the findings.

5. [102]

   The respondent herself gave scant evidence of her medical condition and disabilities as at the date of the hearing. There are significant gaps in the narrative.

6. [103]

   She said that, immediately after the fall, and as she left the store, she was in a lot of pain, was very shaky and found it very difficult to walk. The pain was in her knees and lower back. A friend who was waiting for her drove her home. She attempted to see a local general practitioner but was unable to do so. She stayed at home, experiencing “terrible difficulty”, because of stairs, and the bathroom arrangement. She therefore went to stay with her mother, who lived nearby.

7. [104]

   At the time, the respondent was receiving physiotherapy and hydrotherapy (in circumstances to which I will come) three times per week. She continued to have this treatment, hoping it would help with the most recent injury. Two days after the fall, on 24 July, she saw her general practitioner, Dr Zwi, who prescribed pain killers (additional to those she was already using). She was then admitted to the Alwyn Private Hospital where she remained for 2 to 3 weeks. (The records of the Alwyn Private Hospital indicate that she was admitted on 7 August, and discharged on 24 August.)

8. [105]

   The respondent said that she then developed “a lot of pain” in the shoulder area. That pain continued to the time of the hearing. It had become worse over time, though variable. She consulted a Dr Burrows at the Mater Medical Rooms. Dr Burrows ordered continued physiotherapy, hot packs, strapping and means of managing her movements to minimise pain.

9. [106]

   The respondent’s back also deteriorated. The treatment for her back was hydrotherapy, physiotherapy, ultrasound, painkillers, spinal injections, and braces.

10. [107]

    In early 2013, while the respondent was a patient in the Wesley Private Hospital (in circumstances of which there was no evidence) Dr Wijeratne referred her for knee surgery, to be undertaken by a Dr Papademetrious. That surgery was cancelled because the respondent was admitted to the Mosman Private Hospital as a psychiatric patient for treatment for depression.

11. [108]

    The respondent said that her knee continued to cause her “terrible pain”, and that she was “very much restricted” in what she could do.

12. [109]

    It appears that the respondent continued to live with her mother until her mother’s death in 2013. Her son Christopher also lived with them. The respondent said that, as at the date of hearing, she was “not coping”. Until the time of her mother’s death, she and Christopher “were pretty much doing everything for me”. In addition, her mother was receiving some form of home care, but that ceased on her mother’s death.

13. [110]

    Some further information about the respondent’s condition can be derived from the medical evidence, although it is scarcely comprehensive.

14. [111]

    Dr Zwi, the general practitioner the respondent consulted on 24 July, provided a report in July 2012. She recorded:

15. [112]

    On 7 February 2011, Dr Greggory Burrow, the orthopaedic surgeon to whom the respondent had been referred, reported:

16. [113]

    On 3 April 2013 Dr Wijeratne referred the respondent to Dr Mervyn Cross, an orthopaedic surgeon. The referral letter included the following:

17. [114]

    In July 2013 the respondent was referred to Dr George Weisz, an orthopaedic surgeon, for medico legal purposes. He reported on 5 August 2013. He noted that the respondent had had double knee replacements in 2004 and added:

18. [115]

    As to her condition as at July 2013, Dr Weisz said:

19. [116]

    Dr Weisz gave his conclusions as follows:

20. [117]

    The central question in relation to the appeal against the quantum of damages is the extent (if any) to which the respondent’s present symptoms and complaints were caused by the injury in the appellant’s store, or, alternatively, are attributable to her undoubted pre-injury condition. The answer to that question depends upon examination of some additional evidence, including medical evidence adduced on behalf of the appellant.

21. [118]

    The respondent had a longstanding history of psychiatric illness. She had suffered from major depression, for which she had repeatedly been admitted to psychiatric hospitals. So much was not in issue, and, as I understand the proceedings, the respondent did not claim that her depressive symptoms were caused by the fall. Nor did the primary judge make any finding to that effect. However, the respondent had also had physical ailments. As has emerged from the above extracts from the medical reports, in 2004 she underwent double knee replacement. Initially, she had a good outcome from this surgery – she said that, although she had “a little bit of scar tissue”, her knees “were great”.

