Thompson v Woolworths[2003] QDC 152

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               DISTRICT COURT OF QUEENSLAND

1. [1]
   The plaintiff was born on 3 March 1952.

2. [2]
   The defendant is the occupier of the land and the premises situated at the corner of Locke and High Streets, Stanthorpe known as Woolworths (“the shopping complex”).

3. [3]
   The plaintiff claims that in late August 1999 the plaintiff was delivering bread to the defendant at the shopping complex. At the time there were two large industrial bins (the bins) left in front of a loading dock (the dock) at the shopping complex, blocking the access for the plaintiff’s truck to the loading dock. As the plaintiff pushed one of the bins in front of the dock towards the latticed area next to the dock the plaintiff injured her back.

4. [4]
   In March 1998 the plaintiff entered into a written agreement with Cobbity Farm Bakeries Pty Ltd which granted the plaintiff a licence to sell and/or deliver bread to Cobbity Farm Bakeries Pty Ltd’s customers (the vendorship). One of those customers was the defendant.

5. [5]
   The plaintiff’s evidence was that when she first commenced the vendorship she would deliver bread to the defendant at about 6 or 6.30 a.m. About five or six weeks into the vendorship the defendant’s storeman Mr Frank Thompson asked the plaintiff and her husband if the plaintiff and her husband would be able to change their delivery time to some time between 5 and 5.30 a.m. The plaintiff and her husband agreed to do that.

6. [6]
   The plaintiff said her usual method of unloading the bread at the shopping complex was to reverse her truck along a laneway that led to the dock. On some mornings the bins were on the laneway. This prevented the plaintiff from reversing her truck along the laneway to the dock. When this occurred the plaintiff would move the bins out of her way in order to be able to back her truck on to the dock. The plaintiff’s husband (Mr Thompson) who was making deliveries of bread to other places would try to arrive at the shopping complex in time to help the plaintiff move the bins. The plaintiff said she moved the bins about 20 or 30 times herself. Usually the plaintiff had the assistance of her husband to move them. The plaintiff also received assistance from Mr Frank Thompson to move the bins. On the occasions Mr Frank Thompson assisted the plaintiff he would either assist the plaintiff or just move them himself. Mr Frank Thompson did not tell her not to under any circumstances move the bins. Further, Mr Frank Thompson had not told her she was to always call for the assistance of an employee of the defendant to move the bins. The plaintiff said no one ever told her whose place it was to move the bins. She did not know whether it was the Council’s responsibility after it emptied the bins or whether it was the defendant’s responsibility. The plaintiff said she did not know whose place it was to do it. Further, Mr Frank Thompson never told her it was the defendant’s responsibility nor whose place it was to push the bins in. The plaintiff said when cross examined no one ever told her not to move the bins.

7. [7]
   Mr. Frank Thompson, the defendant’s storeman gave evidence. He said that the bins were the property of the Stanthorpe Shire Council (“the Council”). The Council emptied the bins every Monday, Wednesday and Friday. The bins were usually located in a latticed area adjacent to the dock. The bins were emptied mechanically by the Council’s truck. The Council’s truck could arrive between 4 a.m. and 6 a.m. or if there were deliveries in the way, the Council truck would return later. The Council workers took the bins from the latticed area and the bins would be picked up by the Council truck and emptied into the truck. The Council workers would then place the bins in front of the dock. The Council workers would not put the bins back into the latticed area. The defendant did not have any warning or schedule from the Council when the Council truck would arrive. When asked whose job it was to move the bins back into the latticed area he said if he saw the bins in that position he would move them. He said a bread vendor, Mr. Rex Bates, arrived before 5 a.m. If the bins were in that position then Mr. Bates would move the bins to put his bread up on the loading dock. When asked who would move the bins if Mr. Bates was not there he said if he heard them (by which I took him to mean the Council truck) he would lift the roller door and push the bins back. He said he could also hear the delivery trucks reversing back. He said as soon as he became aware the bins had been emptied he would finish off anything he was doing inside the store, raise the roller door, have a look if the bins were there and push the bins back in.

8. [8]
   The general features of the dock area are shown in photographs tendered in evidence.

9. [9]
   The defendant’s store is incorporated in the shopping complex. Access to the defendant’s store for the delivery of goods can be made from the dock located at the end of the laneway. Adjacent to the laneway is an area in which the two industrial bins could be placed (the latticed area). In the dock area there is a ladder that allows access from the laneway on to the dock. There is also a buzzer on the wall of the dock area. This buzzer could be activated to summons an employee from inside the store to attend at the dock area. Access to the store could be gained from the dock through a doorway with a roller door. There was no dispute that in the early hours of the morning the roller door would usually be down.

10. [10]
    The plaintiff said that late in August 1999 she arrived at the shopping complex at about 5.15 or 5.20 in the morning. There was no other person present. The roller door leading from the dock into the storeroom was down. No one came out to greet her. The bins were about 20 feet out from the dock. The plaintiff reversed her truck in just enough so that another truck could not get in before her. The plaintiff then moved the first bin down the laneway. The plaintiff then went around to the end of the bin to push it into the latticed area. She attempted to push the bin with her hands against it and her weight but she could not budge it. She had her hands on the top and her leg up on the little ridge part on the end of the bin and she was attempting to give it a bit of a jostle to try and make it move. At that point she was still not able to budge the bin and as she pushed against the bin she had a pain rip down her back and leg.

11. [11]
    The plaintiff said that about a week or two before this incident she was attempting to lift a crate of bread off the top of a dolly down on to the ground in the shed at her home. She was twisting to bring the crate down and she had a pain down her back. This settled down over the next few days and it was fine. The plaintiff said she had not experienced pain radiating down into her left leg before the occasion she hurt her back at the shopping complex.

12. [12]
    The plaintiff identified the bin she was moving at the time she hurt her back from photographs tendered in evidence. Mr McDougall a consulting engineer gave evidence of seeing the photographs of the bin identified by the plaintiff from the photographs tendered in evidence. Mr McDougall’s evidence was that the bin had dimensions of approximately 1800 millimetres in length, 1350 millimetres in width and 1250 millimetres in height (1450 millimetres high including wheels). The bin was supported upon 4 x 150 millimetre diameter cast iron castor wheels. The bin has two steel top lids which are hinged on a long edge. He assumed a 3 millimetre wall thickness. In his opinion the weight of the bin was in excess of 350 kilograms. Mr McDougall’s evidence in this respect was not disputed at the trial and no other evidence was given by any other witness to dispute his evidence. Mr McDougall said from his expertise the bin looked consistent with that weight.

13. [13]
    The plaintiff spoke well of Mr Frank Thompson. She said in her mind he always made himself available. If he came out and she was moving the bins, he would come down and proceed to do it himself. She described him as “a very big bloke”. That accords with my observation of Mr Frank Thompson. The plaintiff said he would mostly just take over and do it himself and she would just be standing there. There would be the odd occasion when he was not there when the roller door was closed and the plaintiff would do it herself because he was not there. The plaintiff said Mr Frank Thompson would usually, if he was on duty, emerge from the store at the time the plaintiff arrived.

