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  4. Brady v Woolworths Ltd (No 3) - [2010] QDC 346

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Brady v Woolworths Ltd (No 3)[2010] QDC 346

Brady v Woolworths Ltd (No 3)[2010] QDC 346

DISTRICT COURT OF QUEENSLAND

CITATION:

Brady v Woolworths Ltd (No 3) [2010] QDC 346

PARTIES:

GLORIA HELEN BRADY

(Plaintiff)

AND

WOOLWORTHS LTD (ACN 000 014 675)

(Defendant)

FILE NO/S:

BD657/08

DIVISION:

Trial

PROCEEDINGS:

Civil

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

10 September 2010

DELIVERED AT:

Brisbane 

HEARING DATE:

16-19 August 2010

JUDGE:

Reid DCJ

ORDER:

Judgement for the Defendant.

CATCHWORDS:

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE - SPECIAL RELATIONSHIPS AND DUTIES – OCCUPIERS – where plaintiff entered a shop and tripped over a roll bar used for transporting clothes – where  Plaintiff suffered significant health issues prior to accident – whether risk of injury was foreseeable to plaintiff – whether the respondent failed to do what a reasonable person would in the circumstances do by way of response to that foreseeable risk

Lynch v Kinney Shoes  (Australia) Limited [2005] QCA 326 – applied

Lynch v Kinney Shoes (Australia) Ltd & Ors [2004] QSC 370 – applied

Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19 – distinguished

Rasic v Cruz (2000) NSWCA 66 – followed

COUNSEL:

G. Cross for the Plaintiff

R. Morton for the Defendant

SOLICITORS:

Colin Patino Lawyers for the Plaintiff

DLA Phillips Fox for the Defendant

  1. [1]
    The plaintiff, Gloria Brady, claims damages for injuries suffered in an incident which occurred on 29 December 2006 at the defendant’s Big W store situated at the Sugarland Shopping Centre, Bundaberg.
  1. [2]
    The plaintiff, who was born on 19 February 1947, is currently 63 years and six months of age. At the time of the accident she was 59 years and 10 months of age.
  1. [3]
    Both quantum and liability are in dispute.

Plaintiff’s case

  1. [4]
    The plaintiff said that on the morning of 29 December she attended the Sugarland Shopping Centre, intending to buy some clothes. She went with her husband, Raymond Brady, her son, Shane Brady, and his wife Jodie Brady, and her four grandchildren. It was the Christmas sales period and she says the shops were busy and the Big W store was untidy. She said that after selecting various items of clothes from the women’s wear section, she made her way towards the shoe area where she intended to look for some shoes for her grandchildren. In the course of her evidence she adopted a diagram as representing the Big W store in the area where she fell. This became Exhibit 15, and is attached to these reasons. She said that she was situated near the second box from the bottom shown in the centre of the exhibit. She said that signs on the display boxes were at about her eye height or above. She said she was 157 centimetres tall. She said the signs were directly facing her as she was at the left-hand edge of the box depicted in Exhibit 15.
  1. [5]
    In my view there is significant doubt as to whether or not her recollection of where the signs were facing is accurate. It would not have been a significant matter to her at the time and I formed the impression that this may have been a matter of recreation of something she thought might strengthen her case since it was asserted such a sign might have caused her not to see the roll bar over which she eventually fell, or at least not see it until the very last moment. I do not accept her evidence about the direction the signs were facing.
  1. [6]
    The plaintiff’s evidence was that she had no recollection of ever seeing the roll bar over which she tripped. That is a matter that I will refer to later after referring to all of the evidence about the fall. The roll bar was a mobile cloths rack. At the time of her fall, some items were hanging on it. Staff of the defendant were using it to replenish stock which had been sold.
  1. [7]
    The plaintiff said that she was looking where she was walking, but was also looking at specials and items on sale. That might be expected of customers as they moved around the store. She said that immediately before the incident she spoke to her daughter-in-law, saying “Where are you going?” She said that was the last thing she remembers until after she found herself on the floor of the store.
  1. [8]
    It is clear that she tripped over the roll bar which occupied almost all of the space between two display boxes containing shoes on sale. The roll bar is represented by the line between the second and third boxes shown in Exhibit 15. In circumstances where she said she had no recollection of the actual fall or of the roll bar, it was perhaps a little surprising that she denied ducking her head and denied stepping over the lower bar of the roll bar. She also gave evidence that she knew she had tripped, as someone had told her of that after the event. (T2-67 l25)  I do not accept that she was told that by anyone who saw it occur. If someone, such as one of her grandchildren, as she suggested it might have been, had in fact seen the incident and told her of it, I have no doubt they would have been called to give evidence. I think, rather, that her saying that she knew she had tripped was a deduction that she has made and her family came quickly to believe that she tripped over the roll bar as a result of not seeing it.
  1. [9]
    Shane Brady is the plaintiff’s son. He said that after they entered the store, his wife and daughter went to the women’s section to shop and that he remained standing next to the display boxes containing shoes shown in the centre of Exhibit 15. He said he was standing, leaning on the right-hand perpendicular edge of the second box from the top shown in that exhibit, facing in what I may describe, as an easterly direction (for the purposes of the trial, it was assumed that the top of Exhibit 15 was north, so that the right-hand edge was to the east, the left-hand edge to the west, etc). The display boxes shown in the photos comprising Exhibit 1 were, he said, different from the display boxes on the day his mother was injured. He says that the boxes in use on the day “went to the floor”. In my view, nothing turns on this difference, if indeed they were different. I make no findings about that matter. Shane Brady said he did not remember seeing a roll bar between the second and third boxes shown in Exhibit 15 as he had walked past and to the right of it (T2-103 ll40-45). This would not be surprising. The roll bar would not have been a matter of any concern to him and I infer nothing from his failing to see it. He also said that whilst he was standing in the position I have described, his mother asked him about the whereabouts of his wife and daughter. He says that at that time she was to the left of the second box from the bottom shown in Exhibit 15.  He marked the position with the word “mum” as shown on Exhibit 15. He said there was about 12 to 18 inches of clothes on the roll bar at the time, but this estimate was based on his recollection of it after his mother had fallen. He said that he saw his mother fall but only out of the corner of his eye and as she was “going down” (T2‑105 l25). Although he denied in his evidence that his mother had ducked her head or tried to walk through the roll bar, it was clear that this was because of his belief that if she had seen it she would not have walked through (T2‑105 ll38‑40). He confirmed he had not seen the lead‑up to her fall and as I have said, caught sight of her falling only out of the corner of his eye as she was in fact falling, and was unable to say whether her feet had gone through the rack. (T2‑106 ll5‑6)
  1. [10]
    His evidence is in my view unhelpful in determining whether the plaintiff deliberately walked through the roll bar, as was the defendant’s case, or fell because she tripped over it as a result of not seeing it.
  1. [11]
    Interestingly, he said that his three sons had gone to the toy section and that he had to go and get them there after his mother fell. This is inconsistent with the evidence of other of the plaintiff’s witnesses. His wife said the children were all immediately in front of her. The plaintiff said that two of the children were in the region but two had gone off. Mr Ray Brady said they were all in the immediate vicinity. I do not think anything turns on these vagaries of recollection, but it does illustrate that people, probably all people, have difficulty accurately recalling specific things, particularly matters which are not of great significance.
  1. [12]
    Shane Brady also said that he did not see anyone from Woolworths come to his mother’s aid until “my wife grabbed them”. (T2-107 l7) He said she “went and got two staff”. (T2-107 ll11-14) She said in her evidence they were only a matter of metres from her. In such circumstances his description of his wife having to “grab them” and his evidence of some delay in their attending is difficult to accept. His recollection of the staff that he remembered being in the vicinity were a short, dark-haired male, a skinny red-headed male and a thickset woman, who he said were Big W members identifiable by their uniforms. It is clear he was upset by the incident and as a result had to walk away (T2‑109 L25 – T2‑110 L1). I do not accept his evidence about the staff he said attended after the fall.
  1. [13]
    His wife, Jodie Brady, also said she did not see the incident. She said the store was untidy with clothes and shoes strewn over the floor of the shop. In my view that is irrelevant to the issue of liability and I make no specific finding about it, but the insistence of the plaintiff’s witnesses about that issue did cause me to wonder about the independence and accuracy of the evidence of Jodie Brady and some of the plaintiff’s witnesses. It was no doubt busy in the store and I can well understand that shoes in the shoe display box, for example, may well have become jumbled. That is vastly different from the evidence that shoes and clothes were strewn over the floor. I think this unlikely to have been the case, but as I have said it is not necessary to make a finding about it because I do not think it is relevant to the determination of liability in the matter.
  1. [14]
    Jodie Brady said that all of her children were “just in front of me” at the relevant time. (T3‑79 ll25‑28)  She said the plaintiff was in one of the aisles of the shoe section when she walked past, to the right-hand side of the display boxes of shoes shown in Exhibit 15. (T3‑79 ll35‑45)  She said when she was in a position to the right of the third box from the bottom shown in Exhibit 15, which she marked with “JB” on the exhibit, the plaintiff called out to her. She turned around to talk to the plaintiff. When she looked back she said she did not see the roll bar. (T3‑81 ll15‑20)  Once again, this is not surprising and reflects the fact that at that time it was not of any significance to her. That is was there, is not in dispute. I do not infer, from the fact she said she did not see it, that it was somehow camouflaged or difficult to see. She said the plaintiff was then “about half way between the second and third box” and marked it with the letters “MIL” on Exhibit 15. She says she turned away and so did not see the plaintiff fall. She says this occurred only a short time (what she described as “a split second”) after she turned away. Once again I do not think anything turns on her description of this time period. I do not accept it was necessarily so short a time as Jodie Brady suggested, but it was clearly very soon after.
  1. [15]
    The plaintiff’s husband, Ray Brady, also said the store was untidy with clothes and shoes falling from the racks. I have said previously what I think about the nature of such evidence. He says he kept to the rear of the family group of his wife, son, daughter-in-law and four grandchildren so that he could keep an eye on the children. (T2-117 ll10-12) He described his view of the children as being blocked by “signs and different things, racks” for time to time, some of which he described as “about head height”. This of course would be likely to occur from time to time in any store and is not of help in determining the issue of whether or not the plaintiff saw the roll bar prior to falling. He described his wife as going “up towards the shoe aisle”. (T2-117 L58) He said he was “at the back of the box”, “between boxes” when his wife fell and so did not see her fall. He said that after she had fallen he saw the roll bar. He said it was “a lot closer to that box”, than indicated by a photo, being Exhibit 1, photo 7. It was not, however, part of the defendant’s case that the photo indicated the distance between the end of the roll bar and the display boxes at the time the plaintiff fell, a point reinforced by Mr Morton at the time Mr Brady gave that evidence. (T2-120 ll33-38)  Mr Brady said his wife was knocked unconscious. He also said he had never seen the roll bar prior to his wife’s falling. Having regard to his position which he marked with an “X” in a circle below the second box shown in Exhibit 15, this is not surprising.
  1. [16]
    Direct evidence of the plaintiff’s fall was therefore unable to be given by the plaintiff or any of the plaintiff’s witnesses. I was asked to infer that the roll bar was difficult for the plaintiff to see and not in fact seen by her (or not seen in sufficient time for her to react to avoid it) and that she accidentally tripped over it.
  1. [17]
    At trial a dispute arose as to whether the plaintiff was the author of a letter written to Woolworths on 14 January 2007 (Exhibit 29). I have no doubt she was, in that she either wrote it herself on a computer, or had family members write it for her. She says she was unable to type, but it seems to me any member of the family might have helped her by typing it. The fact it was unsigned is not determinative of anything. The original document was sent to the defendant without a signature but that is not to say that the plaintiff did not authorise it or that it did not accurately reflect what she says occurred. Indeed, the contents of the letter – containing, as it does, matters known only to the plaintiff and her husband or those to whom she had told such things – and its nature, which was generally accusative of Woolworths and sought payment of a number of accounts, convince me that it was sent by or at the direction of the plaintiff. Ultimately I did not understand her to reject such a notion.
  1. [18]
    When giving evidence she said the words used in the letter “I tripped over the bottom bar and fell” were because someone, perhaps, she said, a grandchild, had told her this. As I have said, if someone had seen it and told her – and there are only a very limited number of persons who might have done so – I feel certain that person would have been called to give evidence.