22. [119]

    She was, however, on 20 June 2009, admitted to the Hunters Hill Private Hospital following an “accidental manipulation” of the right knee a few weeks earlier. (What an “accidental manipulation” is was not explored or explained.) The respondent was discharged on 4 July - 18 days prior to the fall. The Discharge Summary recorded:

23. [120]

    Also in evidence were medical records from the Mosman Private Hospital which appear to show that the respondent was admitted on 6 May 2009 and discharged on or about 1 June. This admission appears to have been for depression, but a “Care Plan” recorded that, as at 31 May, the respondent’s knee was “chronically bent following 2 total knee replacements” but was straightening with exercise. A later admission (6 July), apparently also for psychiatric purposes, recorded the respondent as suffering chronic pain of the lower back and knee.

24. [121]

    As mentioned above, there are records of numerous admissions for psychiatric purposes. It is not necessary to go into the detail of these.

25. [122]

    The appellant had the respondent examined by Dr Scott Harbison, an orthopaedic surgeon, and Dr Klaas Akkerman, a consultant psychiatrist.

26. [123]

    Dr Harbison examined the respondent on 26 November 2013. He recorded her history. In response to specific questions put to him by the appellant’s solicitors, Dr Harbison said:

27. [124]

    There was thus a clear difference of opinion between Dr Weisz and Dr Harbison.

The findings of the primary judge

1. [125]

   The primary judge reviewed at some length the medical evidence. She concluded:

2. [126]

   The primary judge accepted the opinion of Dr Weisz that the respondent suffered a complex pain syndrome which she considered to be “not all that dissimilar” to the opinion of Dr Harbison. She proceeded to assess non-economic loss at 28 per cent of a most extreme case.

3. [127]

   She then rejected the claims for past out of pocket expenses and domestic assistance, but allowed the sum set out above in respect of future out of pocket expenses and future domestic assistance.

4. [128]

   The appellant’s submissions began with an acknowledgment that:

5. [129]

   The appellant submitted that the assessment of the respondent’s non-economic loss at 28 per cent of a most extreme case came within these principles, having been based on a misapprehension of the facts or a wholly erroneous estimate of the damage suffered. It was, it was submitted, excessive and outside the bounds of sound discretionary judgment.

6. [130]

   The appellant then referred to the respondent’s long medical history, and pre-existing significant medical problems.

7. [131]

   Criticism was made of the primary judge’s reliance on the report of Dr Wijeratne. That report, it was submitted, was simply a referral letter to Dr Cross and appeared to be more of an acceptance of a history given than a reasoned medical opinion.

8. [132]

   It was submitted that the allowance of a “cushion” of $50,000 in respect of future out of pocket expenses was:

9. [133]

   Finally, similar complaint was made about the allowance of $20,000 for future domestic assistance.

10. [134]

    The respondent’s submissions with respect to non-economic loss were that that assessment came within the bounds of the exercise of sound discretionary judgment and therefore should not be interfered with.

11. [135]

    The respondent placed heavy reliance upon the report of Dr Weisz, diagnosing a complex pain syndrome, and aggravation of pre-existing conditions.

12. [136]

    With respect to the awards of damages for future domestic assistance and out of pocket expenses, reliance was placed upon life expectancy tables for a woman of the respondent’s age. These assessed the life expectancy of the respondent as 31.49 years. Seen in that light, the respondent submits, the awards for future treatment and care are not excessive.

13. [137]

    There were significant differences to be observed in the opinions stated by Dr Weisz, on behalf of the respondent, and Dr Harbison, on behalf of the appellant. The primary judge preferred the opinion of Dr Weisz, although she did not see major differences between the two.

14. [138]

    Since neither practitioner gave oral evidence, this Court is in as good a position as the primary judge to make that assessment.

15. [139]

    The opinion of Dr Weisz gained some significant support, not only from the respondent’s own oral evidence, but also from the objective evidence contained in the CCTV recording. That undoubtedly shows the respondent walking without difficulty prior to the fall. That is further supported by the discharge summary assessment of the Hunters Hill Private Hospital.