14. [14]
    The plaintiff said her husband complained to Mr Frank Thompson about the bins. She was present when this occurred. Her husband told Mr Frank Thompson that the bins should not be moved by people and should not be manually handled. Her husband told him the way they were designed they should be moved by the trucks. Further, the plaintiff should not be moving the bins and even the defendant’s staff should not have to be moving the bins because they were not meant to be moved by people. The plaintiff said Mr Frank Thompson agreed that the plaintiff should not have been moving the bins.

15. [15]
    When Mr Frank Thompson gave evidence he said he recollected an occasion the plaintiff appeared like she was going to push one of the bins and he told her not to touch it. He then moved the bin behind the latticed area. He agreed that Mr Thompson had made a complaint about the industrial bins. He said the complaint was in terms of the bins being in front of the dock. He recalled that he said he would see the manager, Mr Chris Dailey about it. He thought he had seen Mr Dailey about it. He could not recall when this occurred nor what he may have said to Mr Dailey. He agreed that Mr Thomson may have said more about the bin than just the bin being in front of the dock but he could not remember. He agreed that Mr Thompson may have said this on more than one occasion and recalled Mr Thompson said that he would go and see the Council about the bins.

16. [16]
    When the plaintiff’s husband, Mr Thompson, gave evidence he said he had complained to Mr Frank Thompson about the bins on about 20 or 30 occasions. Mr Frank Thompson denied that it would have been that many occasions. However, he agreed it would have been a few occasions. Mr Frank Thompson denied that the plaintiff’s husband ever indicated to him that the plaintiff was pushing the bins or that the plaintiff’s husband was pushing the bins.

17. [17]
    Mr Thompson said he did complain to Mr Chris Dailey. Mr Dailey was at the time the second in charge at the defendant’s Stanthorpe store. Mr Thompson said he recalled three specific occasions he spoke to Mr Dailey. He told Mr Dailey on one occasion that his wife had to move the bins by herself on a couple of occasions. Further, he had to get there sometimes and help her. He said Mr Dailey responded “Oh, don’t worry about it” and he had a smile on his face at that stage, he thought it was a joke and he said “Oh, I’ll speak to the boys about it”. On another occasion which was in May 1999 he stated his case to Mr Dailey firmly. He complained to Mr Dailey about the crates not being stacked up in proper order for his wife and that no one was coming to help her shift the industrial bins. He told Mr Dailey they were too heavy and that Mr Dailey replied “Yes, I realise they’re heavy”. He told Mr Dailey that the bins were designed to be mechanically moved and at that time they were being moved manually. He told Mr Dailey the defendant’s staff were doing it manually and his wife was doing it manually. He told Mr Dailey that if someone hurt themselves Mr Dailey would be in trouble. He said the response from Mr Dailey was that he would make sure the boys assisted his wife shifting the bins. The third occasion he complained was in early August 1999. He said he and his wife were still not getting the response they desired. On this third occasion he complained again about the state of the crates not being stacked up and coming out in different colours. He also complained about the bins. He said to Mr Dailey that no one was trying to assist the plaintiff and himself. He said Mr Dailey turned to him and was quite agitated and said “Look, I’ll fix it. I’ll fix it”. However, notwithstanding his complaint Mr Thompson said that the process of having to move the bins manually continued.

18. [18]
    When Mr Dailey gave evidence he said he did recall speaking to Mr Thompson on one occasion when he made a complaint to him about the bins. He said the complaint was mainly that the bins were in the road when they came to deliver the bread. He said Mr Thompson had said that the bins were in the road and was there any way that Mr Dailey could change the time that they were emptied or change the way that they were emptied. Mr Dailey accepted that he did not tell the plaintiff and her husband they were not to move the bins.

19. [19]
    Although the plaintiff and her husband spoke well of Mr Frank Thompson, the same could not be said about how they spoke of the defendant’s employee, Mr Bradley Bennett. The plaintiff said that Mr Bennett never once came and helped her move the bins. There was an occasion she was trying to move a bin herself and Mr Bennett was sweeping the dock. The plaintiff was in full view of Mr Bennett. Her husband arrived and loudly said “What the bloody hell are you doing moving those bins when Brad’s up there sweeping”. The plaintiff asked her husband to be quiet because she did not want to upset Mr Bennett because he would make things harder for her. She said Mr Bennett just disappeared back into the storeroom. The plaintiff said that Mr Bennett was not very co-operative when she dealt with him with respect to the bread deliveries generally. The plaintiff also said Mr Bennett was on duty regularly as the storeman and denied he was on duty working on the dock area for only about four weeks in August 1999.

20. [20]
    Regarding the use of the buzzer to summons an employee of the defendant to attend at the loading dock area the plaintiff said when she commenced the business she pushed the buzzer. However, her experience was the roller door would remain in the down position and notwithstanding the noise from the truck reversing and the unloading noise and the pressing of the buzzer it was obvious to her that Mr Bennett was inside sweeping and everything would go quiet and she would still be waiting. She found it was pointless trying to push the buzzer for service. Her experience was that it would have been at least 10 minutes before Mr Bennett would emerge. She used the buzzer on two or three occasions in the early part of the vendorship but stopped using it because help was not forthcoming. When the plaintiff was cross-examined she said the employees of the defendant took too long to respond and took a good ten minutes or more. Mr Thompson said in his experience it took between ten and fifteen minutes for a response when he had used the buzzer.

21. [21]
    When Mr Frank Thompson gave evidence he at first said he would go “pretty close” to straightaway every time the buzzer rang. When he was asked if he kept anyone waiting for say ten minutes or more he denied keeping any one waiting for ten minutes or more and said if he heard the buzzer he went straightaway. Mr Bennett, when he gave evidence, said he responded to the buzzer within a five minute time frame. He said he did not keep anyone deliberately waiting. He said in some circumstances he could have kept people waiting. An example was if he did not hear the bell over the noise of the cleaners.

22. [22]
    Mr Wilson gave evidence. He delivered bread to the store for Tip Top Bakeries. He usually arrived at about 5 am in the summer time and sometimes in winter it was about 6 am. When he arrived he sometimes found a bin in the way. He would back up as far as he could and jump out and physically shift the bin. He would push the bin down towards the loading dock and push it behind the latticework. No one from the defendant attempted to assist him. He sometimes became annoyed at having to shift it. He discussed it a couple of times with Mr Frank Thompson. He asked whose responsibility it was to shift it and he did not receive a response from Mr Frank Thompson. The reason he complained was that he could be tired and cranky and if the bin was in the way it would hold him up. He had other deliveries to make to be able to finish his work for the day. He is a man who is 6 foot tall and weighed 12 stone at the time. He sometimes found some difficulty moving the bin if there was rubbish on the ground that could block the wheels and it would have to be given a good push. Generally he thought it was relatively easy to shift the bins. He agreed when cross examined he shifted the bins for his own convenience. He agreed that if he pressed the buzzer Mr Thompson would respond if he was not busy. As to how long he might be kept waiting he said it all depended upon what the storeperson was doing. He agreed that to avoid having to shift the bin himself he could have pressed the buzzer and got the storeperson to move it back into position. However, he said if you were running late most of the time you would get out and shift it yourself because it should be shifted. He knew he could wait and have the storeperson do it. However, he said “We could have sat and waited, I suppose”. He said the reason he did not summons the storeperson was that it was something he never worried about because the storeperson would take time to get there. He said no one from the defendant’s store told him that he was not to shift the bins.

