Rasic v Cruz

MEAGHER JA: This is a most extraordinary case. It is an appeal by a disappointed plaintiff from a judgment of his Honour Judge George AJA, a not uncommon procedure. But what makes it extraordinary is that, it is difficult to understand quite what the facts of the case were. Certainly one cannot do so from a perusal of his Honour’s judgment. It is necessary to reconstruct them from a perusal of counsels’ submissions. I shall set out what they seem to be.

The appellant is a 42 year old lady who went shopping in a sort of small super-market run by the two defendants (now respondents), a husband and wife. She was accompanied by her husband and his mother. By the time she had completed making her purchases and was edging her trolley, which seems to have been fully laden, towards the cashier’s counter, an accident occurred. She moved backwards, in order to permit two other trolley-pushing customers to pass her. We do not know the space of the aisle between the cashier and a round food stand, but it was in that aisle that she manoeuvred herself backwards. In so doing she collided with a plastic (or perhaps tin) bag-dispenser which was affixed to the round stand, jutting into the aisle.

His Honour held that the projecting dispenser did create a risk of injury to persons in the appellants position. This must have been apparent to the defendants (respondents). Despite many ambiguities in his Honours language, this necessarily, so it seems to me, involves a duty of care owed by the respondents to the appellant.

However his Honour seems to have concluded that there was no breach of that duty. In so doing his Honour seems to have relied on two arguments: (a) There are many cases when a customer is likely to walk backwards in a shop without any sensible chance of injury, and (b) the facts in this case resembled those in Dailley v Spot-On Investments Pty Ltd (1995)Aust, Torts Reports 81-363 . Neither argument seems to me to be decisive. As to (a), other cases, other circumstances. That there are many cases in which it would be plainly silly for persons in the respondents’ position to take steps to ensure that patrons walking backwards do not injure themselves does not mean that they should not take such steps in this case. After all, in this case but not in every case, such a patron might bump into a jutting dispenser, about which the respondent knew; and if he did, he might do himself serious injury, a fact which they also knew. Moreover, as was readily conceded by the respondents’ counsel on this appeal, it would have been a simple and inexpensive matter to eliminate the danger (by using dispensers which hang downwards rather than jutting outwards, for example). As far as (b) is concerned, the plaintiff in Dailley’s case walked into a stand which was in front of her, and stared her in the face.

To my mind, the appellant made out a case of breach of duty.

That leaves the question of damages. The plaintiff (appellant) set out to prove what might be described as the usual list of about 20 injuries and disabilities which plaintiffs customarily allege. On almost every point the judge disbelieved the plaintiff. He was certainly entitled to. Films testified to her ability to do most of the things she said she was not able to. In her particulars and other written documents supplied by her solicitors, she made it plain she was alleging that the point of impact was “at belt level”. However, his Honour accepted (as he had every right to do) that the point of impact was a little lower down, on the right buttock. The respondents certainly accepted that there was a contusive injury to the right buttock. Insofar as one can gather from the transcript, and, from his Honour’s reasons for judgment, as to what course the trial took, much energy was spent in discussing where initial bruising occurred, and whether there was any injury to the back.

His Honour accepted the evidence that the initial impact was to the right buttock. That is a finding which can not be disturbed. However, his Honour seems to have deduced from this fact that no injury to her lower back occurred. This would not only be illogical, but (in my view) contrary to the evidence as well.

Dr Marinkovich, the plaintiff’s general practitioner, in his clinical notes of 17 May 1988, one day after the accident, in addition to finding some bruising to her right buttock, noted: “Jerked her body, felt sharp pain in her back”. “On examination tender lumbosacral spine and surrounding muscles.” On 15th January 1991, he again noted that “there was tenderness along her lumbo-sacral spine together with the surrounding paravetabral muscles.” On 28 April 1997 Dr R F Wallace reported “I believe this lady has suffered musculoligamentous strain at her lumbar spine and disc protrusion at her L5-S1 level as a result of injury sustained whilst shopping at Cabramatta on 16 May 1988.” Dr P J Barker one of the respondents’ doctors, said, in his letter of 16 January 1996, “The history indicates that she backed into a metal fitting on a display table, apparently causing bruising and contusion at her upper mid-sacral region. Fortunately no laceration occurred ”. And Dr Shultz, another of the respondents’ doctors, on 28 January 1997, stated: “It is possible that she had a bruise to her buttock; and it is possible that she had a strain to her lower back; but one would normally expect symptoms of a bruise to settle within weeks and a strain to the lower back, probably no more than a muscular or ligamentous nature, to recover within a period of weeks to perhaps 2-3 months”.