16. [140]

    Although the significant issue for the assessment of damages concerned any impact of the respondent’s pre-existing condition upon her post-accident condition, neither party referred to the authorities relevant to that question: see Malec v J C Hutton Pty Ltd [1990] HCA 20; 169 CLR 638; Watts v Rake [1960] HCA 58; 108 CLR 158; Purkess v Crittenden [1965] HCA 34; 114 CLR 164. In Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208, Ipp JA, with whom in this respect Mason P agreed, referred to these decisions and pointed out that according to Malec:

17. [141]

    In this case, while the issue of the respondent’s pre-accident condition was raised on the evidence, the appellant made little attempt to “disentangle” the effects of the fall from the respondent’s pre-existing condition. All Dr Harbison said was that the fall did not aggravate the pre-existing condition. However, scant as it was, there was evidence, from the respondent herself, and from her treating medical practitioners, that she had suffered an exacerbation.

18. [142]

    The primary judge accepted that evidence.

19. [143]

    In this respect it is important to bear in mind that the respondent’s psychiatric condition was not a matter under consideration. She pressed no claim for psychiatric injury.

20. [144]

    The assessment, for the purpose of determining non-economic loss, of the respondent’s condition as representing 28 per cent of a most extreme case was, perhaps, a generous one, but one within the bounds available to the primary judge.

Future out of pocket expenses

1. [145]

   On behalf of the respondent, a very substantial claim was made for future medical and treatment expenses ($500,000). As the primary judge observed, the evidence in support of such a claim was deficient. However, on the evidence, it was open to her to infer (as she did) that the respondent would incur expenses in the future. One difficulty in the assessment of damages under this head was that there was no evidence of the costs of past treatment, although a claim had been made. The claim appears not to have been pursued at trial because no evidence was called to support it (I would infer, by oversight, probably on the part of the respondent’s legal advisers). The fact that the claim for past medical expenses was not pursued at the hearing does not, in my opinion, bear upon the existence of a need for future medical expenses. In the absence of specific evidence of the nature of the treatment, and its projected cost, her Honour’s allowance of a “cushion” of $50,000 was appropriate and fair.

Future domestic assistance

1. [146]

   Although I initially took a different view with respect to the allowance for future domestic services, I have now read in draft the judgment of Adamson J, by which I am persuaded. The evidence did, in my opinion, establish that the respondent would, in the future, require additional assistance in her daily life and domestic tasks, and that such assistance was unlikely to be forthcoming on a gratuitous basis. Where the evidence was deficient was in providing any basis for a determination of the extent, if any, to which that need was attributable to the injuries caused by the appellant’s negligence as distinct from the progression of the respondent’s other conditions. I have considered that the award of $18,000 (after deduction of 10 per cent for contributory negligence) ought to be set aside. I would allow the appeal to that extent.

2. [147]

   Since the appellant has been successful only to a very modest degree, I would order that it pay 90 per cent of the respondent’s costs.

3. [148]

   The orders I propose, therefore, are:

4. [149]

   ADAMSON J: I have had the benefit of reading in draft the reasons of Simpson JA. I adopt her Honour’s summary of the background; the evidence; and the reasons of the primary judge. My reasons for reaching different conclusions from those of Simpson JA, as to liability and damages, are set out below.

The grounds of appeal

1. [150]

   For the purposes of addressing the ten grounds of appeal, I adopt Simpson JA’s categorisation of the five principal issues as follows:

   1. (1)

      whether the primary judge was in error in attributing insufficient weight to the CCTV footage and rejecting the evidence of Mr Tidmarsh;

   2. (2)

      whether, “viewed prospectively”, the appellant breached any relevant duty of care it owed to the respondent;

   3. (3)

      causation;

   4. (4)

      whether the respondent’s fall was the result of a materialisation of an obvious risk; and

   5. (5)

      whether the finding of contributory negligence of 10% was erroneously inadequate.

2. [151]

   The CCTV footage is a significant piece of evidence because it shows the layout of the shop; the respective positions of the respondent and Mr Tidmarsh at various times; the movements of other customers; and, to some extent, the movement of the fruit from its original position on the pallet jack to the display counters in the store. There are, however, obvious limitations. Because there is no sound recording, the meaning of Mr Tidmarsh’s gestures and the content of any apparent interchanges between Mr Tidmarsh and the respondent cannot be determined without reference to other evidence.