23. [23]
    Mr Shatte also gave evidence. He delivered milk to the store usually between 8 and 8.30 am. It was his experience that he would go up on the dock and ring the buzzer and someone would sing out “Who is it?” and he would respond. The person inside would say “We will be out with you to unload the milk. We will be two seconds”. Sometimes the person would say “We’re busy at the moment, if you want to start unloading you can, but we will be a couple of minutes. We’re just clearing the coldroom out to make room for the milk”. He recalled a couple of occasions the bins being on the laneway and being in the road. He would not shift them because he did not consider it was his job. He used to say to the storeperson to shift the bins so that he could back in and get unloaded. Most of the times the storepersons would shift them but he found it just as convenient for him to shift the bins. He said that Mr Frank Thompson had said “That’s our job” and he replied “Look, I don’t want to be here all bloody day. I’ve got milk to unload” and Mr Shatte would say “Do you mind if I just shift them out of the way”. He said sometimes the storeperson would not know that the bins were in the way and Mr Shatte would just shift them himself anyway so that he could get in there and get unloaded. He recalled that on a couple of occasions the defendant’s employees would tell him when he was moving the bins “That’s our job to shift them”. At one stage in his evidence he said he did not find it an easy task to shift the bins. Later in his evidence he agreed it was an easy task for him. He is 5 foot 9 inches tall and weighs 70 kilograms. However, he described himself as fairly fit for a person shifting 500 crates of milk every morning. In cross examination he agreed that the storepersons probably told him they were there to move the bins out of the way and that when he moved the bins he had their permission. He found the responses of the storepersons including Mr Bennett to be good. He said sometimes he had to wait but the storepersons were probably busy on those occasions and they would sing out “Look, we’ll be five minutes or ten minutes”.

24. [24]
    Mr Rex Bates gave evidence. He said he would arrive between 4.45 am and 5 am. He found the bins were in the way and he would just shove them out of the road and back up and unload the bread on to the dollies. He would move them out of the way because it was convenient for him to do so as he had other work to do. He said he did not think it was his responsibility to move the bins. He found the response from the storepersons including Mr. Bennett to be good. He did not find it necessary to use the buzzer and there was no occasion that he was kept waiting. He said Mr Frank Thompson and Mr Bennett would give him assistance to shift the bins on some occasions.

25. [25]
    Mr Bates’ wife, Maureen Bates also gave evidence. She found the response from the storepersons to the arrival of the bread deliveries made by her husband to be from instant up to ten minutes. She found no difference between Mr Frank Thompson and Mr Bennett in terms of their co-operation. She found them co-operative at all times. She had no problems with making deliveries and could not recall any specific occasion of any difficulty getting the attention of the storeperson inside the store.

26. [26]
    When Mr Frank Thompson gave evidence he also said as far as he was concerned when he told the plaintiff not to touch the bins on the occasion he saw her commencing to do so he meant she was never to do it. With respect to his conversation with Mr Thompson about the bins he said that he took what he was complaining about was that the bins were in the way and not that he was unhappy that his wife was shifting the bins. With respect to his evidence that he told the plaintiff not to touch the bins he said his reason for doing so was that she was a lady and he thought it was up to him to do it. He did not think it was appropriate for her to push them. I asked him if the person pushing the bins was a male would he allow the male to go ahead and push them. He said “I – I don’t know. Don’t know how to answer that”. He denied he told the plaintiff and her husband to make their delivery of the bread between 5 and 5.30 a.m. He was on holidays between 26 July 1999 and 20 August 1999.

27. [27]
    Mr Bennett also said in his evidence Mr Frank Thompson was the main storeman for the defendant. Mr Bennett relieved Mr Frank Thompson as the storeman when Mr Frank Thompson was on holidays. He relieved Mr Frank Thompson as storeman in August 1999. He said the Council collected the bins between about 4.30 and 8 o’clock in the morning at the extreme end of that timespan. The Council came at random times and one never knew when they were going to turn up. He was aware that bread vendors such as Mr Bates and another person by the name of Malcolm would have moved the bins before he arrived. Mr Bates had on many occasions said he had moved the bins and that he took it on his own will to move the bins out of the way. If a bin was there when he opened the back dock area he would have pushed them back in to the latticed area. When asked whether that was part of his job to do that he said “I’m not too sure on that. I’m not too sure it was my job or not”. He had not seen the plaintiff nor her husband move the bins. If someone had rung the buzzer he could have been summonsed to move the bins. He agreed that if the bins had been placed back in the latticed area that someone who had some business to do at the store was most likely the person who would have moved them. He agreed that the plaintiff should not have moved the bins because she would have been exposed to a risk of injury. He denied any occasion occurred when Mr Thompson made some remark that Mr. Bennett was not helping the plaintiff. He agreed that in a statement to an insurer he had said that occasionally one of the vendors had to move a bin if the defendant’s staff were too busy to attend to it. He agreed that he knew that the plaintiff and her husband would have to move the bins themselves if they were present in the laneway on their arrival and had not been moved by him.

28. [28]
    When Mr Dailey gave evidence he also said he had moved the bins on several occasions himself. Although he said he did not realise there was a big risk in shifting the bins I took him to mean he did not consider there was a risk of injury moving the bins manually. He thought the bins were fairly light when empty. He was not aware the plaintiff and her husband were moving the bins. He agreed he did not tell them not to move the bins. He is a man weighing 100 kilograms and is 158 centimetres tall.

29. [29]
    The plaintiff was seen by Dr Warwick a general medical practitioner on 21 September 1999. Dr Warwick’s report dated 10 December 1999 contains the following regarding the plaintiff’s description of the incident:

“At that time, she was complaining of a two month history of left sided lower back pain.  She described pain down the front and back of her leg and did not describe any numbness or weakness.   She stated that she lifted a lot in her job as a bread vendor.  The pain has been exacerbated by kicking an industrial bin at work”.

30. [30]
    Mr King an industrial safety expert who spoke to the plaintiff by telephone has recorded in a report to the plaintiff’s solicitors regarding the incident:

“On the day in question, Mrs Thompson was alone when she attempted to move the bins.  When she came to move the defective bin, she stood at one end and attempted to push with her hands.  She could not move the bin using all her strength.  She then adopted a stance where she grasped the top edge and put one foot against the side of the bin.  This posture was demonstrated in a facsimiled photograph.  As she again attempted to both lift weight from the damaged wheel and push the bin, she felt a significant pain in her lower back.  Her husband arrived at this time and was able to complete the bin removal and bread delivery”.

31. [31]
    In the plaintiff’s further and better particulars of the statement of claim dated 4 October 2001 the plaintiff said the bins were located approximately 6 metres – 8 metres directly in front of the loading dock area, the plaintiff attempted to push the industrial bins one at a time, the plaintiff failed to move the bins and the plaintiff attempted to move the bin by pushing with her hands. She also used the extra support of her leg which she had at knee height and used to push against each bin individually.

32. [32]
    The plaintiff and her husband said that neither made any complaint to the defendant that the plaintiff had hurt her back in the incident.

33. [33]
    The plaintiff said her reasons for not making any complaint was because she is very quiet and did not like complaining to people and she probably felt that as they were not getting any response from the defendant as far as help moving the bins or anything it was pointless saying anything then. The plaintiff also did not see a doctor that day because her husband and her son were giving her a lot of help doing the heavy work and she thought her back would settle down.