It would seem, therefore, quite certain that the appellant suffered some injury to both her lower back and to her right buttock, but, particularly in light of his Honour’s unflattering findings as to her credibility these injuries must be taken to be of the mildest nature.

It is worrying that, since 10 years elapsed between accident and hearing, a comparable delay might occur if we remitted the case to the District Court for a rehearing. This is particularly worrying where the appellant’s case must be considered trifling.

In my view, therefore, the following orders should be made: 1 Appeal upheld. 2 Verdict and orders below set aside. 3. In lieu thereof a verdict for the appellant be entered in the sum of $3000. 4. Order that the respondents pay the appellants cost of the trial and also of this appeal, but to have a certificate under the Suitors’ Fund Act in respect of the latter.

BEAZLEY JA: I have had the opportunity of reading in draft the judgment of Meagher JA.

I agree with his Honour’s opinion that the trial judge erred in finding there was no breach of duty so that there should have been a verdict for the plaintiff/appellant.

I do not agree, however, with his Honour’s approach as to the assessment of damages.

The evidence as to the appellant’s injuries was as follows. The appellant said that she was near the cash register, but stepped back to allow others through and as she stepped back she hit herself on the “sharp metal which holds these bags and I was in a shock” . Her husband said “as soon as she hit the thing I heard a scream” .

She went to her local doctor, Dr Marinkovich, the next day. She gave a history of her back having hit “some hard plastic which was sticking out from a round fruit stand. She jerked her body and felt a sharp pain in her back and at the site where she hit the plastic” (emphasis added). At the time of examination she was complaining of low back pain, right buttock pain and an inability to walk, sit or stand for long periods. On examination Dr Marinkovich found: “there was tenderness along her lumbo-sacral spine together with the surrounding paravertebral muscles. There was rigidity more on the right than the left side, and tenderness over the right buttock especially the lateral side where there was swelling, soft tissue bruising and redness approximately three inches in diameter.”

He was of the opinion that: “[the appellant] sustained contusion to her right buttock with soft tissue injuries and bruising. The impact caused a sudden and severe jerk of her lower lumbo-sacral spine resulting in a musculo-ligamentous strain and the possibility of a disc lesion.”

The history, complaints and findings on examination are consistent with the description the appellant gave of the manner in which her injury occurred, save for one matter upon which I should comment. In cross-examination, the appellant pointed to the spot where the prong stuck her back. This was identified by counsel as at “the belt line” . The appellant had indicated a similar spot to one of the respondent’s doctors.

The appellant was referred to Dr Bannister, orthopaedic surgeon who considered she had symptoms suggestive of sciatica and it was most likely she had disc pathology. Dr Wallace orthopaedic surgeon also noted that CT examination of her lumbar spine showed a minor disc bulge at L5/S1. He was of the opinion she had: “… suffered musculoligamentous strain at her lumbar spine and disc protusion at the L5-S1 level as a result of injury sustained whilst shopping at Cabramatta on 16th May, 1988. Her injury is consistent with the mechanism described of a hyperextension injury at her lumbar spine.

He believed: “symptoms will persist despite further conservative treatment.”

The appellant was also seen by Dr Morse psychiatrist who considered her to be suffering from pain disorder and major depression. He dated the onset of her depressed state to soon after the accident because the appellant had presented to her general practitioner with “anxiety, depression and crying everyday” . He was reinforced in this view because her estranged husband said that prior to the accident she had been an energetic person and had not suffered from any emotional disorder. He acknowledged that she tended to exaggerate her physical symptoms. He attributed this to the fact that she was being disbelieved and was trying to emphasise the seriousness of her condition.

The respondent’s medical evidence was that of two surgeons, Dr Burke and Dr Schutz. Dr Schutz was of the opinion that it was possible the appellant had a bruise to the buttock and possible that she had a strain to the lower back, the symptoms of which he believed should have resolved in a short period. He thought the slight annular bulging of L5-S1 was degenerative, as was the hypertrophy in the facet joints at L5-S1. He did not know if there was a psychiatric problem.

Dr Burke considered she had no ongoing effects from the accident and no organic bases for her current physical symptoms.

The respondent did not adduce any psychiatric evidence.