3. [152]

   The CCTV footage and the still photographs show that refrigerated items were displayed on one side of the store. There were also free-standing counters, which were arranged lengthways, separated by wide aisles. Between counters, there were also smaller “side lanes”, which were perpendicular to the wide aisles. At the time of the incident Mr Tidmarsh had parked his pallet jack in one of the wide aisles so that it completely obstructed one of the side lanes. The respondent stepped over, or tripped, or slipped on the exposed prongs of the pallet jack between the boxes of strawberries which sat at the end of the prongs on the pallet jack, and the handle of the pallet jack (which was at the other end). In doing so, she lost her balance and suffered injuries.

4. [153]

   The respondent’s case at trial was that Mr Tidmarsh had told her that she could get to the meat section by walking behind him and using the side lane. In light of the CCTV footage, the respondent’s evidence that Mr Tidmarsh gestured to indicate to her that she could get to the meat aisle by walking behind him and using the side lane cannot be accepted.

5. [154]

   The appellant’s case at trial was based on Mr Tidmarsh’s evidence that he told the respondent to go around the long way to get to the meat section (thereby avoiding the side lane, which was blocked off by the pallet jack). The primary judge rejected Mr Tidmarsh’s version, apparently on the basis that it was inconsistent with what he had written in the incident report at the time, which was:

6. [155]

   It is not easy to discern the inconsistency between Mr Tidmarsh’s evidence and the incident report form. The versions are reconcilable. The incident report form contains the implication that Mr Tidmarsh instructed the respondent to walk “around the other side”. The primary judge appears to have reasoned that, if Mr Tidmarsh had given such an instruction, he would have expressly referred to it (rather than relied on the implication that, in my view, arises from the words he chose) in the incident report form. It was not directly put to Mr Tidmarsh that he had not given such an instruction to the respondent.

7. [156]

   Although I have some doubts about the forensic processes that led to the primary judge’s rejection of Mr Tidmarsh’s version, it did, in part, reflect her Honour’s advantage in seeing and hearing him, and the respondent, give evidence. Accordingly, although I consider Mr Tidmarsh’s oral evidence to be consistent with the incident report form and his gesture as depicted on the CCTV footage, I do not consider it to be open to me to find, in these circumstances, that he gave such a direction. This finding does not affect my ultimate conclusion because, for the reasons given below, I consider the risk to have been an obvious one, in respect of which there was no duty to warn and, further, I do not consider the location of the pallet jack to have been negligent.

8. [157]

   I am not satisfied that Mr Tidmarsh (as the respondent contended) directed the respondent to proceed down the side lane. Indeed, the CCTV footage is sufficient, in my view, to establish that he did not give such a direction. Thus, the only reasonably available conclusion is that the respondent decided (of her own volition and without instruction or other intervention from Mr Tidmarsh) to go down the side lane across the pallet jack.

9. [158]

   There are at least three potential possibilities as to why the respondent chose to do this: first, that she did not see the pallet jack; secondly, that she had momentarily forgotten that it was there; or, thirdly, that she thought she could negotiate the pallet jack safely (by stepping over the prongs between the boxes of strawberries and the handle) and decided, having made that assessment, to take a short cut through the side lane to the meat aisle. Having considered the CCTV footage and the respondent’s movements, as well as Mr Tidmarsh’s activities during the relevant period, I cannot accept that the respondent was not aware of the position of the pallet jack, or its configuration. It had, after all, occupied that position for a considerable period, during which the respondent had examined the fruit on the pallet jack, including shortly prior to the accident.

10. [159]

    This conclusion does not determine the question of negligence but it has the effect that, to establish liability, the respondent must prove that the appellant was responsible for some negligent act or omission which led to her losing her balance.

11. [160]

    The respondent did not allege that the appellant was negligent for allowing pallet jacks to be used to restock the merchandise of the store during opening hours. The particulars of negligence were as follows:

12. [161]

    Having regard to the way in which the respondent put her case, the duty of care owed by the appellant to the respondent required the appellant to take reasonable precautions so as to avoid, or minimise, the risk of harm to patrons and to the appellant’s own employees from contact with the pallet jacks on the shopfloor.