34. [34]
    Mr Thompson had previously worked as a cleaner and janitor at the Stanthorpe High School. He had undertaken training to qualify for workplace health and safety. He was aware that in the course of his functions as the Workplace Health and Safety Officer for the school that if an incident occurred or an injury occurred that a report should be made of that incident or injury. His explanation for not complaining to the defendant’s employees that his wife had hurt her back that day was that because on every occasion they had approached the defendant they did not get any reaction and they thought they would see how the plaintiff’s back progressed and hoped over the next week or two that her back would improve. He said if they were going to take legal action one could rest assured that he would have had it all documented. He was looking at his wife’s condition at the time and that was the only thing that concerned him as well as assisting his wife.

35. [35]
    There was evidence before me of a gap in the surface between the laneway and the latticed area. Mr McDougall in his report states if a wheel of the bin had entered and stopped in/against the/lip at the construction joint between the laneway and the latticed area, the wheels (and their support of weight) would have to be “lifted” over the gap edge. However, it was not the plaintiff’s case nor the plaintiff’s evidence that a wheel of the bin had become caught in the gap.

36. [36]
    However, Mr McDougall did measure the forces required to push empty industrial bins of similar size and design to that described by the plaintiff across a smooth level concrete surface. He states when the castor wheels were aligned to the direction of pushing a force in the 19 to 21 kg range was required to start the bin moving. On some bins this initial push force was as high as 30 to 40 kg. If the castor wheels were initially aligned at 90 degrees to the direction of pushing and had to rotate to the trailing position as the bin commenced to move a slightly higher push in the 22 to 24 kg range was required. The sustained pushing force to keep the bin in motion was also in the 19 to 20 kg range. Mr McDougall states when the plaintiff moved from pushing the bin towards the loading dock to pushing the bin into the storage area, the castor wheels will have been angled at 90 degrees to the direction of movement. Mr McDougall states based on the force requirements measured by him the task of pushing the bin on smooth level concrete will exceed the strength capacity of a significant percentage of the female population and would predictably be associated with an increased reporting of low back damage. He concluded that based on perceived exertion ratings and measurement of typical forces the identified push force level was likely to have exceeded the maximum criteria for female workers specified in internationally accepted manual handling guidelines aimed at controlling risk of low back damage. It was also his opinion (and the opinion that I disregard on the question of liability in these proceedings) that this would be particularly so if the bin wheels had caught on a change in ground level at the construction joint.

37. [37]
    It is Mr McDougall’s opinion the defendant should have conducted an appropriate audit of manual handling activity and implemented the following counter measures:-

1. (a)
   Eliminate manual handling by providing truck access to the bin storage area through the carpark;

2. (b)
   Alternatively, introduce effective procedural controls (procedures documented, workers trained and enforced through supervision) to ensure Woolworths employees relocated the bins prior to the arrival of delivery drivers and a clear and unambiguous instruction should have been issued to all delivery contractors not to manually handle waste bins under any circumstances;

3. (c)
   If mobile bins were retained regular maintenance of and ground surfaces was required;

4. (d)
   Manual handling forces could be controlled using mechanical systems or handling using a two male person team could be considered;

38. [38]
    Although in these proceedings the plaintiff alleged she suffered an injury to her back as she pushed a bin at the shopping complex, the defendant denied an incident as described by the plaintiff occurred at all.

39. [39]
    The defendant submitted the plaintiff was not a credible witness. It was submitted the plaintiff’s evidence and that of her husband was contradicted in many respects by evidence given by other witnesses. Further, the plaintiff’s evidence was inconsistent with statements the plaintiff made to Dr Warwick and to Mr King and in turn these were inconsistent with her further and better particulars. Further, the evidence of the plaintiff and her husband that no complaint was made to any employee of Woolworths on the day the plaintiff alleged she hurt her back at the shopping complex was remarkable given that the plaintiff and her husband claimed that the plaintiff’s husband complained on 20 or 30 occasions to Mr Frank Thompson and on three occasions to Mr Dailey and given that the plaintiff’s husband accepted his training in occupational health and safety taught him that a report of any injury or incident ought to be recorded.

40. [40]
    In any event the defendant submitted even if I found that an incident as alleged by the plaintiff occurred the plaintiff had failed to establish liability. In the alternative if the defendant was found guilty of any negligence, the plaintiff was guilty of contributory negligence to a substantial extent.

41. [41]
    With respect to witnesses who gave evidence by telephone I do not consider that I was disadvantaged assessing their evidence by reason that they gave evidence by telephone. I observed the witnesses who gave evidence in person. I have considered all the evidence.

42. [42]
    Whether the defendant’s employees responded in a timely way to being summonsed by the buzzer and whether Mr Bennett was not as co-operative as Mr Frank Thompson were issues upon which the evidence of the plaintiff and her husband was contradicted by other witnesses. Whether Mr Bennett avoided giving assistance to the plaintiff was another issue upon which the evidence of the plaintiff and her husband was contradicted by Mr Bennett’s evidence. The content of complaints made and the number of complaints made by the plaintiff’s husband to Mr Frank Thompson and Mr Dailey was another issue upon which the evidence of the plaintiff and her husband was contradicted by the evidence of Mr. Frank Thompson and Mr. Dailey. There were other issues upon which the evidence of the plaintiff and her husband was contradicted by evidence from other witnesses.

43. [43]
    However, the evidence from drivers delivering goods to the defendant, namely Mr Wilson and Mr Shatte who were called by the plaintiff and Mr Bates who was called by the defendant, was that on occasions they found the bins on the laneway and they pushed the bins out of the way to enable them to unload goods onto the dock. It was not suggested by the defendant to Mr Wilson and Mr Shatte nor did Mr Bates state this was an infrequent occurrence.

44. [44]
    Further, Mr Wilson and Mr Shatte’s evidence was to the effect the response by the employees of the defendant to the buzzer on occasions depended upon what work the employees of the defendant were doing at the time the buzzer was used. The plaintiff’s evidence that she found the time it could take for Mr Bennett to respond was about ten minutes was at least consistent with the extreme end of the range experienced by Mrs Bates.

45. [45]
    Further, Mr Wilson and Mr Shatte’s evidence was to the effect that it was a relevant concern to them not to be delayed at the shopping complex as they had deliveries to make elsewhere. Mr Bates impressed me that was a concern for him too.

46. [46]
    Therefore, I consider the plaintiff’s evidence and that of her husband that the plaintiff found the bins on the laneway and the time it took for the employees of the defendant to respond to the buzzer could vary and the plaintiff was concerned that the presence of the bins on the laneway could delay her and her husband making deliveries elsewhere was supported by the evidence of other witnesses.

47. [47]
    Mr Bennett may have been as co-operative as Mr Frank Thompson as far as Mr and Mrs Bates were concerned. However, they may have had no reason to experience any difference between the two employees. My impression of Mr Bates was that he was a resourceful delivery driver who saw the advantage to be first to arrive to unload and get on his way. To do so he moved the bins even though he considered it was not his responsibility to do it. Mrs Bates did not have to consider moving the bins.

48. [48]
    Mr Wilson and Mr Shatte may also have had no cause to form an adverse view of Mr Bennett. However, they too may have had no reason to experience any difference between the two employees.

