Vera Harti v Coles Myer Ltd [1994] ACTSC 102 (30 September 1994)

SUPREME COURT OF THE ACT

VERA HARTI v. COLES MYER LTD
No. SC732 of 1992
Number of pages - 12
Negligence

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MASTER A. HOGAN

CATCHWORDS

Negligence - Occupier's Liability - Department Store - Vegetable matter on tiled floor - Plaintiff injured by slipping - No evidence of time during which matter on floor - Not inherently likely - Not result of Defendant's activities - Failure to inspect not cause of accident.

Hampton Court v Crooks [1957] HCA 28; (1957) 97 CLR 367.

Dulhunty v J.B. Young Ltd (1976) 50 ALJR 150.
Australian Safeway Stores v Zaluzna [1987] HCA 7; (1987) 162 CLR 479.
Kelly v Lend Lease Retail Pty Limited (1993) Aust. Torts Rep. 81-216.

HEARING

CANBERRA, 29-30 June and 12 September 1994
30:9:1994

Counsel for the Plaintiff: Mr B. Salmon QC with Mr C. Ryan

Instructing Solicitors: T. Barry Williams

Counsel for the Defendant: Mr M. Joseph

Instructing Solicitors: Nelson and Co.

ORDER

THE COURT ORDERS THAT:

1. Judgment be entered for the Defendant.
2. The Plaintiff pay the Defendant's costs.

DECISION

MASTER A. HOGAN This is an action for damages for personal injury sustained by the plaintiff when she fell whilst in the department store conducted by the defendant at the Canberra Centre.

2. The plaintiff is a married woman, born on 22 August 1957. She is an experienced hairdresser, having engaged in that occupation since 1975, both in Australia and overseas.

3. At the time of the accident she was employed by a company which operated a salon within the defendant's department store, on the third level.

4. On 20 February 1991 at about 2pm she left the salon where she had been working, to buy some lunch. She descended to the second floor on the escalator, and got off the escalator at that level, intending to turn to the left.

5. At the foot of the escalator there is a metal plate. A short distance further on there is an area covered with marble style tiles. Further on the floor is carpeted. To the left of the escalator down which she had come is the down escalator to the first level. Further to the left, and beyond a low partition separating the ladies' fashion department from the entry to the down escalator, the floor is carpeted.

6. As she descended the escalator she was accompanied by a Mr Taylor, a display designer employed by the defendant, whom she knew also as a client of the hairdressing salon.

7. She claims that as she stepped off the escalator, and while she was still on the tiled part of the floor, she fell. She claimed in her evidence in chief that she took only two steps off the escalator before she fell. She fell on to her right side. She saw some lettuce and tomato on the floor. She remained there for some time, and a lady from the fashion department came and cleaned up the food matter with some tissue paper. A Mr Brierly, a security officer, then came and assisted her to the sick bay.

8. About a week after the accident on 27 February 1991, the plaintiff filled in a claim form for workers' compensation. Counsel for the defendant asked her a number of questions about it, but, although it was marked for identification, he did not tender it, although invited to do so. The questions were confused and confusing, which perhaps explains why the plaintiff's answers were the same. But I think I can discern an admission on her part that in the document she described the part of her body that was injured as "My lower back, neck. Also suffering from occasional headaches". She was also not able to point to any part of it that mentioned any injury to her hip.

9. Counsel also asked some questions about a three page document, which was a statement, signed by her, which she made to an insurance company on 10 April 1991, still less than three months after the accident. Again, for reasons which escape me, counsel did not tender the actual document, which was also marked for identification, although he had clearly laid the ground entitling him to do so. Since counsel for the plaintiff did not seek to tender it either, after she had been cross examined about it, I can not speculate about what inferences might be drawn either way from the failure to introduce it into evidence.

10. However, although she insisted that she did in fact fall on her right side, she conceded that in the document she said "left".

11. Mr Taylor was called by the plaintiff. He said that he accompanied her down the escalator, and as they alighted she went forward and slipped on a slice of tomato and fell. In his evidence he described her as falling so that most of her landed on the carpeted section. He thought she landed heavily on her left side.

12. In a written statement made on 11 April 1991 Mr Taylor said, "Although I saw her slip I didn't see her impact with the ground as she landed behind a partition and out of my sight."