Defendant’s case

  1. [19]
    It seems that no member of her family saw what caused her to fall and her use of the phrase “I tripped over the bottom bar and fell” is either a matter of supposition by her or she remembers so tripping and falling (and was therefore being untruthful when she told the court that her last memories are of turning right from the shoe display marked in Exhibit 15). Another possibility might be that her tripping was witnessed by a member of her family and that person was not called because the evidence they might give would be unhelpful, perhaps, for example, because they might confirm that she appeared to have deliberately walked through the roll bar. I am inclined to favour the first such explanation (i.e. that her description of tripping was a matter of supposition) but do not entirely discount the possibility that the plaintiff may remember more of the incident than she is in fact telling, or that it may have been witnessed by a family member.
  1. [20]
    Direct evidence of the plaintiff’s fall was given by two witnesses, both employees of the defendant.
  1. [21]
    Georgina Rickard was a loss prevention officer, commonly known as a store detective, with the defendant. She had been so employed only from November 2006. At the time of trial she was not employed. I was told that she had been involved in a serious accident. She was certainly noticeably limping when walking to the witness box and I attributed some of her apparent testiness when giving evidence to symptoms of pain arising from her injuries.
  1. [22]
    In any case, despite this, I found her answering of questions to be direct and honest, and I accept what she said about the accident. She said she was walking behind the plaintiff prior to the plaintiff’s fall. She made clear there was nothing suspicious in the plaintiff’s behaviour which caused her to take such an interest in her – she was merely walking in the same direction as the plaintiff, and behind her. She said that the plaintiff walked from the shoe section shown to the left side of exhibit 15 to intimate apparel, which was to the right-hand side of Exhibit 15. She said she was a distance, estimated to be only about four or five metres, behind the plaintiff. (T2-78 ll30-45)  She then said:

“I saw her walk towards intimate apparel, she ducked her head and lifted her foot to step through a roll bar and she tripped.”