49. [49]
    On the other hand, the plaintiff and her husband may have had a reason to assess Mr Frank Thompson and Mr Bennett. Mr Frank Thompson and Mr Dailey agreed the plaintiff’s husband had complained to them about the bins. The plaintiff said she did receive assistance from Mr Frank Thompson but not from Mr Bennett. The plaintiff said her husband could not always arrive in time to assist her. The other delivery drivers who had no complaint about Mr Bennett did not appear to me to have these concerns.

50. [50]
    I do not consider the evidence a number of witnesses gave about the force required to push the bins contradicts the evidence of the plaintiff and her husband. I consider any conflict between those witnesses and the plaintiff and her husband may be due to the other delivery drivers having greater physical strength than the plaintiff had or the plaintiff’s husband had. The plaintiff is five feet one inch tall and in August 1999 weighted about 8 stone. I would describe her as “petite”. The plaintiff is shown in one of the photographs in evidence against one of the bins. The plaintiff’s husband had a back disability from a work injury. Mr Wilson was 6 foot tall and weighed 12 stone. Mr Shatte did not have a large build. However, he described himself as physically fit, shifting 500 crates of milk every morning. Mr Bates is much older than the average age of the delivery drivers who gave evidence and not large in build. However, he appeared to me to be a very fit sixty-nine year old. He gave me the impression with his good attitude to work that in August 1999 he would have been willing to push the bins out of the way to enable himself to get on with the next delivery rather than stop and think about any risk of injury to himself. Mr Frank Thompson and Mr Dailey are robust persons in build. Because of their obvious strength, pushing the bins may not have been difficult for them.

51. [51]
    I have considered the evidence of Dr Warwick. Although the plaintiff is reported as saying to Dr Warwick she was complaining of a two month history of left sided back pain I do not accept that the plaintiff should be taken to have stated that literally to Dr Warwick. The plaintiff’s account is of pain lifting a crate of bread and that having subsided. Further, after the plaintiff hurt her back at the shopping complex she did not go to see Dr Warwick until 21 September 1999 whereas the plaintiff said both incidents occurred in about August 1999 separated by about a week or two. I consider in these circumstances Dr Warwick may well have summarised what the plaintiff told her. As far as kicking the bin the plaintiff’s description in evidence of putting her foot up on the bin may also have been a summary by Dr Warwick of what the plaintiff described. I do not accept the plaintiff would have kicked the bin nor told Dr Warwick that she did.

52. [52]
    Regarding what the plaintiff said to Mr King I consider the plaintiff’s explanation is relevant. Her explanation was that she thought the bin had a defective wheel because the wheels did not seem to push. However, the plaintiff said she was not one hundred per cent sure whether the bin did have a defective wheel. I consider that could have been a conclusion the plaintiff came to, although other possibilities may have occurred to others.

53. [53]
    I do not consider the plaintiff’s further and better particulars are contrary to what the plaintiff said to Mr King. The plaintiff accepted she did not tell Mr King she had pushed the bin down the laneway before attempting to push it sideways towards the latticed area. The plaintiff said that was an oversight on her part. That the bins could be left on the driveway some distance from the loading bay was possible. Mr Wilson said he would push the bin towards the loading dock and then push it behind the latticework. I do not consider the plaintiff’s omission in that regard shows the plaintiff to have made a significant change to her version of the incident.

54. [54]
    I consider the plaintiff and her husband’s evidence is supported to some extent by the evidence of Mr Thompson and Mr Dailey who stated the plaintiff’s husband had made complaints to Mr Thompson and at least a complaint to Mr Dailey. Both Mr Frank Thompson and Mr Dailey agreed that the plaintiff’s husband mentioned taking it up with the Council. That is, it is not as if there was never any discussion about a problem with the bins. Of course Mr Frank Thompson and Mr Dailey said the discussion was limited as far as they were concerned to the bins being in the way rather than manually moving the bins being a danger to others including the plaintiff’s wife.

55. [55]
    I find a bin weighed over 350 kilograms. Bearing in mind Mr McDougall’s evidence, which I accept, force would be required to push the bin and more force again could be required to push the bin and turn the castor wheels in the direction in which it was intended to push the bin. Subject to forming a concluded view about the plaintiff’s credit, it is in these circumstances the plaintiff claims she suffered an injury. That is, in these circumstances, although the bin was on castors, the plaintiff’s claim she suffered an injury may have some possible validity.

56. [56]
    I do not accept that the plaintiff’s husband’s background in health and safety and the making of the complaints to Mr Frank Thompson and to Mr Dailey necessarily suggests that the plaintiff and her husband would complain to the defendant’s employees that the plaintiff had hurt her back. It is possible had the plaintiff and her husband complained on the day to the defendant’s employees it might also be open to suggest that they were too quick to complain when with the passage of time it was possible the plaintiff’s injury may have resolved. I consider that the explanations given by the plaintiff and her husband as to why they did not complain on the day to be reasonable in the circumstances.

57. [57]
    I refer to the evidence of Ms Locke called by the defendant. Ms Locke lives on a property that borders the backyard of the property where the plaintiff lives. Ms Locke’s evidence went to observations she made of the plaintiff hanging out the washing. My observation of this witness and the content of some of her answers in cross examination revealed this witness to harbour considerable animus towards the plaintiff. I would not act on her evidence. In any event I do not consider her evidence necessarily contradicted the plaintiff’s evidence. I have referred to her evidence in case it is thought I had overlooked her evidence.

58. [58]
    I consider the evidence of Mr Wilson, Mr Shatte and Mr Bates was not the subject of any real challenge. It was not suggested they were not credible witnesses. I accept their evidence. I consider their evidence supported the evidence of the plaintiff and her husband.

59. [59]
    I consider Mrs Bates’ evidence supported the evidence of the plaintiff and her husband that a storeman could take at least ten minutes to respond to the buzzer. Of courses Mrs Bates said the range was “instant up to ten minutes”, and Mr Frank Thompson at one point said he responded “straightaway” and Mr Bennett said he responded within a five minute timeframe. However, I consider if a storeman responded “instantly” to the buzzer that was more by chance than their intention.

60. [60]
    The plaintiff and her husband impressed me as the type of persons to act as they said in their evidence they did in the circumstances. I noted in the plaintiff’s favour she did not denigrate Mr Frank Thompson and acknowledged he did assist the plaintiff.

61. [61]
    On the other hand I consider Mr Frank Thompson and Mr Bennett were guarded when giving evidence and gave evidence with the plaintiff’s allegations in mind.

62. [62]
    For example, when Mr Frank Thompson was asked about his response to the buzzer he firstly said he went “pretty close” to straightaway. A little later on this topic he said he went straightaway. However, other evidence he gave indicated he could be engaged in other tasks and could be elsewhere. Mr Frank Thompson was so on guard that to a question in cross-examination he asked if he was being asked what he called a “trick question”.

63. [63]
    When Mr Bennett gave evidence he was asked who he thought had moved the bins into the latticed area if it had not been him. Instead of saying either a delivery driver or a Council employee (although it was accepted the Council employees did not do it) he said “If they rang the buzzer, I could have moved them”. That response is one of the allegations the defendant makes to claim the defendant ought not to be found liable to the plaintiff.