13. In another written statement made on 18 May 1993 he said, "...we were still talking as we got to the bottom of the escalator, I believe that she was going to the staff entrance which would have been off to the left, I was going to continue down the escalator to the next level, we got to the metal part of the escalator, I backed around towards the next escalator to go to level one, I was still facing her carrying on our conversation as we left the escalator, she would have taken about 3 to 5 steps away from the metal plate at the bottom of the escalator, still on the tiles, she then stepped on to some stuff on the floor and she fell awkwardly, landing on her stomach, she may have placed her arms out to break her fall. She stumbled around before falling forward to the floor, I was only a few feet from her, I was probably on the top of the metal plate at the escalator, I saw her fall and hit the floor, I rushed to her aid."

14. While the plaintiff said in evidence that Mr Taylor did not assist her, he said that he helped her to her feet and obtained a chair for her, and then went to look for a security officer.

15. Mr Brierly, a security officer employed by the defendant, was called by the plaintiff. He gave evidence about the cleaning system in place at the time in the store, but was not able to recall having taken any part in the plaintiff's fall or in its aftermath.

16. Mrs Burnell was at the time a sales assistant in the ladies fashion department on the second level of the store. She recalled an incident involving the plaintiff, whom she knew to work in the hairdressing salon. Her position was close to the foot of the down escalator, on the middle level. She heard a noise. She ran to the escalator, where she saw the plaintiff lying on the floor, crying and upset. Mr Taylor was there. There was some tomato on the floor, which she cleaned up with some tissue paper. Someone was helping the plaintiff to a chair as she did so.

17. Mr Brown, a security officer, was called by the defendant. On the day of the accident he received a call on his two way radio and went to the ladies fashions department. He there saw the plaintiff getting up from the floor. He said in evidence in chief, as I understood him, that she was on the carpeted area about four metres from the escalator. In cross examination he said she was four metres from the tiled area. He looked in the vicinity to see what made her fall, but could not see anything. He took her to the first aid room.

18. Mrs Thompson was called by the defendant. She was employed by a contract cleaning firm to work as a cleaner in the defendant's shop. She was informed by Mr Brown that the plaintiff had fallen. She went to the place where she fell. She looked in the carpeted area and in the tiled area near the escalator, but could not find anything. She later cleaned up the ashtrays and bins, but did not find any food in any of them.

19. There were many inconsistencies in the evidence of the plaintiff, and particularly of Mr Taylor. They were fully explored and exploited by counsel for the defendant. I need not recount and deal with them all. I think it is obvious that in matters of detail Mr Taylor does not have the soundest recollection of all the witnesses.

20. But those inconsistencies in matters of detail do not cause me to doubt the main elements of the event. I am satisfied that the plaintiff did fall, near the foot of the down escalator on the second level. I do not think it matters whether she finished her fall on the tiled area or the carpeted area. I accept the evidence of the plaintiff and Mrs Burnell, from which I now infer that she fell because there was some vegetable matter on the floor. I think Mrs Burnell had cleaned it up before Mr Brown arrived, and the failure to find it on the part of Mrs Thompson and Mr Brown does not cause me to doubt the plaintiff's and Mrs Burnell's evidence about the presence of vegetable matter on the tiled surface, which caused the plaintiff to fall heavily.

21. The plaintiff had been informed shortly before the accident that she was pregnant. The force of the fall concerned her greatly on that account. She was shaken and upset, but after resting in the sick bay for a short time she returned to her work place. She attended to a client who had an appointment. On leaving work she attended Dr Fitt at the Scullin Health Centre. He recorded that she was suffering from the effects of a fall at work, and gave her a certificate for 2 days off work. There is no report from Dr Fitt detailing her specific complaints. She did not return to work. Dr Fitt issued a series of certificates for her absences through to 24 December 1991. The descriptions of her complaints were "neck pain", "ongoing shoulder pain", "injured arm and back", "ongoing (illegible) pain in neck", "ongoing neck injury", "neck and back ache" and "recurrent back ache".

22. However, her baby was born on 26 August 1991, so that she would not have worked over the whole of that period in any event. Nor do I recall any evidence about how soon she would have returned to work had she not been injured.

23. On 27 March 1991 she was examined by Dr Scott-Findlay for the Workers' Compensation insurer of the employer. She told him that she fell on to her right side and her back and injured it.