  1. [23]
    She was asked if she saw the plaintiff’s front foot actually go through the roll bar or not, and she said she did not remember. In my view, this concession is consistent with her doing the best she could to recall events, rather than seeking to give false testimony to support her former employer. She described the ducking of the plaintiff’s head as “just put the head down to go under the top rail”.
  1. [24]
    Ms Rickards says that after the plaintiff fell she immediately moved the roll bar to a fitting room. She recalled another staff member who she knew only as Tammy and another unidentified staff member assisting the plaintiff. She said she recalled underwear being on the clothes rack. I accept such evidence including the fact she moved the roll bar very soon after the incident.
  1. [25]
    In cross‑examination she accepted it was possible there was no gap between the display bins and each end of the roll bar to walk around. As I said earlier, it was not part of the defendant’s case that there was any such gap.
  1. [26]
    Although Ms Rickards says she had the plaintiff in view for “a few minutes”, she also said she was constantly walking and only travelled “a few metres”. (T2-89 ll45-55)  I think her estimate of time, as is often the case with witnesses, is clearly wrong but I accept her evidence that she had not observed the plaintiff other than for a short distance. In my view, the time she had the plaintiff under observation would clearly have been a matter of seconds and not minutes.
  1. [27]
    I accept Ms Rickards’s evidence that the plaintiff walked from the aisles in the shoe department to the left-hand side of Exhibit 15, immediately in front of Ms Rickards. I prefer the evidence of Ms Rickards with respect to this issue rather than that of the plaintiff and witnesses called on her behalf that she had generally taken the path shown in Exhibit 15. One difficulty with continually showing the marked exhibit to witnesses, with the path of travel already marked on it, is that effectively the witnesses were led rather than giving independent evidence of her path of travel. I am mindful of the fact that the “track” shown in Exhibit 15 does not appear to show that she ever entered the isles to the left of the exhibit, despite the body of evidence that she had and indeed the evidence that she had previously obtained some goods from the women’s wear section. Ms Rickards specifically disagreed with the suggestion that she had followed the path of travel shown in Exhibit 15. (T2-91 ll23-29)  Ms Rickards also specifically disagreed with suggestions that the plaintiff “did not bend or duck her head to get under the clothes rack” (T2-92 ll53-55) and “did not attempt to step over or through the clothes rack, that she simply tripped on the clothes rack walking.”  She also disagreed with the suggestion that the plaintiff had tripped on the roll bar when walking normally (T2-92 ll53-60). She also disagreed that a person might gain the impression that she had ducked her head because she had tripped and fallen. (T2-93 ll5-8)
  1. [28]
    Exhibit 41, which was a drawing of a roll bar by Vicki Barritt, indicated that the top side of the bottom bar of the rack was about 180 millimetres above the level floor of the shop, the bar being 160 millimetres above the ground and being 20 millimetres thick. In my view, a step of that nature – about seven inches in the old language – is unlikely to be mistaken for a trip arising from normal walking.
  1. [29]
    Importantly, Ms Rickards’s evidence was supported by that of Tammy Nelson. Ms Nelson commenced working at Big W, Bundaberg in September 2000. She is still so employed although currently on maternity leave. She was as the time of the subject incident with 2 other employees, taking stock from the roll bar to fill shelves. She says she was filling a small fixture called a condola, or four-way, with bras.
  1. [30]
    She says she saw the plaintiff fall. She said the plaintiff was in an aisle where the shoes were. She said this was an aisle opposite to where she was working. (T3-52 ll40-44) She said she was at a position which she indicated immediately under the word “sign” and the words “Bin Full with Sign at Head Height” on the right-hand side of Exhibit 15, i.e opposite the aisle between the second and third “display stand” rectangles on the left-hand side of Exhibit 15.
  1. [31]
    Ms Nelson said she saw the plaintiff “walk through the roll bar”. (T3-52 ll29-30)  The transcript shows she said the plaintiff “put one step – one put through and then she come to bring the second foot through and it’s gotten caught on the bottom of the roll bar and that’s when she has fallen flat on the ground.” (T3-53 ll6-10)
  1. [32]
    The second “put” in the quotation is a transcription error. She used the word “foot”, not “put”. That accords with my own note and recollection and is in accord with what she described. It was clear she said the plaintiff tripped as her second foot caught the bottom bar. I accept her evidence.
  1. [33]
    The roll bar in question is shown in the photos comprising Exhibit 1. The clothes shown on the roll bar in the photo are not necessarily indicative of the number of bras on it at the time when the plaintiff fell. I accept that there were bras hanging on is consistent with the evidence of Ms Nelson. I note the evidence of Ray Brady that there was probably 13 to 18 inches of such bras at the time the plaintiff fell. In my view, such a rack, extending the whole of the distance between two display bins of shoes, would have been readily visible to a person, even one shopping and perhaps somewhat distracted by signs or items on display around them. I find that the plaintiff in fact saw the roll bar and decided to step through it, rather than go around to the top of the third bin shown in Exhibit 15 (or to the bottom of the second bin). In my view, there was little utility in her stepping through the rack. Nothing was to be gained from doing so. The extra distance involved in travelling around the top of the third bin, or bottom of the second bin, rather than stepping through the roll bar, when it occupied the whole space between the second and third bins, was inconsequential. I accept the evidence of Georgina Rickards and Tammy Nelson, and conclude from that, and from the fact that the mobile clothes rack was, in my view, readily to be seen by anybody shopping in the store and seeking to walk between the second and third bins, that she did in fact see it and consciously stepped through it.
  1. [34]
    I do not accept the alternate submission by counsel for the plaintiff that I should infer that she might have seen it only at the very last second and subconsciously stepped through. In my view, the height of the bottom rail, being about 180 millimetres above the level of the floor, is inconsistent with such an assertion, particularly when one has regard to her health issues, including issues with mobility, about which I shall later refer. Furthermore, the roll bar was not difficult to see and would have been seen by a person taking reasonable care. The plaintiff, because of her health issues, was unlikely to have been walking with great haste.
  1. [35]
    In the circumstances, I find:
  1. (i)
    the roll bar was readily visible to any one taking reasonable care for their own safety;
  1. (ii)
    prior to tripping the plaintiff in fact saw the roll bar;
  1. (iii)
    the plaintiff made a conscious decision to step over the bottom rail of the roll bar and try to walk through it, rather than taking the only slightly longer route that I have referred to.
  1. [36]
    In her evidence, Tammy Nelson said the roll bar was placed it the position it was:

“because there’s not much space that you can walk through to walk on either side to get through, you actually have to walk through the roll bar. So it’s safer to be between the two tables than where it is anywhere else”.