13. [162]

    The primary judge accepted the respondent’s case that the appellant was negligent for parking the pallet jack across a side lane so that it blocked the passage of patrons seeking to gain access to other items through the side lane in circumstances where; boxes of strawberries were placed on one end of the pallet jack (but not on that part nearest to the handle): and the prongs of the pallet jack, which were low to the floor, were exposed.

14. [163]

    The primary judge said, relevantly, at [69]:

15. [164]

    The primary judge found the appellant liable on that basis. I am unable to agree.

16. [165]

    I am not persuaded that the appellant breached the duty of care that it owed the respondent. I consider the primary judge’s finding of negligence to be unduly affected by hindsight.

17. [166]

    It would be relatively straightforward to work out a way in which these particular strawberries could have been transported into the store on a pallet jack and unloaded so as to avoid this particular accident to this particular plaintiff. However, the content of the duty of care and an assessment of whether it has been breached is not to be worked out in that way. The person who owes the relevant duty has an obligation to take reasonable care to avoid all such risks of harm arising from contact between a person and a pallet jack, not merely to avoid the one that ensued in the present case: see Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; 192 CLR 1 at [123] per Kirby J. The judgment required is a prospective one.

18. [167]

    This Court (Leeming JA (McColl and Basten JJA agreeing)) summarised the relevant principles in Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253 as follows:

19. [168]

    The requirement to take reasonable precautions against a risk of harm depends on the nature of the risk of harm and, to some extent, how broadly or narrowly it is defined. The presence of a pallet jack, wherever it was parked on the shop floor, posed a risk that a patron or employee might either trip over it or sustain injury as a result of some other contact with it. In the circumstances of the present case, the risk of harm can be more narrowly defined. The narrowest formulation of the risk of harm in the present case was that a pallet jack, which had been unloaded so that at least part of the prongs were exposed, posed a risk that someone might slip or trip over the exposed prongs between the space between the handle and the other boxes, since the exposed prongs were low to the ground.

20. [169]

    The precautions adopted by the appellant against that risk (and, indeed, the broader risk), as revealed by the evidence, were as follows:

    1. (1)

       the pallet jacket was parked so that it completely cut off access to the side lane while it was being unloaded (it being accepted that to cut off access partially could create a risk);

    2. (2)

       if there were two piles of boxes on the pallet jack, the boxes were unloaded first from the middle of the pallet jack so that the ends of the prongs were not exposed;

    3. (3)

       if there was only one pile of boxes on the pallet jack, the boxes were loaded onto the end furthest away from the handle so as not to expose the ends of the prongs;

    4. (4)

       the pallet jack had a prominent handle which was used to propel it and which also had the effect of alerting patrons and other employees to the existence and location of the pallet jack; and

    5. (5)

       the prongs of the pallet jack were dark, in contrast to the surface of the floor, which was light.

21. [170]

    The evidence established that the system which comprised those precautions was complied with in the instant case.

22. [171]

    The third particular of negligence, the placement of barriers, does not appear to have been pursued. The first and second particulars are largely, although not wholly, the same, since the position of the pallet jack does not pose a risk to anyone who knows, or ought to know, that it is there. Whether the risk that it posed was obvious is relevant to the requirements of reasonable care required; and the question whether the position of the pallet jack (so as to obstruct the side lane) was negligent.

23. [172]

    The term “obvious risk” is defined by s 5F of the Civil Liability Act as follows:

24. [173]

    In my view, the risk posed by the exposed prongs of the pallet jack would have been obvious to a reasonable person in the position of the respondent. The presence of the boxes on the prongs; the conspicuous handle; and the presence of Mr Tidmarsh who was transferring boxes of strawberries from the pallet jack to the counter, would all have alerted a reasonable person to the prongs of the pallet jack and their location.

25. [174]

    By reason of s 5H of the Civil Liability Act, the appellant was not obliged to warn the respondent of the risk of the exposed prongs since the risk was obvious. The respondent was presumed to be aware of an obvious risk, unless she proved, on the balance of probabilities that she was not aware of the risk: s 5G. The respondent admitted that she saw the boxes of strawberries before they had been moved to the counter. I am satisfied, having viewed the CCTV footage, that the respondent was aware of the strawberries on the pallet jack and ought to have been aware of the exposed prongs. Indeed, she saw Mr Tidmarsh unpacking strawberries from the pallet.