Notwithstanding this medical evidence his Honour said: “… I am not satisfied I have any or any sufficient evidence upon which to base a judgment as to damages.”

In addition, his Honour failed to make any distinction between the orthopaedic and psychiatric medical evidence. The only psychiatric evidence was called by the appellant and supported her case. His Honour was not required to accept that evidence merely because it was the only evidence on the issue. However, if he did not accept it he should have said so and given his reasons for rejecting it.

That conclusion is erroneous. Medical evidence as to the appellant’s physical and psychiatric injuries and disabilities was adduced by the appellant. Medical evidence as to her physical injuries was adduced by the respondent. The evidence was conflicting, but that is not unusual in cases of this kind. And, admittedly the trial judge was not assisted by the failure of either party to call any of the medical practitioners to give oral evidence or for any to attend for cross-examination. Regrettably, that is also an often encountered scenario in cases of this type and one which makes the trial judge’s determination particularly difficult where the doctors express almost diametrically opposed views, as occurred here. But those difficulties did not relieve his Honour from his judicial task of considering all of the evidence and making the best determination he could based on that evidence. That judicial task required him to determine which medical evidence he preferred. It follows that his Honour erred in failing to make a determination on the medical evidence. The question then arises whether this Court should assess damages or whether the matter should be remitted for a new trial. That question involves further consideration of his Honour’s judgment.

Notwithstanding that his Honour found that there was no or no sufficient medical evidence to enable him to make a finding in relation to damages, he further concluded that he did not accept the appellant’s evidence as to constant and unremitting pain. His Honour’s conclusion was essentially based upon an adverse finding as to the appellant’s credit. In the usual case where a plaintiff’s credit is in issue, this Court is not in a position to assess damages. I do not think there is anything in this case which takes it outside the usual case and the matter should be remitted for retrial.

I wish however to make some observations as to the findings of credit in this case. A trial judge’s finding as to credit carries great weight. But it is not immune from challenge: Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 160 ALR 588. In the present case, I consider his Honour’s finding as to credit to be overly simplistic. There are two areas in particular where this is so. The first relates to his finding in the early part of the judgment that the appellant’s evidence that the prong hit at the level of the belt line was inconsistent with the history given to the doctor the day following the accident. The second relates to her evidence of constant and unremitting pain.

The contemporaneous medical evidence of the appellant’s medical practitioner was that there was bruising and swelling lower down on the buttock, thus indicating a point of contact lower than the belt line. This discrepancy was one of the matters relied upon by the respondent to attack the appellant’s credit. It was legitimate for the respondent to pursue that matter. It was also one of the matters relied upon by his Honour to reach the conclusion that the “matters and injuries complained of ...[did not arise] in the manner in which the plaintiff alleges”. Such a finding was open to his Honour, provided that it was a finding made after a consideration of all of the evidence and after assessing particular aspects of evidence in the context of the whole of the evidence.

In this case, the appellant was being cross-examined years after the accident. Her significant ongoing injury was not at the site of the bruising, but at the site where she felt pain in her back at the time of injury which her general practitioner attributed to a backward jerking motion. (I have referred to this evidence in paras 5 and 6, but the significance of the distinction drawn to the attention of the doctor the day after the accident appears to have eluded his Honour.) In my opinion, her overall credibility should have been assessed taking into account that factor as well as the possibility of error in her memory or even a later although erroneous identification of the site of impact.

It was also possible that the appellant intentionally wrongly identified the site of impact so as to correspond with the site of ongoing pain. That of itself would not disentitle the appellant to a verdict. The court does not condone fabrication. However, in this case, the appellant’s account, even if found to have been deliberately wrongful, had to be assessed in light of the psychiatric evidence which provided an explanation of the appellant’s exaggeration. His Honour was not, of course, required to accept the psychiatric evidence, but he was required to consider it. As I have already indicated, there is nothing in the judgment which suggests that he did so.

In my opinion, his Honour failed to give proper consideration to the medical evidence including the psychiatric evidence and the appellant is entitled to a new trial on damages.

I would therefore propose the following orders: (i) Appeal allowed. (ii) Verdict and judgment of the trial judge set aside. (iii) Judgment for the appellant for damages to be assessed. (iv) Matter remitted to the District Court accordingly. (v) The respondent to pay the appellant’s costs of the appeal, but to have, if qualified, a certificate under the Suitor’s Fund Act 1951 (NSW).