  1. [37]
    I take this to be expression of opinion by Ms Nelson that the reason the roll bar was placed where it was was because it did in fact occupy the whole or substantially the whole space between the two shoe display boxes so that it was not possible, realistically, for customers to try to squeeze between the ends of the roll bar and the boxes. She was saying that because it occupied the whole of the space, the only way through would be to walk through the roll bar and she was inferring that this was not something customers would normally do.
  1. [38]
    In my view it was however foreseeable that some customers might attempt to walk through the roll bar. I think in argument I said that it is something that I might have done in my youth. Counsel did not ask any of the witnesses from the Defendant whether in fact people did so. In the circumstances I am left to wonder whether in fact any people, other than Ms Brady, have in fact ever tried to take the slight shortcut by stepping over the bottom bar and through the roll bar. Although Ms Nelson said she had been given no training or instruction in regard to the use of the roll bar and where it was to be put (T3‑68 ll 50-60) it seems the location where it was placed was in accordance with what Vicki Barritt said was the designated position.
  1. [39]
    Vicki Barritt is an administration manager of the Queensland area for the defendant. In December 2006 she was assistant store manager for Big W Bundaberg, acting as relief store manager. She was at work at the time of the plaintiff’s injury and was summonsed by what she called a service two call. I gather this is a first aid call made over the loud speaker system of the store.
  1. [40]
    She said she went to the lunchroom to get an ice pack and directed a co-employee who was with her at the time, Diette Baynham, to get the first aid kit. She says she then went to where the plaintiff was lying in the intimate apparel section of the store. She had with her a cordless store phone and had rung the Queensland Ambulance Service who attended shortly after. She said Diette Baynham was with the plaintiff until the QAS arrived. She was taken by ambulance to the Bundaberg Hospital.
  1. [41]
    Vicki Barritt said that she spoke to staff whom she understood were working in the area and ascertained at that time that only Tammy Nelson had seen the incident. She was later contacted by Georgina Rickard who also told her of having witnessed the incident.
  1. [42]
    Ms Barritt said the roll bar had already been moved to a fitting room by the time she got there. As I have said previously, the roll bar was taken there by Georgina Rickard.
  1. [43]
    Vicki Barritt said that when she was filling out paperwork about the incident, some time later on the day of the incident, she got the roll bar out of the fitting room and with Tammy Nelson took photos, which are Exhibit 38. She said this was about one to one and a half hours after the incident. I again note the clothes shown hanging from the roll bar in the photo are not necessarily representative of the clothes on the rack at the time of the plaintiff’s fall.
  1. [44]
    Ms Barritt says that she later took measurements of the roll bar and prepared the diagram, Exhibit 41. I accept that the diagram is an accurate representation.
  1. [45]
    She said the system of work in place at the time was that roll bars were to be placed between what she called action aisle tables, which were the tables where the shoes were displayed and marked as boxes in the centre of Exhibit 15. She said this was part of the training programme for new employees and thought it may have been referred to in the Visual Merchandising manual. That document had not been discovered by the defendant and was not put into evidence.
  1. [46]
    She said that the roll bars were so placed so as not to be in either of the main aisles to the side of the action aisle tables. This was clearly because those aisles were main thoroughfares and would have had a greater number of people using them so that the placement of the roll bar within such an aisle would have caused greater inconvenience.
  1. [47]
    Although Ms Barritt said that the positioning of the roll bar in this way was part of an employee’s induction training, Ms Neilson had said that she had been given no training or instruction in regard to the use of the roll bar or where it was to be put. This may have been because she had forgotten receiving such treatment or it may mean that she was in fact not so trained. If she was not so trained, that leaves open the question why it was in fact located where it was, which was in accordance with what Ms Barritt said was taught in the induction training. The answer may be that one or other of the two women with whom Ms Nelson was working – Ms Goldrick or Ms Seen, who were not called to give evidence since they did not see the incident – may have determined where the roll bar was placed.
  1. [48]
    In any case it seems to me that it was placed in the manner it was in accordance with the requirements of the defendant. Whether this was by chance or design is not known. The issue I have to decide is whether the defendant was negligent allowing it to be placed in that position.
  1. [49]
    Ms Barritt was cross-examined about why the shelves were not filled with stock at times no customers were in the store. She said that some racks are filled at night but some are “refilled during the day” if stock was sold out. (T1‑13 ll38‑44)  She said it was not possible to do all filling at night as stock may be sold down and need to be refilled. She denied it was the practice of the defendant to encourage persons to walk through the roll bars. In making that suggestion to her, Mr Cross, who appeared for the plaintiff, relied on evidence of Ms Nelson, that I earlier referred to in [37] hereof. He suggested to Ms Barritt that this passage indicated that the defendant encouraged customers to walk through the roll bar, a suggestion that Ms Barritt denied. As I have said I do not think that this is the natural meaning of the words used by Ms Nelson. During the trial I commented that the passage of evidence of Ms Nelson may not mean what Mr Cross thought it did when he put these matters in cross-examination to Ms Barritt.
  1. [50]
    In my view, what Ms Nelson meant was that if one were to get from one side of the roll bar to the other, and did not want to walk to the top or bottom of the second or third tables shown in Exhibit 15, one would have to walk through the roll bar, as I have the found the plaintiff did. In my view, rather than meaning that is what the defendant wanted to achieve, Ms Nelson meant to indicate that it was so positioned so that people would in fact not walk through the roll bar but would instead take the more obvious route around the top of the third table or bottom of the second table shown in the exhibit. In other words, her evidence meant to convey a reason directly opposed to the suggestion Mr Cross put to Ms Barritt.
  1. [51]
    The important question of whether in fact customers ever walked through the roll bar was not asked by the plaintiff’s counsel, a point I made at T1-15 ll35-40 of the transcript. In that circumstance, I myself asked Ms Barritt if she had ever seen people walking through a roll bar. She said she had not but added that she didn’t know if a roll bar was left unattended, whether people would walk through it (T1‑16 L12‑25).
  1. [52]
    Ms Barritt said that since the accident different roll bars are used by the defendant. The new roll bars have an additional centre bar and a horizontal grill at the bottom. It seems to me beyond dispute that such a roll bar would be more difficult for a customer to walk or step through. Indeed it might now be almost impossible for that to happen. They are also now light blue whereas the roll bar in question was grey.
  1. [53]
    It was submitted on behalf of the plaintiff that the defendant ought to have had an employee stand beside the roll bar to ensure that a person such as the plaintiff did not, either accidentally or deliberately, attempt to walk through it. It was said only financial considerations were relevant to the decision not to do so.
  1. [54]
    The plaintiff submitted that the amount of stock on the roll bar was less than that depicted in the photos, Exhibit 1 or Exhibit 38. I am in fact unable to make any finding about the amount of clothes on the roll bar. Because the defendant had said it was unable to particularise how much clothing was on the roll bar, the plaintiff’s counsel objected to the defendant’s witnesses giving any such evidence. Although the plaintiff’s witnesses gave some estimates of the amount of clothes on the roll bar I am not prepared to make a finding one way or the other in circumstances where only one side has given evidence about that issue. In any case, because of my finding that the plaintiff saw the roll bar and she made a deliberate decision to step through it, the issue is of no importance.
  1. [55]
    It was said on behalf of the plaintiff that the only visual cue to shoppers was the amount of clothing on the roll bar. I find the roll bar itself was clearly to be seen and, in circumstances where some clothes were on it, would have been seen by a shopper taking reasonable care, even in a busy supermarket. In any case, I find that the defendant did in fact see the roll bar prior to deciding to step through it. It was also submitted by the plaintiff’s counsel that if the plaintiff, did as I have found, deliberately walk through the clothes rack, the decision to do so must have come at the very last moment when the recognition of something in front of her materialised. I do not accept that submission. In my opinion the roll bar, with some bras in it, was clearly visible to a shopper taking reasonable care as expected of a shopper in a busy store.
  1. [56]
    Because it was visible, because of the evidence of Ms Nelson and Ms Rickard about the plaintiff’s stepping through the roll bar, because the bottom bar was about 180 millimetres above the floor, and because it was her second or trailing foot which caused her to trip and fall, I find that her action was a deliberate one, which would have been avoided by the exercise of reasonable care.
  1. [57]
    I should add that a photo recreation of the incident, being Exhibit 38A shows Ms Nelson stepping under underwear and through the roll bar and shows her ducking her head and bending somewhat to do so. I do not accept that when Ms Nelson saw the plaintiff stepping through the roll bar that she noticed her ducking under bras hanging from the top bar. Although there were bras hanging from the roll bar Ms Nelson was unable to say that the plaintiff stepped under that part of the rack on which the underwear was hanging. Furthermore, it does not seem to me that she ever noticed whether in fact the plaintiff ducked her head as shown in the photo, (although Ms Rickard said that she had, and I accept that evidence).

Law

  1. [58]
    The duty cast upon the defendant was as stated by the Court of Appeal in Lynch v Kinney Shoes  (Australia) Limited [2005] QCA 326. In particular I have regard to the contents of paragraph [10] thereof.
  1. [59]
    The legal issues involved in the consideration of whether the defendant was in breach of its duty in this case are in my view identical to those identified by Cullinane J in that case at first instance, Lynch v Kinney Shoes (Australia) Ltd & Ors [2004] QSC 370. They were:
  1. (i)
    Was there a foreseeable risk of injury to the plaintiff?
  1. (ii)
    Did the defendant fail to do what a reasonable person would do by way of response to that foreseeable risk?
  1. (iii)
    Was there a causal relationship between any failure to act reasonably by way of such response and the plaintiff’s injuries?
  1. [60]
    In my view it was foreseeable that a customer might either fail to see the roll bar, and step against it or trip over it, resulting in injury, or, as in this case, having seen it, might decide to step through it.
  1. [61]
    Cullinane J in Lynch v Kinney (supra) said:

“[36]However the question whether the second defendant ought reasonably to have taken steps to remove such a risk has to be answered by consideration beyond the existence of the risk itself.

[37]A proprietor of a store of this kind is entitled to assume that persons coming on to the premises would to use the language of Mahoney JA in Phillis v Daley (1988) 15 NSW LR 65 at 75 “pay heed to the obvious and act accordingly”.”

  1. [62]
    In my view this defendant had an obligation to take reasonable care to alert customers to the presence of the roll bar, either by ensuring that it was clearly visible or by some sort of warning sign.
  1. [63]
    If the defendant had, when exercising reasonable care for her own safety, not seen the roll bar, tripped and fallen then the defendant might be found liable for not sufficiently highlighting the presence of the roll bar. However, in my view, this is not what occurred.
  1. [64]
    The obligation on the defendant was to take reasonable care and to alert customers to the presence of the roll bar. Even if the defendant in this case did not do so, that breach was not causative of the plaintiff’s injury.
  1. [65]
    In my view the plaintiff saw the roll bar and elected to try to step through it. Normally a person could do so with no or minimal risk of injury. The plaintiff’s fall occurred because, in my opinion, her relative ill health, to which I shall later refer, restricted her ability to do so safely. Her ill health was a matter well known to her yet she elected to try and step over the bottom bar of the roll bar. In my view she was herself negligent in doing so, and was the sole effective cause of her falling.
  1. [66]
    In my view the risk of someone injuring themselves from the roll bar, if they were aware of its presence, was extremely low. Having regard to matters such as the magnitude of the risk and degree of probability of its occurrence I do not think it necessary that a store owner do more than take reasonable steps to ensure customers were made aware of its presence. Because, as I have found, the plaintiff in this case was so aware, and made a conscious decision to step over the bottom bar any failure to warn of its presence is not causally relevant to the occurrence of the accident.
  1. [67]
    I therefore find that the plaintiff fails with her action.
  1. [68]
    I shall refer also to a decision of Rasic v Cruz (2000) NSWCA 66. In that case, a plaintiff injured her lower back when she stepped backwards into a plastic bag dispenser at a local supermarket. The majority (Meagher and Beazley JJA) allowed her appeal. Fitzgerald JA would not have allowed her appeal. His judgement is of interest, not least because it has subsequently been cited with approval by the NSW Court of Appeal in David Jones v Bates [2001] NSWCA 233. In that case, Davies AJA, with whom Heydon JA agreed, said:

“[53]As Fitzgerald JA said in Rasic v Cruz (2000) NSWCA 66 at [42]:

“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”.”