26. [175]

    However, even if the pallet jack constituted an obvious risk (in respect of which there was, accordingly, no duty to warn) it could still have been negligent, as the primary judge found it was, to leave the pallet jack parked in a position where it obstructed a side lane. There was a risk that patrons might still use the side lane as a short-cut, notwithstanding the presence of the pallet jack and the availability of other means of access

27. [176]

    I am not, however, persuaded that there was any negligence, as alleged. The pallet jack had to be parked somewhere (given the absence of an allegation of negligence in restocking merchandise during opening hours with pallet jacks). There is no reason to suppose that the risk of harm created by its being parked against a counter (which would necessarily have obstructed the wide aisle, although not the side lane) would have been less than that created by its being parked across a side lane. Although the respondent’s accident might not, in that event, have happened, the risk of other accidents might have been increased. On that scenario (the pallet jack being parked against the counter), Mr Tidmarsh would have been required to bend over the pallet jack in order to restock the counter and may have thereby been subjected to a greater risk of injury. Customers might also have been tempted, in that event, to reach over the pallet jack to retrieve goods from the counter against which it had been parked and might have been injured in the process.

28. [177]

    Since I am not persuaded that it was negligent of the appellant to park the pallet jack across the side lane (and there was no duty to warn of an obvious risk) I am not satisfied that there was any breach by the appellant of the duty of care that it owed to the respondent. It is to be remembered that the duty is not to make the appellant’s store as safe as human skill could possibly make it; the duty is only to take care which is reasonable in the circumstances (by taking reasonable precautions against the risk of harm): ss 5B and 5C of the Civil Liability Act.

29. [178]

    As to causation, I infer that the respondent lost her balance either because she deliberately intended to step onto, or over, the prongs of the pallet jack and misjudged her capacity to negotiate the pallet jack rather than walking around it; or because she momentarily forgot that the pallet jack was there. Of these two, I discount the second as being fanciful, as the CCTV showed that the respondent was inspecting the strawberries on the pallet jack shortly before (less than a minute) she stepped over or onto the prongs. The respondent’s loss of balance occasioned by her coming into contact with the pallet jack occurred because she was failing to take reasonable care for her own safety.

30. [179]

    The only act or omission which contributed to the respondent’s losing her balance was Mr Tidmarsh’s act of parking the pallet jack across the side lane between the counters. Had the act of parking the pallet jack been negligent, then the requirement for factual causation would have been fulfilled: s 5D(1)(a). The test in s 5D(1)(a) is no more than the “but for” test: Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182 at [18]. However, I do not consider this act to have been negligent for the reasons given above.

31. [180]

    For these reasons I am persuaded by the appellant’s submissions that the primary judge was in error and there should have been judgment for the appellant.

32. [181]

    In these circumstances, the assessment of contributory negligence does not need to be addressed since I regard the respondent as being responsible for the accident.

Damages

1. [182]

   For completeness I propose to address the damages grounds, although they do not arise in light of my reasons above.

2. [183]

   The assessment of non-economic loss is a discretionary judgment in respect of which this Court ought not intervene unless satisfied that there was an error in the exercise of the discretion such as to cause it to miscarry or that the result is so far outside reasonable bounds that the only conclusion is that there was a latent error: see the authorities referred to in Nemeth v Westfield Shopping Centre Co Management Pty Ltd [2013] NSWCA 298 at [11] (Meagher and Barrett JJA).

3. [184]

   I am satisfied that the primary judge’s assessment of non-economic loss falls into the latter category. The figure of 28% is, in my view, manifestly excessive. There was no finding that the respondent’s psychiatric condition was in any way related to the accident (which was not, in any event, claimed in the statement of the particulars). Indeed, the primary judge appears to have found (consistently with the medical reports) that the respondent’s presentation after the accident was largely consistent with her presentation beforehand.