64. [64]
    Regarding Mr Dailey he accepted the plaintiff’s husband had made a complaint about the bins being in the way. However, Mr Dailey said his response was that there was nothing the defendant could do about it because the Council truck was like any other delivery. Further, he recalled something being said about crates. The bins and the crates were the two topics the plaintiff’s husband said he did raise with Mr Dailey. When Mr Dailey gave evidence he impressed me as a person who could not see what the concern could be about the bins. After giving consideration that Mr Dailey did deny the substance of the plaintiff’s husband’s evidence relevant to Mr Dailey I consider Mr Dailey may have forgotten the conversations with the plaintiff’s husband because of Mr Dailey’s other responsibilities as the second in charge and the view he took of the complaints at the time the complaints were made.

65. [65]
    I was favourably impressed with the plaintiff and her husband. I am satisfied the plaintiff and her husband are honest witnesses. I accept the evidence of the plaintiff and her husband.

66. [66]
    Therefore, I am satisfied that an incident as described by the plaintiff in her evidence did occur in late August 1999 at the shopping complex and that this did cause the plaintiff an injury to her back.

67. [67]
    The duty owed by an occupier to an entrant is to take reasonable care to avoid a foreseeable risk of injury to the entrant (Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488). 

68. [68]
    Deane J in Hackshaw v Shaw (1984) 155 CLR 614 at 663 said:

“The measure of the discharge of the duty is what a reasonable man would, in the circumstances, do by way of response to the foreseeable risk”.

69. [69]
    In Woods v Multi-Sport Holdings Pty Ltd (2001-2002) 208 CLR 460 at 472 Gleeson CJ said:

“Because the concept of foreseeability in the law of negligence has been taken to embrace risks which are quite unlikely to occur, and to mean only that a risk is not one that is far-fetched or fanciful, many of the cases which discuss the approach to be taken by a tribunal of fact in deciding whether there has been a breach of a duty of care speak in terms of balancing the magnitude of the risk with the cost or inconvenience of preventing it.  But, as Mason J pointed out in Wyong Shire Council v Shirt, ultimately the question of fact is what a reasonable person, in the position of the defendant, would do by way of response to the risk.

70. [70]
    Further in Woods Gleeson CJ observed (p 473):

“[41] Where it is claimed that reasonableness requires one person to provide protection, or warning, to another, the relationship between the parties, and the context in which they entered into that relationship, may be significant.  The relationship of control that exists between an employer and an employee, or of wardship that exists between a school authority and a pupil, may have practical consequences, as to what it is reasonable to expect by way of protection or warning, different from those which flow from the relationship between the proprietor of a sporting facility and an adult who voluntarily uses the facility for recreational purposes.  I say “may”, because it is ultimately a question of factual judgment, to be made in the light of all the circumstances of a particular case.”

71. [71]
    Further in Woods which was a case in which the High Court considered the subject of the duty of care of occupiers of premises to those engaged in a sport on the premises Hayne J at p. 502 explained the standard of care required of occupiers as follows:-

“137.Although conventionally described as a finding of fact, to make a finding that there has, or has not, been a failure to meet a standard of reasonable care requires the tribunal (be it the judge or a jury) to translate the relevant legal principle (that the defendant is obliged to take such care as the reasonable and prudent person would take in the circumstances) into what Fleming described as a ‘concrete standard applicable to the particular case’, and as a process which ‘involves not a determination of fact, but the formulation of a value judgment or norm’.

138. In undertaking that task the tribunal of fact must first consider whether the reasonable person would have foreseen that his or her conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. The risk is foreseeable if not farfetched or fanciful. The tribunal of fact must then decide what the reasonable person would do in response to that risk. This latter decision requires attention to various considerations, very important among these being the magnitude of the risk of injury, the probability of its occurrence, the expense, difficulty and inconvenience of alleviating action, and any other conflicting responsibilities the defendant may have. Some of these considerations (and there may be others presented by the facts of the particular case) pull in different directions. Taking them all into account requires the striking of a balance.”

72. [72]
    I also refer to what Mason J said in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48

“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff.  If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk.  The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.  It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.

The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk.  A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty.  The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.”

73. [73]
    For the purposes of my findings a reference to the delivery drivers includes the plaintiff.

74. [74]
    I find the defendant accepted that as between the defendant and the delivery drivers it was the defendant’s responsibility to move the bins into the latticed area.

75. [75]
    I find the bins on the laneway were an obstacle for the delivery drivers making a delivery to the defendant. Further, the defendant knew the bins on the laneway were an obstacle for the delivery drivers making a delivery to the defendant.

76. [76]
    I am satisfied on occasions Mr Frank Thompson assisted the plaintiff to move the bins. However, I find when he assisted the plaintiff it was because of a sense of honour on his part for a lady. I do not accept he had prohibited the plaintiff from moving the bins. I do not accept he always responded straight away to the buzzer.

77. [77]
    I accept (as did the plaintiff) Mr Frank Thompson was gracious and kind to the plaintiff. However, regarding Mr Bennett I am satisfied he was not prepared to assist the plaintiff move the bins. I accept the plaintiff reasonably concluded Mr Bennett would not assist her. I am satisfied it was Mr Bennett who was the storeman on duty for about four weeks before the plaintiff pushed the bin on the occasion she suffered the injury to her back. Mr Frank Thompson was on holidays during that period. However, I am satisfied Mr Bennett was on duty performing storeman duties on the dock on other occasions when the plaintiff delivered bread to the defendant at the shopping complex.

78. [78]
    I am satisfied the delivery drivers often moved the bins into the latticed area without using the buzzer to summons an employee of the defendant and the defendant knew the delivery drivers often did this and did not prohibit the delivery drivers doing that. I am satisfied the delivery drivers were allowed by the defendant to move the bins for the defendant. I am satisfied the defendant should have reasonably expected the delivery drivers would move the bins for the defendant into the latticed area without using the buzzer to summons an employee of the defendant.

79. [79]
    I accept the plaintiff was concerned from her past experience using the buzzer to summon an employee of the defendant the plaintiff could be delayed at the shopping complex and therefore delayed making deliveries elsewhere. I accept the plaintiff was also concerned another truck could arrive and she wanted to get into the loading bay before that could occur. I am satisfied the plaintiff’s concerns in this regard were also the concerns of other delivery drivers. I am satisfied the defendant should reasonably have expected the delivery drivers to have those concerns when making deliveries to the defendant at the shopping complex. I am satisfied the time an employee of the defendant took to respond to the buzzer varied and sometimes that took up to fifteen minutes. I am satisfied the plaintiff had reasonably concluded the employees of the defendant did not respond to the buzzer promptly.

80. [80]
    I am satisfied the pain suffered by the plaintiff from the previous incident had subsided by the time the plaintiff pushed the bin.

81. [81]
    Although the employees of the defendant who gave evidence did not state there was any benefit for the defendant allowing the bins to be moved by the delivery drivers, I consider nevertheless there was a benefit for an employee of the defendant in that that employee did not have to do it if it was done by a delivery driver. Further, an employee of the defendant not knowing when the Council truck would arrive to empty bins could perform his or her duties inside the defendant’s store unconcerned about the presence of the bins on the laneway.

82. [82]
    As I accept the evidence of the plaintiff and her husband, I am satisfied the defendant was aware of the risk of injury to the plaintiff pushing the bins and that some change ought to be made so that the plaintiff was not placed at risk of injury moving the bins.

83. [83]
    I find the force to move a bin manually was beyond the strength of a significant proportion of the female population and exceeded the maximum criteria for female workers specified in internationally accepted manually handling guidelines aimed at controlling risk of low back damage.