  1. [69]
    In my view, that statement of the Court of Appeal in NSW is correct. In my view, the fact that the defendant has, since the subject incident, introduced new roll bars which would have ensured the plaintiff did not attempt to walk through the roll bar does not mean the defendant is to be found liable. In my view, the accident occurred because the plaintiff carelessly attempted to step through the roll bar.
  1. [70]
    Before leaving the question of liability I also refer to Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19. In that case an independent contractor succeeded in an action against the occupier of premises who had left industrial rubbish bins on a loading dock to which the plaintiff required access to unload her truck. The plaintiff was aware of the risk of injury to herself involved in moving the industrial waste bins, but did so in any case, and suffered injury.
  1. [71]
    In that case there was, however, evidence that the occupier knew it was not unusual for delivery persons, including the plaintiff, to move the bins themselves, and knew of the real risk of injury when doing so.
  1. [72]
    In my view, the fact that the occupier had knowledge that drivers were doing so and knowledge of the real risk that a driver might injure themselves when moving a bin, distinguishes that case from this.
  1. [73]
    As I have said, there was in this case no evidence whatsoever that any person had previously stepped through a roll bar, even though it was foreseeable that they might do so, and, in any case, the risk of injury from a person deliberately doing so was slight indeed. In this case, the plaintiff fell because her ill-health did not allow her to do so in safety.

Contributory Negligence

  1. [74]
    In case I am found to be wrong with my assessment that the defendant was not causally negligent, I shall consider contributory negligence. I note in Thomspon v Woolworths (supra) that the High Court adopted the approach of McMurdo J in the Court of Appeal to contributory negligence. He had found that the plaintiff in that case was liable to have her damages reduced on account of contributory negligence to the extent of one third. In my view, because of the reasons I have identified which caused me to differentiate this case from that on liability; namely the defendant’s knowledge in that case of the fact that drivers were moving bins and its knowledge of the real risk of injury from doing so, the defendant’s conduct in that case was worse than in this. Furthermore, in that case there was some utility associated with the plaintiff’s conduct.
  1. [75]
    In Lynch v Kinney Shoes (supra) Cullinane J said that if the plaintiff before him had succeeded he would have reduced her damages on account of contributory negligence by 50%. The majority of the Court of Appeal (McMurdo P and Mullins J) would not have interfered with such a finding.
  1. [76]
    In this case, I am of the view that a finding of contributory negligence to the same extent, namely 50%, would be appropriate if the defendant had been successful with her action.

Quantum

  1. [77]
    The plaintiff had a long history of ill health which had precluded her from employment for many years. After she married in 1965, she had four children. The youngest, Shane, was born on 10 March 1973. From about 1990, when he would have turned 17, the normal age for children leaving school, she would, but for her ill-health, have clearly been able to return to full-time employment. She may well have been able to so much earlier. This was probably even more so after her husband injured himself, requiring receipt of a disability pension. In the circumstances of this case, I conclude that the reason that she did not return to the workforce was because of her own ill-health.
  1. [78]
    Furthermore, I have concluded, having heard all of the evidence, that, even without the subject fall, she would not have returned to the workforce because of that ill health. I do not propose to canvass all of the medical records or her Centrelink file in this judgment, but some are of particular relevance.
  1. [79]
    Exhibit 9 comprises her Centrelink records. An application for a disability support pension was made by her on 17 August 1999. She listed her illnesses and disabilities as follows:
  1. (i)
    chronic pain
  1. (ii)
    muscular weakness (dystrophy)
  1. (iii)
    rheumatoid arthritis
  1. (iv)
    osteoarthritis
  1. (v)
    blood clots (thrombosis)
  1. (vi)
    diabetes
  1. (vii)
    asthma
  1. [80]
    In my view, of even greater importance in assessing her physical capacity to work and to care for herself, was her own subjective description of her symptoms. She said in the application that she suffered a lot of pain and “cannot cope most of the time”. She said she could not walk far. She said she was limited or affected by her illnesses “all of the time” with respect to standing, lifting, walking, carrying, driving a car, bending, using public transport, operating appliances or machines, attending work or other appointments, understanding or following instructions, sleeping or caring for others. She said she was also “often limited or affected” with respect to sitting, writing, concentrating or remembering, breathing, managing her personal affairs or caring for herself. In my opinion, such a self description indicates a very high level of disability.
  1. [81]
    This was supported by her remarks, namely:

“Very weak in hands and arms, leg, back and hips. Jumble my words. Cannot concentrate. Cannot remember things. Very forgetful. Hands very painful. Have to rely on others to take me places. Very restful (sic)[1]suffer a lot of pain, wake up every time I move in pain”.

  1. [82]
    Her GP, in his section of the application for a pension, described her as suffering recurrent deep bone thrombosis and pulmonary embolism, rheumatoid arthritis, reflex sympathetic dystrophy, depression and anxiety.
  1. [83]
    In my view, her medical history, and more particularly her self-reported symptoms, indicate strongly that she was very unlikely to ever return to work.
  1. [84]
    It must be remembered that she had not been a paid member of the workforce from the time of her marriage in 1965, over 41 years prior to the subject accident.
  1. [85]
    Perusal of the medical chronology, Exhibit 18, confirms this opinion of her.
  1. [86]
    In March 2000 the Mater Hospital records indicate that she walks with aid, suffers from arthritis, and has shortness of breath after only a few metres. She told staff she could not walk upstairs and had suffered previous falls in the last 3 months. In February 2000 a letter from the Mater Hospital to her GP referred to several occasions when she had lost consciousness, with no good explanation.
  1. [87]
    In June 2001, the Logan Hospital referred to the fact that she had fallen on the day prior to attending.
  1. [88]
    In October 2001 the local hospital referred to dizziness and recurrent blackouts, hot flushes and consistent sweating together with chronic diarrhoea associated with abdominal pains. She was having up to fifteen bowel motions daily. There was reference also to a constellation of various medical conditions.
  1. [89]
    A letter of 9 July 2002 from the Endocrine Registrar of the Logan Hospital to a Dr Sampson referred to the following medical problems – hot flushes, Type 2 diabetes, aortic dilatation, liver lesions, carcinoma of the cervix, asthma, DVT, hypertension, hypercholesterolemia, anaemia, reflux, osteoarthritis and obesity.
  1. [90]
    There was a similar letter from Dr Roberts of the Logan Hospital in July 2003 which included references to diabetes complications including peripheral neuophopy.
  1. [91]
    In February 2004 her GP, indicated that she was suffering intermittent blackouts. In July 2004 she was taken to the Logan Hospital by the Queensland Ambulance Service with an acute coronary syndrome, which involved crushing chest pain radiating to her jaw and arm. In November 2004 there was again reference in the Logan Hospital records to a list of issues including chronic lower back pain and chronic pain syndrome.
  1. [92]
    In 2005 she began to experience particular problems with her left arm described by her GP in March 2005 as “tender + +”. In March 2005 she told him of the sudden onset of severe back pain when walking. She said she developed severe pain in her lower back and numbness in both legs when rushing due to rain and had fallen. An x-ray showed an L5-S1 central disc prolapse.
  1. [93]
    In May 2005 her GP and the Logan Hospital both referred to her left arm pain, weakness and dizziness. She had headaches. The GP said that the left arm was “floppy”. In July her neck was said to have been injured when she turned to look over her shoulder. She developed headaches, photophobia, dizziness and was said to be shaking.
  1. [94]
    The plaintiff unfortunately was diagnosed with breast cancer also. It seems this may have been responsible for complaints about her arm, and possibly also for other symptoms. She had treatment, including surgery in about November 2005 for her condition and subsequently radiation therapy and chemotherapy. Fortunately, she has survived although with a significant ongoing impairment of her right arm. She is, as a result, unable to do work above shoulder height such as hanging out washing.
  1. [95]
    On 5 June 2006 her GP records that she had again fallen when getting up from a sitting position. In July 2006 the Logan Hospital records refer to her suffering dizzy spells, nausea, headaches and neck pain. It was recorded that she had fallen three days earlier. Her GP records chronic pain, breast and back pain requiring panadeine forte. In November 2006, only about a month prior to the subject accident, the Logan Hospital records a history of visual disturbances, facial drooling, unsteady gait and blurred vision. This was said to be like “black curtains coming down and blacks out and falls (this has happened before)”.
  1. [96]
    A few days later on 22 November 2006 the Hospital refers to her as suffering depression. On 16 December the PA Hospital refers to nausea and mild diarrhoea and severe headaches.
  1. [97]
    In my view, these references in her medical history make it clear the plaintiff was not well and had suffered significant health issues which very severely affected her ability to work and enjoy life for many years prior to and up to the fall at the defendant’s store on 29 December 2006.
  1. [98]
    I was, in such circumstances, surprised in the extreme to read the plaintiff’s quantum statement which was tendered as Exhibit 14.
  1. [99]
    In that statement she said in respect of her health in the 1990s and early 2000s that:

“Slowly, but surely, taking small steps, my condition improved. By mid 1999 I managed to get my reflex sympathetic dystrophy under control and save for issues controlling my diabetes and periods of diarrhoea my overall health improved. I regained my confidence, gained mobility and put the walking stick away.”