24. A lot of attention was paid at the hearing to the differing versions that she gave about how precisely she fell. I do not place much weight on the undoubted discrepancies that there were in her descriptions at various times. In such a fall it is quite understandable that muscles would be strained in various parts of the body. It is not necessary to demonstrate trauma to a particular part by contact with the floor in order to accept her complaints of pain in that part. But, on the other hand, the plaintiff was not a good historian, and it is necessary to bear that fact in mind when weighing up some aspects of her evidence. As Dr Scott-Findlay noted, "She described all her symptoms in hyperbole". She had been receiving physiotherapy for what Dr Fitt had obviously diagnosed as soft tissue injury. No Xrays had been taken.

25. She complained to Dr Scott-Findlay of soreness in the neck and back, and some vague discomfort in her right hand.

26. On examination he found her back to be normal in all respects. In his opinion she had suffered a soft tissue injury of the right side of the body and some residual discomfort from bruising which he expected to disappear. Her main problem was soft tissue injury to the neck. He expected her to return to normal within a month or so.

27. On 31 July 1991 she was examined by Dr Andrea, also for the workers' compensation insurer. He recorded her complaints as bruising to the right shoulder and buttock and soft tissue injuries to her back. The bruises had improved but she suffered pain in the right shoulder at times. Again, her main complaint was of the neck. It fluctuated, and was aggravated by housework or lifting. There was a complaint of vague tingling in the tips of the fingers from time to time.

28. On examination she moved easily. There was very slight restriction on turning the head to the right or extending the neck. There was no spasm, though she complained of tenderness of the muscles.

29. His diagnosis was that she had suffered relatively minor soft tissue injuries.

30. Dr Scott-Findlay examined her again on 17 December 1991. Her son had been born normally on 26 August 1991. She complained of discomfort on the right side of her arm and the back of her neck, with some pins and needles in her hand. She said she had difficulty handling the baby. She also complained of pain in the right leg and over the pelvis. On examination he could find no evidence of any organic disease.

31. In her evidence she said that after the birth of her son her right hip was troubling her. The examination by Dr Scott-Findlay on 17 December 1991 is the first occasion on which there was recorded any complaint relating to her hip or pelvis. She had seen a physiotherapist about 16 times between March and July 1991, and the only complaints recorded in the physiotherapist's records related to headaches, the cervical spine and the mid back area. There is no reference in them to complaints about the right side or hip. Nor is there any reference to the hip in the work certificates issued by Dr Fitt.

32. Dr Fitt referred her to Dr Corry, rehabilitation specialist, who saw her first on 20 January 1992. She told him that she had landed heavily on her right side and hip.

33. She said her headaches had resolved, but she continued to get pain and weakness in the right side of her body, particularly around the right arm and right hip joint region. She noted a catching sensation around the right hip with walking. At times the pain was spreading to the outer thigh and calf.

34. On examination there was no significant abnormality around the neck or shoulder region, apart from a complaint of slight muscle tenderness in the upper trapezius muscle. There was a good range of cervical movement, and no neurological disturbances.

35. Examination of her lower limbs revealed marked tenderness around the right hip and groin, with restriction of hip joint movement, accompanied by pain.

36. Dr Corry ordered Xrays of both hip joints, which showed changes consistent with a congenital hip displacement. Since she denied any history of hip complaints before the fall, he was prepared to conclude that the fall had precipitated symptoms in a joint that was susceptible to injury. He arranged for ongoing physiotherapy. When he saw her again on 23 March 1992 she continued to report variable pain, and limitation of walking tolerance to only 20 minutes. He referred her to Dr Coyle for an orthopedic surgeon's opinion.

37. Dr Coyle examined her on 30 June 1992. She also told him that she fell heavily onto her right side. She said that once she recovered from the acute shock and bruising she became aware of slowly progressive pain in her right hip and groin. On examining her and the Xrays Dr Coyle expressed the same opinion as Dr Corry. Accepting the history that she had given him he attributed a precipitation of symptoms to the accident. He thought that the symptoms would almost certainly have occurred in time, even had there been no accident, possibly within the next ten years. It was significant to him that she had no symptoms from her left hip, which radiologically appeared as abnormal as her right, so that he thought that the symptoms in the right hip would not have occurred to date in the absence of the fall.

38. He advised her to lose weight, but otherwise there is no conservative treatment that would help. She had, in his opinion, reached the stage where surgical intervention would be required, even, possibly, in the form of a total hip replacement.