FITZGERALD JA: The appellant was injured in the respondents’ suburban shop, “Vincent’s Fruit Shop” in Cabramatta. On her version of events, the appellant approached a cash register with a full trolley but her mother-in-law, who was with her, wanted to obtain more produce. In order to allow other customers to precede her to the cash register, the appellant “ pushed the whole trolley with the whole strength in me, stepped backwards and hit myself” on an empty plastic bag dispenser. A doctor whom she consulted on the following day observed a bruise “on” or “over” the appellant’s right buttock.

Understandably, when her evidence is considered, the trial judge regarded the appellant as an unreliable witness. Her patently exaggerated claim sought hundreds of thousands of damages for physical and psychological injuries, including a large amount for alleged economic loss. Her evidence and various pre-trial accounts revealed numerous inconsistencies.

There was room for two trolleys to pass in the material section of the shop. The plastic bag dispenser was fixed, at about the appellant’s waist height, to a shelf on which fruit was displayed. The dispenser was clearly visible, although of course not to someone walking backwards, without first looking behind.

The appellant’s case on liability depended on a report by a “forensic engineer”, who had not inspected the area prior to trial, and whose description of it was in a critical respect inconsistent with the evidence of the appellant’s husband, whom the trial judge accepted as a “frank witness”.

The forensic engineer’s opinion that the plastic bag dispenser was a “foreseeable hazard”, although apparently only when “empty of plastic bags”, seemed to be dependent upon his erroneous estimates of the width of the aisle and the distance to which the plastic bag dispenser protruded.

Although the respondents’ real fault in the eyes of the forensic engineer seemed to be their omission to refill the plastic bag dispenser before the appellant bumped into it, he suggested other possible locations for the dispenser.

Those suggestions are interesting, but of little relevance. The respondents were entitled to place the plastic bag dispenser where they chose, provided that its position was consistent with their duty of care to its customers, most of whom no doubt ordinarily walk forward with their eyes open. The world is full of “foreseeable hazards” for people who do otherwise.

A shopkeeper owes a duty of care even to careless customers. However, a duty of care is not a general duty to protect careless people from the consequences of their own carelessness. The test of reasonable care is not whether the safety of the shop could be improved.

An infinite variety of circumstances produce a foreseeable risk of injury which could often be eliminated or reduced. The current tendency to consider only individual circumstances which produce injury and the means by which those circumstances could have been changed and the injury avoided is redefining the foundation of the law of negligence by impermissibly expanding the content of the duty of care from a duty to take reasonable care to a duty to avoid any risk by all reasonably affordable means. Such an approach pays insufficient regard to the degree of the risk of injury from the particular circumstance which caused injury and to the time, effort and cost of avoiding the risk of injury from all circumstances which might have caused injury and the financial capacity of a defendant to undertake such a task. A situation immune from criticism by an imaginative forensic engineer cannot be achieved by the removal of isolated risks but necessitates the removal of all sources of risk.

The point can be illustrated by reference to fruit shops, which commonly have cabinets with doors with protruding handles, which could be recessed, and perhaps glass panels, which could be laminated plastic, shelves with jutting edges, which could be removed, boxes of produce extending into the public floor area, which could be put away, and uneven floors, which could be levelled. Perhaps a forensic engineer could design a shop in which customers could walk backwards or with their eyes closed without any risk of injury. However, premises which do not meet that requirement are not for that reason unsafe, and a shopkeeper has not, for that reason, breached his or her duty of care to a customer who is injured walking backwards.

Ridiculous and exaggerated claims, sometimes followed by appeals when they are unsuccessful, are increasingly frequent. Employers, motorists, hospitals and schools, for example, or rather their insurers, have become virtual insurers of those who are injured by their activities. There might be good policy reasons for this. However, unless its evolution is appropriately controlled by judicial commonsense, fundamental concepts will be incrementally eroded and the law of negligence will eventually require each citizen to make life a risk-free activity for everyone else.

In my opinion, the point at which suburban shopkeepers must design their premises to avoid the risk of injury from plainly visible, ordinary objects to customers who move backwards without first looking has not yet been reached.

The trial judge found that the respondents did not breach their duty of care. I agree.

I would dismiss the appeal with costs.

However, the other members of the Court consider that the appeal should be allowed and the judgment for the respondent set aside, but disagree on the other orders to be made. Regrettably, I do not think that this Court can properly assess damages.

Accordingly, in my opinion, since the appeal is to be allowed, the orders made should be those proposed by Beazley JA.