She referred to her cancer treatment. She described falling on 5 June 2006. She says her symptoms of dizziness and unsteadiness on her feet in November 2006 were “short lived” and then stated:

“I think that realistically I would have enjoyed Christmas with my family and probably sought work in the New Year before landing some type of limited part-time work in a florist shop.”

  1. [100]
    In her statement she claimed past economic loss of $75 per week for the period from 1 February 2007 to the time of trial.
  1. [101]
    This approach to her claim was augmented by the evidence of some of her family, which I also had great difficulty accepting.
  1. [102]
    Shane Brady was asked how his mother’s health was at Christmas 2006 and he replied at T2-98 ll 31-2:

“At that stage, to me, was the best I have seen her for a long time.”

His wife, Jodie Brady, said in response to a similar question that she was:

“The best I’ve seen (her) in a long time.”

  1. [103]
    Mrs Brady in her evidence-in-chief had said that she had hurt her foot in the 1990s and had what she described as “a bit of a hard time” following that event but said her attendance at the Pain Clinic helped a lot. She said she had, “sort of, put my life back together.” She said she thought she had significantly improved from about 1999 (T1-35 ll8‑12). Later, when she was shown the application for her disability support pension of 17 August 1999 she said, at T1-40 l 46, that she thought she had probably started to improve in the early 2000s. She said her health was, “good, right up until I found the breast cancer” and said that prior to her having cancer she, around the house:

“Did virtually … a lot. I did nearly – I could do mostly everything.”

She said her arthritis seemed to be fine (at T1-44 ll 29‑30).