4. [185]

   The contemporaneous records provided what I consider to have been the most reliable guide to the immediate and long-term effect of the accident. The respondent was an in-patient at Hunters Hill Private Hospital for, among other conditions, back and knee pain, from her admission on 20 June 2009 until her discharge on 5 July 2009. On 6 July 2009, the day after discharge, she presented to Mosman Private Hospital complaining of chronic back and leg pain for which she was prescribed Panadeine Forte. She returned to Hunters Hill Private Hospital as a day-patient at weekly intervals after her discharge. The evidence recorded her attendances on 13 July, 20 July and 24 July 2009. The clinical notes of Hunters Hill Private Hospital for the attendance on 24 July 2009 (two days after the accident) recorded:

5. [186]

   Her Honour referred to the medical evidence relied upon by each of the parties. Her Honour’s conclusions and findings are largely set out in [167]-[170] of the reasons. Paragraphs [167]-[169] have been set out in Simpson JA’s reasons. The primary judge continued at [170]:

6. [187]

   Dr Harbison (who examined the respondent at the request of the appellant’s solicitors), was not cross-examined. His opinion was regarded by the primary judge as “not all that dissimilar” to her findings. Dr Harbison recorded the history given that on 22 July 2009 the respondent sustained contusion of her right hand and both knees and possibly sustained a strain at her right shoulder and lumbar region. He opined:

7. [188]

   I do not regard the primary judge’s assessment of 28% as congruent with the her Honour’s findings and, in particular, with her substantial acceptance of Dr Harbison’s opinion. On the basis of the findings made by the primary judge, I am not satisfied that the respondent has established that the severity of her non-economic loss is equal to or greater than 15%. Accordingly, the respondent is not entitled to damages for non-economic loss: s 16 of the Civil Liability Act.

8. [189]

   The primary judge assessed future out-of-pocket expenses at $50,000. Her Honour’s reasons for the award were, at [175]:

9. [190]

   In light of her Honour’s findings, it is difficult to discern any basis for the award. None is revealed in the reasons for decision. The hearing at first instance took place almost five years after the accident. There was no claim for past out-of-pocket expenses. I am satisfied that her Honour was in error in allowing any amount for future out-of-pocket expenses and that the award ought be set aside.

10. [191]

    The difficulties of assessing damages for future domestic assistance were substantial. Although the respondent alleged that she had received past assistance gratuitously, no detail was provided as to when, how much, by whom or for what duties such assistance had been provided. Accordingly, the details of what occurred in the period of almost five years between the accident and the hearing were not revealed by the evidence. The primary judge gave reasons for the award of a buffer of $20,000 for future commercial domestic assistance as follows:

11. [192]

    The balance of probabilities is the relevant standard of proof. The respondent bore the onus. It was not enough for her to show that it was possible that the accident at the appellant’s store might cause her to require additional domestic care in the future. She was obliged to prove that it would probably cause such a further requirement: s 5E. The primary judge was satisfied only that it was a possibility, not a probability, as her Honour’s reasons, extracted above, indicate. Her Honour did not make the award on the basis that the appellant had failed to disentangle the effects of the accident from the effects of the respondent’s many pre-existing conditions, even if the principle in Purkess v Crittenden (1965) 114 CLR 164 still applies notwithstanding the terms of s 5E.

12. [193]

    Where there is an established need for domestic assistance, which has been provided gratuitously as at the date of hearing, the judge is entitled to assess damages for the future on the footing that there is a real (not fanciful) prospect that the assistance will have to be provided commercially at some stage in the future. In Miller v Galderisi [2009] NSWCA 353 the Court of Appeal (Allsop P, Basten and Macfarlan JJA) said:

13. [194]

    In the present case, the respondent failed to establish a need for domestic assistance resulting from the accident. There was insufficient evidence for the primary judge to determine what, if any, domestic assistance, had been provided either before the accident; or in the period from the accident to the hearing; or what might be provided in the future. In these circumstances the primary judge was not entitled, having regard to her Honour’s reasons set out above, to make any award for future commercial domestic assistance. The award ought be set aside.

Proposed orders

1. [195]

   For the foregoing reasons I would propose the following orders:

   1. (1)

      Appeal allowed.

   2. (2)

      Set aside the judgment of Norton DCJ ordered on 22 October 2014 and, in lieu thereof, order judgment for the defendant.

2. [196]

   Subject to a written application being made to the presiding judge within seven days hereof, set aside the order for costs made by Norton DCJ and order the respondent/ plaintiff to pay the appellant’s/ defendant’s costs of the trial and of the appeal.