Significant exaggeration and credit issues – alleged trip in store

Brady v Woolworths Ltd [2010] QDC 346

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 riskLynch v Kinney Shoes (Australia) Limited [2005] QCA 326 – appliedLynch 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

Reid DCJ

Issues:

Both liability and quantum were in issue. The plaintiff alleged she had tripped over a “roll bar” (mobile clothes rack) in a Big W Store on 29 December 2006, in Bundaberg, as opposed to deliberately stepping through it and catching her ‘trailing’ leg and tripping. She claimed an injury to her right knee. At the time she was 59 years and 10 months old, having been born on 19 February 1947. At the time of trial she was 63 years, but claimed an improvement in health, whereas the defendant alleged significant pre-existing conditions.

Liability:

In short compass Reid DCJ did not accept the evidence of the plaintiff or her witnesses. Furthermore, his Honour made findings that where witnesses could have been called, and were not, an adverse inference was open to be made.

Examples:

[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.

[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.

[10] His (sic Shane Brady) 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.

[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.

[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.

Defendant’s case

[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.

[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.”

[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.

[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.

[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.

[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)

[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

Findings

[35] In the circumstances, I find:

(i) the roll bar was readily visible to any one taking reasonable care for their own safety;

(ii) prior to tripping the plaintiff in fact saw the roll bar;

(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.

[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).

[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.

Law

[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:

(i) Was there a foreseeable risk of injury to the plaintiff?

(ii) Did the defendant fail to do what a reasonable person would do by way of response to that foreseeable risk?

(iii) Was there a causal relationship between any failure to act reasonably by way of such response and the plaintiff’s injuries?

[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.

[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”.”

[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.

[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.

[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.

[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.

[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.

[67] I therefore find that the plaintiff fails with her action.

[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”.”

[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.

[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.

[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.

[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.

[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

[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.

[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.

[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:

In summary, the plaintiff had a long history of disabilities, illnesses and conditions which were well documented. In 1999 to Centrelink she recorded:

i) chronic pain

(ii) muscular weakness (dystrophy)

(iii) rheumatoid arthritis

(iv) osteoarthritis

(v) blood clots (thrombosis)

(vi) diabetes

(vii) asthma

In the intervening period her condition had deteriorated and she had also suffered breast cancer, received treatment for it, which had significantly impaired her right arm. She also fell in June 2006:

[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)”.

[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.

His Honour found:

[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.

[98] I was, in such circumstances, surprised in the extreme to read the plaintiff’s quantum statement which was tendered as Exhibit 14.

[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.”

[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.

[101] This approach to her claim was augmented by the evidence of some of her family, which I also had great difficulty accepting.

[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.

[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.

[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.

[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.

[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.

[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.

[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.

[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.

[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).

[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).

[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.

[134] In my view, on the basis of Dr Gallagher’s evidence, which I accept, I find:

(i) that the plaintiff suffered no significant mechanical lesion as a result of her fall;

(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.

[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.

[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.

[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.

[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.

[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.

Assessment

[154] In the circumstances, I assess her injuries as amounting to an ISV of 5 and allow $5,000 for general damages.

[155] I have dealt already with economic loss. I find she has suffered, and will suffer, no loss because:

(i) she never had any real intention of ever returning to work, or plan to do so;

(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;

(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.

[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.

[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.

[158] I would allow nothing for future expenses.

[159] In all therefore, I assess the quantum of the plaintiff’s injury in the sum of $7,500.

[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.

[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.

[162] I give judgment for the defendant.

Brisbane Barrister – David Cormack

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