  1. [104]
    I do not accept that the plaintiff’s health had very significantly improved prior to the fall at the defendant’s store on 29 December 2006. In my view, such an assertion is completely at odds with the matters that I have referred to in her medical history. In my view, it is inconsistent with her continued receipt of disability pension from August 1999 up until the time of the accident. I was unimpressed by the manner of the plaintiff’s testimony or that of her family in respect of her pre-accident condition. In my view, the evidence given about her health prior to the accident was given with the view of minimising the effects of her pre-accident condition and maximising the effects of the accident on her health. I do not accept, having regard to her age, lack of work experience and very significant health issues, that there was any realistic prospect of her ever seeking paid employment in the future, let alone obtaining it. I am particularly sceptical of the assertions in her quantum statement to which I have referred. I think her assertion that “after spending Christmas with her family, she intended to then seek and was realistically likely to obtain work in a florist early in the New Year” was fanciful.
  1. [105]
    Indeed, in cross-examination, the plaintiff herself sought to resile from such a position (see T2-118 l 45 to T2-119 ll 1-5). She there agreed that she probably would not have worked in a florist shop even if she had not suffered the fall at the defendant’s store.
  1. [106]
    At the time her quantum statement was tendered I expressed significant misgivings about such an approach to proving the quantum of her claim. Those misgivings were compounded on reading the statement. I was concerned it really reflected the words of her legal advisers rather than the plaintiff herself. In my view, the assertions which she made reflected poorly on her credit. I reject the notion that she would have returned to work in the New Year as implausible. In my view, it is not possible to accept that she would have ever returned to the workforce.
  1. [107]
    This view is reinforced by consideration of the plaintiff’s reaction to the injury she suffered in the fall in December 2006, and by her subsequent medical history.
  1. [108]
    It is clear she fell and perhaps with sufficient force to cause her to lose consciousness. Certainly her husband gave evidence that she was knocked out. She also cut her mouth and bled. Fortunately, she has fully recovered from the effects of the knock to her head and cut to her mouth. Her main complaint was of injury to her right knee. She was taken to Bundaberg Hospital by the Queensland Ambulance Service. The Hospital records are Exhibit 2 of the proceedings. They record no loss of consciousness. She told the Hospital that she fell first on her right knee and noted sudden pain. She was unable to weight bear or adequately mobilise. The Hospital also records that she fell onto her right shoulder, hitting her mouth. It is said, however, that the only apparent injury was to her right patella.
  1. [109]
    She attended on her GP, Dr Hussein, on 5 January 2007. Her knee was said to be swollen. An x‑ray showed mild medial compartment degenerative changes, but no fracture or dislocation.
  1. [110]
    Her next attendance because of her knee was at the Logan Hospital on 24 January 2007. She was tearful and depressed. She said she had a painful knee and also headaches.
  1. [111]
    She apparently changed her GP and commenced seeing a Dr Liebenberg at Browns Plains Family Medical Practice from 1 February 2007. She was referred to a specialist orthopaedic surgeon, Dr Gallagher, who gave evidence in the proceedings.
  1. [112]
    Dr Gallagher in a letter to Dr Liebenberg of 8 February 2007 said she was most likely to be suffering from a simple contusion. He arranged an MRI for 14 February which showed some moderate osteoarthritis in part of the knee but no other significant abnormality. Although she continued to complain of pain her knee, her whole body scan showed no major abnormality in the knee. Both knees had some evidence of arthritis.
  1. [113]
    She was again referred to Dr Gallagher on 7 June 2007. An ultrasound of 18 July was largely normal, but there was a little fluid in the suprapatella senovial pouch and some thickening of the medial collateral ligament. An MRI was recommended.
  1. [114]
    In the month of July 2007 the PA Hospital records showed that she said the knee had collapsed some days earlier. A letter from the hospital to her GP suggests the problems in her knee might have been due to osteoarthritis, obesity and depression. An orthopaedic surgeon, Dr Quinn, who was at the hospital felt investigations showed that she suffered from osteoarthritis in both of her knees.
  1. [115]
    Following a repeat MRI on 3 August 2007, Dr Gallagher again wrote to her GP on 16 August and said there was no obvious major unstable pathology that would warrant an arthroscopy. In particular, the MRI showed no evidence of a miniscal tear.
  1. [116]
    Importantly in this case the plaintiff also saw doctors complaining of matters unrelated to the accident and many of which pre-dated her fall. For example, on 26 March 2007 she saw a general practitioner in relation to headaches requiring a back and neck massage. In May 2007 her GP again makes reference to headaches and massage. She was said to be stressed by family issues and worrying about the possible recurrence of her cancer. In June 2007 the Logan Hospital records dizziness, epigastric pain, nausea and right neck pain. The next month her GP records dizziness which she said started the previous day, nausea, diabetes and worries about possible leukaemia.
  1. [117]
    By December 2007 her GP described abdominal pain and diarrhoea, cold sweats and bloating, and having to rush to the toilet. She was said to be aching all over.
  1. [118]
    In February 2008 she was upset, emotional and tearful as a result of significant burn injuries to two of her grandsons. In June 2008, in addition to the knee problems, she spoke also of being stressed about her mother and of having no bowel control. In December 2008 she had significant epigastric pains, retching and vomiting over “the last few months”, which seemed to be worsening. She had diarrhoea, going to the toilet 15 times a day.
  1. [119]
    In my view, these symptoms seems to be a continuation of the problems she was having prior to her fall and indicate why I have found that, even without the subject accident, she would never have returned to work.
  1. [120]
    Although Dr Gallagher expressed some optimism about the plaintiff recovering from her knee problems, her condition, the plaintiff said, seems to have worsened. In December 2008 she was using a wheelchair. She was nauseous to touch. She described episodes of her knee locking and popping back in. In June 2008 he said an examination of her knee caused severe pain and nausea. She had further falls in September 2008 and Christmas 2008 but I do not attribute these to any injuries suffered in the subject accident. They were, rather, a continuation of such pre-existing incidents. In my view, the medical records and my own observation of the plaintiff showed that she had a somewhat histrionic response to the subject accident as she has, in my view, in relation to other health issues in the past. In my view, whether or not she had suffered the subject fall she would nevertheless have continued to develop significant symptoms of one sort or another which would have severely impacted on her life and precluded her from any form of employment.
  1. [121]
    Specialist medical reports were provided to the court from Dr Noel Langley of 24 September 2007 and 1 July 2010 and Dr Scott Fairbairn on 21 January 2008. They are both orthopaedic surgeons. A specialist occupational physician’s report of Dr Adam of 4 August 2008 was also provided as were conference notes of the defendant’s counsel with Dr Adam of 10 August 2010 and Dr Fairbairn of 2 August 2010. The defendants also called her treating orthopaedic surgeon, Dr Gallagher. Dr Gallagher wrote a number of reports for medical purposes in relation to the plaintiff’s injury. They became, collectively, Exhibit 28. Each of these doctors gave evidence as did two occupational therapists, Mr Ng and Mr Stephen Hoey. Mr Ng wrote a report of 25 February 2008 and they both jointly wrote a report of 27 July 2010.
  1. [122]
    I was particularly impressed by the evidence of Dr Gallagher who had, in my view, the significant advantage of being a treating doctor rather than a specialist engaged to provide a report for medico-legal purposes.
  1. [123]
    The issue of the advantages of an assessment by an independent treating doctor was an issue canvassed with Dr Langley. He agreed with the proposition, put to him by Mr Morton, counsel for the defendant, that a treating orthopaedic surgeon, who saw her soon after her injury, would be in the best position to assess the effect of the fall on the plaintiff.
  1. [124]
    In his letter of 8 February 2007 to Dr Liebenberg, Dr Gallagher said that the plaintiff had mild swelling over her right knee, a diminished range of movement and significant global tenderness. He described her as having “exquisite tenderness along the medial tibiofemoral joint line and the course of medial collateral ligament”. He thought she had suffered a blunt trauma with a simple contusion. He referred her for an MRI to exclude any chondralor or meniscal pathology.
  1. [125]
    He noted on 22 February 2007 that the MRI scan demonstrated no meniscal, ligamentous or articular chondral injury. He said her complaints of pain was somewhat suggestive of reflex sympathetic dystrophy (“RSD”), also called chronic regional pain syndrome. He recommended a bone scan to exclude such a diagnosis. He said in evidence that this possible diagnosis was raised because in his opinion her degree of pain was in excess of what he would have expected.
  1. [126]
    The results of the bone scan, also part of Exhibit 28, were consistent with arthritis. There was no definite evidence of recent bone injury. Dr Gallagher said in a report of 5 June that she did not demonstrate any features consistent with RSD. Because of the plaintiff’s concerns he referred her to Dr Phil Allen for a further opinion. Dr Gallagher said he thought there was only a minimal prospect of improvement with an arthroscope.
  1. [127]
    He subsequently referred her to another orthopaedic surgeon, Dr Dekkers, at the PA Hospital, but said he did not hear back from Dr Dekkers about the result of any examination. Dr Dekkers was not called to give evidence although there was some record of his having seen her in the PA Hospital records.
  1. [128]
    Dr Liebenberg again referred the plaintiff to Dr Gallagher in July 2007 following an episode that week when her knee was said to have given way whilst she was standing in the doctor’s doorway.
  1. [129]
    A repeat MRI was performed on 3 August 2007. Dr Gallagher said that once again there was no obvious miniscal tear. He again said an arthroscope was not warranted. When giving evidence he said that she reported tenderness but said he did not note swelling of her knee at this time.
  1. [130]
    Dr Gallagher said that she had some subchondral oedema which he said was often associated with arthritis. He felt that this was due to wear and tear rather than trauma (T2-25 ll 10‑16).
  1. [131]
    Dr Gallagher made clear he accepted that the plaintiff had suffered trauma to her knee with swelling as a result. He said, however, he noted such swelling at the time only of his first seeing her on 8 February 2007 (T2-27 – 28) although he described it as only mild (T2-28 ll 3‑4). He said he performed tests and elucidated the swelling was an effusion, rather than effusion, and so came from soft tissue outside the knee rather than from within the knee itself. He says this was confirmed by the MRI (T2‑28 ll 56‑58).
  1. [132]
    Dr Gallagher said that in his opinion the underlying condition was not caused by the injury but it was possible for the injury to exacerbate the symptoms of the underlying condition T35 ll 50‑56). He said that it was unlikely but possible that she did not have significant symptoms before the fall, but that her symptoms had become manifest thereafter (T2-35 ll 57‑60). I note there did not appear to be a history of particular complaint about either knee, pre-accident, although she did complain of aching all over on occasions.
  1. [133]
    Dr Gallagher said, however, that such an approach would be “difficult for me to explain”. He said falls from a defective knee usually occurred because of gross mechanical dysfunction and in this case, no such lesion had been identified (T2-40 ll 10‑22). He said there was a condition, quadriceps inhibition, associated with some pain within the knee such that the body effectively shuts down all of the muscles (T2-40 ll 30‑40). He said, however, that there was no mechanical irregularity to account for her leg pain in this case. He said that quadriceps inhibition was not common. He said that it was in his opinion possible but not probable given the symptoms (T2-41 ll 38‑46).
  1. [134]
    In my view, on the basis of Dr Gallagher’s evidence, which I accept, I find:
  1. (i)
    that the plaintiff suffered no significant mechanical lesion as a result of her fall;
  1. (ii)
    that whilst RSD and quadriceps inhibition are theoretical possible explanations of some of the symptoms of which the plaintiff complained, I do not accept on balance that she has suffered any such condition.
  1. [135]
    Dr Langley’s opinion as expressed in his report of 24 September 2007 to the plaintiff’s solicitor, was that her injuries was consistent with a fall over the roll bar. He assessed an 8% whole person impairment as a result of her symptoms, especially the reduced range of movement of her knee. He said her injury would restrict her performance of household tasks. He felt her condition would progress and in the future she might require ongoing physiotherapy and an arthroscope.
  1. [136]
    I note that he said that her “general health is reasonable”. He referred to her breast cancer, heart disease and blood clots, asthma and diabetes. He did not, however, refer to the myriad range of symptoms I have set out earlier including prior chronic pain throughout her body, dizziness, blackouts, obesity and diarrhoea or other issues I have referred to which, in my view, precluded her from work for many years right up to the time of the subject accident and would have done so in the future. His failure to do so reflects, in my view, on his impartiality.
  1. [137]
    In his subsequent report of 7 July 2010 Dr Langley said that she reported that prior to December 2006 she was doing some gardening. She said that her husband did the vacuuming, mopping and hanging out of the washing. Her case was that this was because of problems with her right arm associated with the cancer. He confirmed his earlier assessment of her impairment. He said she may require an arthroscopy and in 10 to 15 years may require a total knee replacement. The cost of an arthroscopy was said to be $3,891 and the cost of a knee replacement $21,494.
  1. [138]
    I do not accept Dr Langley’s evidence. In particular I am concerned by his statement that her general health prior to the subject accident was reasonable. I do not think that view could possibly be supported by any reading the medical reports and records which had been provided to him. I prefer the evidence of her treat specialist, Dr Gallagher.
  1. [139]
    Dr Fairbairn in his report of January 2008, noted her prior medical records and history of RSD, diabetes, hypertension, hypercholesterolemia, obesity, osteoarthritis and other conditions. He described the plaintiff’s past medical history as “significant”. In my view, that is, if anything, an understatement.
  1. [140]
    He noted that she gave a history of a level of activity prior to her fall which I find to be unsupported by the evidence which I accept. I do not think it was true. He said that she described doing gardening regularly until November 2005 when she had breast cancer surgery. She said that prior to her fall she would walk daily to the park and one to two kilometres to shops. She said she was doing all household tasks up until her fall including all the cooking, cleaning, vacuuming and mopping. She described only having difficulty putting washing on the line due to the symptoms of breast surgery.
  1. [141]
    Dr Fairbairn said on examination that she had a significantly reduced range of movement of the knees which he said was, however, inconsistent with what he observed of her when seated in a chair. The circumference of the quadriceps was equal the left and right. He described a “dramatic response” to light palpitation of multiple areas around the knee. As a result he said it was not possible to carry out an appropriate examination of the knee.
  1. [142]
    Dr Fairbairn said that he was unable to assess any level of impairment due to significant functional overlay in her presentation. He said there was no objective evidence to support her subjective complaints.
  1. [143]
    In his evidence he said that he believed there would have been muscle wasting of her quadriceps if there was a real injury to her knee. I accept Dr Fairburn’s evidence about the issue.
  1. [144]
    In my view, the plaintiff’s dramatic presentation of her symptoms is not an indication of any real organic condition. I do not accept she suffered any significant injuries to her knee which might explain her complaints of significant pain. In the absence of hearing any evidence of a psychiatric condition I conclude that she has either consciously or unconsciously overstated her symptoms. I am unable to decide which. In my view, the plaintiff clearly suffered an injury to her knee involving a simple blunt injury which brought on some symptoms including pain and some swelling. I find that for a period, perhaps for up to 6 months or so, she would have suffered some symptoms, but thereafter her complaints of pain have been either consciously or unconsciously exaggerated. As I have said, I am unable to conclude which. I do note that I was generally unimpressed by the plaintiff’s evidence and a tendency which I discerned to minimise the effect of her significant pre-accident problems and exaggerate the effects of this incident. In my view, if this injury had not occurred the plaintiff would nevertheless have continued seeing doctors about a range of medical problems.
  1. [145]
    Evidence of importance, in view of my finding that the plaintiff was, either consciously or unconsciously, exaggerating her symptoms, was given by both Dr Langley and Dr Fairbairn.
  1. [146]
    Dr Langley was asked whether patients who have significant knee pain will usually show muscle wasting of the quadriceps within a matter of weeks. He responded by saying that that depended on what they did with their leg. He said that if there was an acute injury, he would expect some muscle wasting. He confirmed that he did not find any wasting. He said such wasting, if it occurs, is due to non-use.
  1. [147]
    Dr Fairbairn gave evidence that if a person had significant pain over a long period he would expect significant quadriceps wasting due to non-use. He said even if a person were confined to a wheelchair he would expect the painful leg to be more wasted due to the weight put on the good leg during transfers stimulating the quadriceps muscle in that leg. He said this would be the case if a person was using a wheelie-walker, due to the person putting stress on the good leg when so walking, and that he would expect a similar phenomena to occur if a person was using crutches or a walking stick.
  1. [148]
    In circumstances where there was no wasting of the plaintiff’s quadriceps at the time of medical examinations, this evidence tends to confirm my view that she is exaggerating the symptoms and is in fact using the right leg as much as she does her left. This would tend to cause me to infer she is deliberately exaggerating but I do not think it necessary I make such a finding.
  1. [149]
    At the trial evidence was addressed to the question of whether video surveillance of the plaintiff taken in July 2009 indicated she was exaggerating her symptoms, and whether she was using the walking stick shown in the video appropriately. The video showed her moving around the area near to and inside a shop. She did not need a wheelchair (which was used when she came into court, though she got out of it and walked to the witness box, except on one occasion when she gave evidence from the wheelchair), or a wheelie-walker, but did have a walking stick with her. Perhaps not surprisingly, witnesses called by the plaintiff suggested her use of the stick was consistent with her having an injured knee and medical practitioners called by the defendant said otherwise.
  1. [150]
    My own impression was that she did appear to make little use of the stick, though I was unable to detect whether she in fact used it inappropriately, in the sense suggested by defence counsel, that is, that she used it when her good leg was in contact with the ground, rather than when her allegedly injured leg was in contact with the ground. My view was that she really did not rely on it at all, consistent with my overall impression that she was exaggerating the effect of the injury, as I have previously described, and with the fact that her quadriceps in her right leg have not wasted. I did notice that she used the stick when crossing a gutter outside the shop. In my view this could well be due to a learned behaviour pattern or to pain in her leg due to pre-existing arthritis. I am satisfied that because of the matters I have described, the effects of the fall were temporary and that the plaintiff has no ongoing trauma as a result of the fall.

