McMurdo P with Applegarth and Flanagan JJ agreeing.
The plaintiff fell while on recess at work walking through the fresh fruit section on her way to lunch on a grape and injured herself.
The defendant appealed in relation to the plaintiff’s credibility, liability, contributory negligence and quantum. Credibility was easily resolved in favour of the plaintiff.
Liability centred on the acceptance of Mr Kahler’s evidence as an expert and the basis of his opinion. Mr Kahler’s expertise was accepted. Mr Kahler formed the view that the smooth vinyl-tiled nature of the floor required measures to be put in place to deal with expected contaminants, such as grapes. The measures to be put in place included packing of grapes, mats on the floor and routine inspections every 15 – 20 minutes. In Mr Kahler’s opinion, the best form of control was the mats.
The defendant objected to Mr Kahler’s opinion because he did not undertake a slip test or take measurements. The court found that it would have been pointless because the flooring and setup and since changed.
The defendant argued that simply because a means of avoiding the incident was identified did not mean that under Section 305C(b) Workers’ Compensation and Rehabilitation Act 2003 that it established a breach of duty. The analysis further required the application of the principle in Wyong Shire Council v Shirt as to the nature of the risk and what a reasonable person would do in response to that risk.
The court relied on the defendant’s Fact Sheet which stated of the incidents of falls in its stores; grapes were responsible for 10%. Similarly, in the Fact Sheet, one of the recommended solutions was to place a mat in the display areas.
Hence, it was unsurprising the court found liability was made out and the appeal on liability was dismissed.
The court dealt with contributory negligence in short order. The finding that the defendant could have avoided the incident by placing the mat on the floor was more relevant in assessing the cause than the failure of the plaintiff to “scan the floor and every footstep for fallen grapes“.
The defendant further appealed in relation to the assessment of quantum. Two aspects of are of interest. The first being the allegation the plaintiff failed to comply with s 267(2) of the Workers’ Compensation and Rehabilitation Act 2003 in relation to vocational assessment and rehabilitation. The court considered the relevant correspondence and conduct and the ancillary provisions relating to mitigating loss. It was clear to the court that the requirement under ss 231 and 232 only applied to the compensation aspect and ceased when the plaintiff commenced her claim for damages. As to the allegation of failing to mitigate, the court did not overrule the primary judge’s opinion that the action by the defendant “smacked of a self-serving paper trail for litigious purposes rather than a genuine attempt to assist and rehabilitate.”
The defendant was, however, successful on one ground of their appeal, namely the trial judge erred in allowing an increase in the plaintiff’s wages rather than assessing the wages at the time of the loss. The court found that the High Court authority of Todorovic v Waller “determined that wage increases and inflation should not be taken into account, save by applying the relevant discount to reach present value.” On this basis, the court reduced the quantum by $54,000.00.
David Cormack – Brisbane Barrister & Mediator