84. [84]
    I am satisfied the plaintiff and her husband were seeking from the defendant some direction as to whose responsibility it was to move the bins. I am satisfied the defendant left the plaintiff in doubt whether she could insist on the employees of the defendant moving the bins.

85. [85]
    I find although most of the people making deliveries to the defendant appear to have been men that did not mean a female was unlikely to be delivering goods to the defendant. The fact is the plaintiff, a female, was making deliveries to the defendant.

86. [86]
    I am satisfied the circumstances that are the subject of my findings were the circumstances generally prevailing over a period of about eighteen months.

87. [87]
    The plaintiff said when cross examined she could have used the buzzer to summons an employee of the defendant and she could have waited for her husband to arrive to assist her. Further, the plaintiff agreed with the propositions suggested to her that for the defendant there was no urgency to have the plaintiff vacate the dock and because she injured her back a week or two before all the more reason she should have waited for her husband.

88. [88]
    Further, it was submitted the defendant did not breach the duty of care owed by the defendant to the plaintiff because the risk of injury was obvious to the plaintiff.

89. [89]
    I accept that the number of complaints and the content of the complaints made by the plaintiff’s husband to Mr Frank Thompson and Mr Dailey implies the plaintiff was aware there was a risk of injury moving the bins.

90. [90]
    Regarding the obviousness of a risk of injury in Woods, Gleeson CJ at p. 474 referred to the comment of Kirby J in Romeo v. Conservation Commission (NT) (1998) 192 CLR 431 at 478 that:

“Where a risk is obvious to a person exercising reasonable care for his or her own safety, the notion that the occupier must warn the entrant about that risk is neither reasonable nor just.”

Gleeson CJ went on to say:

“It is right to describe that observation as a comment.  It is not a proposition of law.  What reasonableness requires by way of warning from an occupier to an entrant is a question of fact, not law, and depends on all the circumstances, of which the obviousness of a risk may be only one.  And, as a proposition of fact, it is not of universal validity.  Furthermore, the description of a risk as obvious may require closer analysis in a given case.  Reasonableness would not ordinarily require the proprietor of an ice skating rink to warn adults that there is a danger of falling;  but there may be some skaters to whom such a warning ought to be given. Nevertheless, as a generalisation, what Kirby J said is, with respect, fair comment.”

Also to this effect see Kirby J in Woods at pp 499-500.

91. [91]
    I am satisfied it was reasonable for the plaintiff to push the bin. Further, I am satisfied the plaintiff did not fail to take reasonable care for her own safety. That is because:-

92. [92]
    Therefore, I am satisfied there was the necessary degree of proximity of relationship between the defendant and the plaintiff. Therefore, the defendant owed to the plaintiff a duty to take reasonable care for the safety of the plaintiff while the plaintiff was upon the defendant’s premises.

93. [93]
    I am satisfied the defendant as a reasonable person would have foreseen by allowing the plaintiff to push the bin there was a real, and not a far fetched or fanciful, risk of injury to the plaintiff. I am satisfied in all the circumstances the defendant should have as a reasonable person implemented either of the measures identified by Mr. McDougall is his evidence as either of those measures was not expensive or difficult or inconvenient to implement.

94. [94]
    Therefore, I find the defendant breached the duty of care owed to the plaintiff and this caused the plaintiff’s injury to her back.

95. [95]
    On the issue of contributory negligence this does not depend on the existence of a duty of care owed by the plaintiff to the defendant. Contributory negligence involves conduct which exposes the plaintiff to the risk of injury without necessarily exposing others to risk (Commissioner of Railways v Ruprecht (1979) 142 CLR 563, 570).

96. [96]
    The defendant must prove on the balance of probabilities that the plaintiff failed to take reasonable care for her own safety, and contributed, by that want of care, to the injury or damage that the plaintiff suffered (O'Shea v Permanent Trustee Co of New South Wales Ltd (1971) Qd R 1, 11 per DM Campbell J; McPherson v Whitfield (1996) 1 Qd R 474).

97. [97]
    What amounts to reasonable care is a question of fact to be determined in the light of all the circumstances of the case (McLean v Tedman (1984) 155 CLR 306, 311-312, 315).

98. [98]
    Although the question of contributory negligence on the part of the plaintiff is a different question to the question of the negligence of the defendant, on the basis of the findings I have made on the issue of the liability of the defendant I am satisfied the plaintiff took reasonable care for her own safety.

99. [99]
    Therefore, I find the plaintiff was not guilty of any contributory negligence.

100. [100]
     Therefore, I find the defendant liable for the plaintiff’s injury and damages.

101. [101]
     Although there is a claim based upon a breach of The Workplace Health and Safety Act 1995, I am satisfied such a claim cannot be maintained by the plaintiff (O'Brien & O'Brien v TF Woolam & Son Pty Ltd (2001) QSC 217.)

102. [102]
     As the plaintiff found her back injury was not improving after about three weeks, the plaintiff attended Dr Warwick at a clinic in Stanthorpe. Dr Warwick referred the plaintiff for x rays and physiotherapy. The plaintiff was also prescribed medication for her pain. Dr Warwick gave the plaintiff a certificate for one week off work. As the plaintiff thought Dr Warwick might have thought her back was not too bad by giving her one week off the plaintiff thought she would keep working as she knew the vendorship was going to be bought out. The vendorship came to an end on 12 October 1999. Although the plaintiff appeared to claim she lost the opportunity to continue the vendorship because of her back injury I am satisfied her back injury was not the cause for the termination of the vendorship.

103. [103]
     Nevertheless, I am satisfied if the plaintiff had not injured her back she would have continued to work in some capacity. Although the plaintiff would have considered working as a domestic at the hospital had a position been available or work as a shop assistant or in apple packing or in farm work or doing private cleaning work. I am not satisfied the plaintiff would have been, at her age and with her previous work history, employed in a full time continuous basis in those occupations earning income at the level indicated in the accountant’s reports tendered in evidence.

104. [104]
     I am satisfied the plaintiff and her husband were of modest means. I am satisfied plaintiff was likely to work to earn income until she could no longer work.

105. [105]
     Because the plaintiff continued to suffer pain in her back she went to a Dr Downs (her own doctor) who referred her to Dr Redmond, a specialist, who had her undergo an MRI examination.

106. [106]
     I am satisfied as a result of the injury to her back the plaintiff has been adversely affected in her life. I accept whereas she used to be very active, she cannot now mow the lawns nor do her gardening work that she enjoyed. I accept the plaintiff has some good days when she can do things as normal and other days she is in a lot of pain. I accept when her pain is at its worst the pain for her is “excruciating”.

107. [107]
     Dr Pentis, an orthopaedic surgeon was of the opinion the injuries the plaintiff suffered in the two incidents in August 1999 combined to cause the plaintiff problems in an area where she does have a spondylolisthesis and degenerative problems at C4/5 and C5/S1 discs. Although Dr Pentis was of the view that if her condition did not improve, and deteriorated, the only alternative was a fusion, the plaintiff expressed in her evidence that option would for her be unlikely. I consider it is unlikely the plaintiff would undergo a fusion operation because the plaintiff said she would not have a fusion unless it was the last resort and Dr Pentis’ evidence was that the success rate of a fusion, especially over two levels, is not high. Dr Pentis stated the operation could make the patient worse. Although the plaintiff might seek a second opinion, the evidence before me persuades me the likelihood the plaintiff could undergo a fusion is negligible.