Assessment

  1. [151]
    In the circumstances, I would assess the plaintiff as having suffered an injury to her right knee. Under the regulations of the Civil Liability Act I would assess this under Item 140 having an ISV Range of 0 to 5. The plaintiff’s counsel urged upon me a view that she suffered an injury more properly classified under Item 139. I note that examples of such injury are “dislocation or torn cartilage or meniscus causing ongoing pain or instability, wasting and weakness”.
  1. [152]
    An ISV at the top of the range for such an injury of 6 to 10 is said to be appropriate if there is a whole person impairment for the injury of 8%. I have, of course, rejected the evidence of Dr Langley and find her injury to have been relatively minor and the symptoms to have been temporary.
  1. [153]
    In my view, the injury to her mouth and head should be assessed under Item 17 and 104 of the regulation. Each has an ISV range of 0-5. In my view, the plaintiff’s multiple injuries can be properly accommodated within the scope of the scale of 0 to 5 allowed under Item 140. I am unable to conclude she suffered any other injuries, although I am aware that she did from time to time make complaints of such injuries to doctors. The lack of any immediate complaint of any such injury at the Bundaberg Hospital causes me to reject her as having suffered any further injuries in the fall.
  1. [154]
    In the circumstances, I assess her injuries as amounting to an ISV of 5 and allow $5,000 for general damages.
  1. [155]
    I have dealt already with economic loss. I find she has suffered, and will suffer, no loss because:
  1. (i)
    she never had any real intention of ever returning to work, or plan to do so;
  1. (ii)
    if she had hoped to return to work at some stage in the future, medical conditions, other than those suffered in the fall, would have precluded her from doing so;
  1. (iii)
    the effect of the fall on her knee was only temporary and relatively minor. Her ongoing perception of pain and disability in her knee is a result of conscious or unconscious exaggeration and does not in itself preclude her from work.
  1. [156]
    A claim is also made for significant care and for items to assist the plaintiff with living in the house. Because of what I have said about the nature of her symptoms arising from the accident, it is not necessary to consider the reports of Mr Ng and Mr Hoey. I find that the plaintiff has not persuaded me that she had a need for care beyond what would have been required in any case because of her pre-existing disabilities other than to a small degree and for a very short period. I find she has not satisfied me of a need for care in the past or future beyond the threshold requirements of s 59 of the Civil Liability Act.
  1. [157]
    I would allow a small sum for out-of-pocket expenses in the period following her fall. It is not practical or feasible in the circumstances to try to calculate exactly what medical appointments were accident related so that such expense can be calculated with precision. I would adopt a broad-brush approach to such an assessment and allow $2,500 including the costs of the Queensland Ambulance Service and Bundaberg Hospital expenses and other expenses associated with her immediate need to see a GP and initial referral to Dr Gallagher.
  1. [158]
    I would allow nothing for future expenses.
  1. [159]
    In all therefore, I assess the quantum of the plaintiff’s injury in the sum of $7,500.
  1. [160]
    I might add that this case amplifies a problem that can be caused in an action for assessment of damages where a plaintiff significantly exaggerates his or her claim.
  1. [161]
    In such circumstances it is in my view almost impossible to assess the real extent of the person’s injury. What is appropriate to be done in such cases, in my view, is for a judge to assess the injuries on the basis of what might normally be expected to flow from such an injury and what might generally happen with respect to the course of recovery of an injury such as that suffered. In the circumstances of this case, that involved, in my view, acceptance of the opinions of Dr Gallagher and Dr Fairburn which limited the plaintiff’s symptoms to a period of months only.
  1. [162]
    I give judgment for the defendant.
  1. [163]
    I will hear argument as to costs.

EXHIBIT 15

Brady v Woolworths Ltd (No 3) [2010] QDC 346

Footnotes

[1] In response to a question she agreed that the word “restful” was a mistake and she actually meant “restless”.

Close

Editorial Notes

  • Published Case Name:

    Gloria Helen Brady v Woolworths Ltd (No 3)

  • Shortened Case Name:

    Brady v Woolworths Ltd (No 3)

  • MNC:

    [2010] QDC 346

  • Court:

    QDC

  • Judge(s):

    Reid DCJ

  • Date:

    10 Sep 2010

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
David Jones Ltd v Bates (2001) NSWCA 233
1 citation
Jump To
Cite 1 - (2001) NSWCA 233
Lynch v Kinney Shoes (Australia) Ltd [2004] QSC 370
2 citations
Jump To
Cite 1 - [2004] QSC 370
Cite 2 - [2004] QSC 370
Lynch v Kinney Shoes (Australia) Ltd [2005] QCA 326
2 citations
Jump To
Cite 1 - [2005] QCA 326
Cite 2 - [2005] QCA 326
Phillis v Daly (1988) 15 NSW LR 65
1 citation
Jump To
Cite 1 - (1988) 15 NSW LR 65
Rasic v Cruz (2000) NSWCA 66
3 citations
Jump To
Cite 1 - (2000) NSWCA 66
Cite 2 - (2000) NSWCA 66
Cite 3 - (2000) NSWCA 66
Thompson v Woolworths (Q'Land) Pty Limited [2005] HCA 19
2 citations
Jump To
Cite 1 - [2005] HCA 19
Cite 2 - [2005] HCA 19

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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