108. [108]
     Dr Pentis’ view is that the plaintiff’s incapacity is approximately 30% to 35% loss of efficient function of the spine as a whole and each of the incidents in August 1999 would have caused half the problem. Dr Pentis’ evidence was that it was the second accident in time that in his opinion tipped her over the edge. He said it was the second accident in time that has left her with what she has got at present.

109. [109]
     Dr Weidman, a neurosurgeon, was of the view the plaintiff now has a 5% partial permanent impairment of the whole person as a result of her lumbar spine condition. He thought that half of that was due to the pre-existing spondylolisthesis, and half was due to the injuries in question.

110. [110]
     Dr Weidman was of the view the plaintiff would have developed similar symptoms within two to three years from the time of her injuries, even if these injuries had not occurred.

111. [111]
     Dr Boys, an orthopaedic surgeon, was of the view the plaintiff has a 15% impairment of bodily function referable to the lumbar spine. He would apportion 10% to her pre-existing condition. In his opinion her work activities therefore would appear to have brought to light symptoms associated with this pre-existing condition with the incident involving the bin, giving rise to an additional 5% impairment of bodily function.

112. [112]
     Dr Boys believed that notwithstanding the incident with the bin the plaintiff would have experienced symptoms associated with her degenerative lower back condition reflecting a natural progression of that condition within three to five years of August 1999 in any event.

113. [113]
     Dr Pentis did not accept one could say with certainty that the plaintiff was going to have similar symptoms in any event within a short period of years. Dr Weidmann qualified his own opinion in that regard by saying “it is always rather speculative to state when this might have happened ...”. Further, Dr Boys when cross examined agreed that it is not possible for an orthopaedic surgeon to say with certainty that the plaintiff would have progressed to suffer symptoms in the future in the absence of the bin-pushing incident.

114. [114]
     I accept the plaintiff did not suffer, before she suffered pain lifting a crate of bread in August 1999, any pain or disability referable to her back. Further, I have accepted the pain the plaintiff suffered from lifting the crate of bread had subsided before the plaintiff injured her back pushing the bin.

115. [115]
     I did not find Dr Weidmann’s reasoning that he gave in support of his opinion that the plaintiff would have been in the same state she is in now within two to three years after August 1999 persuasive. However, Dr Weidmann and Dr Boys did agree with Dr Pentis’ view that the plaintiff may have gone on in the future without any problems from her back.

116. [116]
     I am satisfied it cannot be stated with any certainty when the plaintiff may have suffered symptoms of a similar kind she has suffered from since August 1999. I am satisfied it is possible the plaintiff may not have suffered any symptoms or may have suffered symptoms but not as severe as she has suffered from since August 1999. I prefer the evidence of Dr Pentis to that of Dr Weidman and Dr Boys. I am satisfied when the plaintiff lifted the crate of bread she suffered some injury, however, when she pushed the bin that aggravated her injury further and left her with the symptoms she now has. I find the plaintiff has suffered a seventeen and a half percent loss of the efficient function of her spine.

117. [117]
     I accept the evidence of Ms Goodwin, the occupational therapist called by the plaintiff. However, the plaintiff did not give any evidence that she would use the equipment suggested by Ms Goodwin the plaintiff needs. Therefore, in the plaintiff’s damages I have not made any allowance for that equipment.

118. [118]
     The plaintiff is now fifty-one years of age.

119. [119]
     In the approach to the assessment of the plaintiff’s damages there must be discounting for the risk that the plaintiff may have suffered injury doing other things that may have involved similar forces as when she was lifting the crate of bread or when pushing the bin and for the natural progression of her pre-existing condition. Further, there must be discounting for the normal contingencies of life.

120. [120]
     I allow the plaintiff $30,000 for pain and suffering and loss of the amenities of life.

121. [121]
     I allow the plaintiff interest on $13,000 of the past pain and suffering and loss of amenities of life at the rate of 2% for 3.8 years which is a sum of $ 988.00.

122. [122]
     For special damages I allow the plaintiff the following:-

Out of pocket expenses  - $ 382.65

   (Ex 33)

Medical expenses  - $ 1264.10

    (Ex 34)

Travelling expenses  - $ 315.00

    (Ex 35)

123. [123]
     I allow the plaintiff interest on the special damages of $ 890.45 at the rate of 5% p.a. for 3.8years which is a sum of $ 169.18.

124. [124]
     The amount claimed by the plaintiff for past Griffiths v Kerkemeyer damages is the sum of $48,399.60 (Exhibit 48).  The first two items claimed I consider cannot be claimed under this head of damage.  On the evidence I consider one hour per day can be allowed for this loss at $15.90 per hour over the entire period.  The plaintiff’s estimate of needing at least two hours care I do not consider was a considered estimate based on a consideration of what was needed per day bearing in mind some of what was done for the plaintiff had a benefit for her husband as well. Therefore, I allow 1350 hours at $15.90 per hour for past Griffiths v Kerkemeyer damages which is a sum of $21,465.       

125. [125]
     I allow the plaintiff interest on the past Griffiths v Kerkemeyer damages at the rate of 2% p.a. for 3.8 years which is a sum of $1631.34.

126. [126]
     For past economic loss based on the plaintiff’s tax returns before the vendorship her earning capacity would appear to have yielded a very modest sum per annum. From October 1999 I assess the plaintiff’s loss at $5000 per annum. Therefore, I allow the plaintiff $17,500 for past economic loss.

127. [127]
     I allow interest on past economic loss at the rate of 5% p.a. for 3.8 years which is a sum of $3325.00.

128. [128]
     For future Griffiths v Kerkemeyer damages the plaintiff claimed $53,877.15 (Exhibit 48) after discounting by 50%.  I allow the plaintiff one hour per day at $15.90 per hour which is $110 per week in round figures for 20 years reduced by 50%.  Using the 3% interest tables, I allow the sum of $43,120 for future Griffiths v. Kerkemeyer damages.

129. [129]
     I allow the plaintiff for future pharmaceutical expenses the sum of $ 516.12.

130. [130]
     I am satisfied the plaintiff is unable to return to commercial employment in any of the former occupations that she has experience in and is realistically unemployable. Taking into account the plaintiff’s age and her evidence she would have worked for as long as she could I calculate future economic loss over a period of 20 years discounted in this case by 50%. However, the plaintiff’s lost earnings per week I consider should be a figure of $100 per week which is an earnings figure more in keeping with the plaintiff’s past earnings over a period of some years before starting the vendorship. I do not consider for future economic loss the calculations can assume the plaintiff would have been likely to be earning the nett after tax figures in Scenario 2 in the accountant’s reports. A loss of $100 per week over 20 years on the 5% interest tables is a sum of $65,900. Discounted by fifty per cent the end result is $32,950 for future economic loss.

131. [131]
     I allow for past lost superannuation benefits the sum of $1400.

132. [132]
     I allow for future lost superannuation benefits the sum of $2965.50.

133. [133]
     The total of the plaintiff’s damages is $157,991.89.

134. [134]
     I give judgment for the plaintiff in the sum of $157,991.89.

135. [135]
     I will hear the parties on the question of costs.