39. Dr Coyle gave oral evidence and was cross examined. He gave the following answers in cross examination;

"MR JOSEPH: Now, as to whether this fall made an otherwise a-symptomatic
condition symptomatic is critically dependant on history of symptoms. Do
you agree with that? --- Yes, I do.
If there is no history of symptoms for a significant period after the
fall you would not be prepared to relate the symptoms, at least, to the
fall? --- Yes.
Now, did, and if in fact, that period and indeed you would on your
history as I understand the history you obtained, (sic) expect there to
be a history of symptoms dating from the date of the very fall and
thereafter? --- Yes, yes.
If there was no such history you would not be prepared to consider that
the symptoms at least were caused as a result of the fall? --- Yes, I
think if the symptoms are separated from the fall by a matter of days or
perhaps a week or two, then I would accept that there was a causal
relationship but if it was much more - - -
Months? --- Yes, I wouldn't accept that there was a causal
relationship."

40. He also conceded that it is not unusual for persons with degenerative changes in both hips only to have symptoms on one side, and that the fact that the pain was on her right side alone did not prove or disprove trauma as being the cause.

41. Dr Corry was overseas when the hearing was resumed, so that counsel for the defendant did not have the opportunity of cross examining him. I think it is unlikely that his answers would have differed significantly from those of Dr Coyle.

42. Dr Scott-Findlay gave evidence by telephone and was cross examined. At his examination in March 1991 the plaintiff had said that she fell onto her right side and her back and injured it. She complained of still being sore in her neck and back. On his examination her knees, her ankles and her hips all appeared normal. Asked what that meant, he responded, "Well certainly there was no evidence in an objective examination that there was abnormality, and I don't remember her expressing any discomfort there."

43. At his second examination, in December 1991, he had recorded the history given to him as "...this woman fell on her right side, twisting her right arm, bruising her right hip and stretching her neck on the right side." Her complaint of pain recorded in his report, is of "pain in her right leg and over the right ala of the pelvis". As I understand it, that is not the hip joint. She did not complain to him of any pain in the area of the right hip. But he did record a comment, that she said, "It clicks". He distinguished that comment from a complaint of pain.

44. In evidence in chief he gave the following answers;

"Now, doctor, I want you to assume that, in fact, there is no evidence
of pain in the hip from the time of the fall until some time early in
1992? --- Yes, I think that was probably right.
Pardon? --- Yes, I think so, I've got no record of it.
But I am asking you to assume it for the moment. If, in fact, the fall
in 1991 - February 1991 - aggravated that degenerative condition, would
you have expected pain in the hip to have been complained of soon
thereafter? --- Surely.
If there was no complaint of pain for months, if not years,
subsequently, could you express an opinion as to whether the fall had
any aggravating effect upon that hip? --- I think it had none.
Is it often the case that persons with this congenital condition to
complain of pain in the hip at some stage or other? --- It is a
progressive thing and can lead to all sorts of discomfort and
complications, sometimes to operation, osteo-arthritis, and she's even
got a little bit of subluxation, if I recall, from the x-ray report,
that means the head of the femur moving out a bit, so she's got the
beginnings of quite a deal of alteration of her weight distribution and
her walking stance, and I think that as she gets older, that, no doubt,
that she will go on and have more symptoms from it."

45. On 30 June 1992 Dr Andrea re-examined the plaintiff. He could not detect any abnormality in the hip on clinical examination, though there were complaints of discomfort if movements were forced or her right groin was pressed.

46. He examined Xrays taken on 28 January 1992, and prepared a report on them, which was not in evidence. He thought they showed early osteoarthritis in both hips, which he did not attribute to the accident. He noted that she had not complained to him about her hip when she had seen him in July 1991, but it now appeared to be her main complaint.

47. Dr Corry, Dr Coyle and Dr Scott-Findlay attribute her hip condition to a congenital dysplasia, and Dr Coyle, on examining the Xrays of January 1992 found no visible secondary osteoarthritic changes.

48. Although Dr Coyle, in a report dated 6 April 1993, referred to the plaintiff's right hip as "osteoarthritic", he later compared the Xrays of January 1992 with Xrays taken on 15 April 1994. Both hips looked exactly the same as they had two years before. Both hips were dysplastic, but appeared identical, and there was no radiological evidence of development of osteoarthritis in either hip over the two year period.

49. His report concluded;

"Mrs Harti's right hip has been painful allegedly ever since falling
on it on 21 February 1991, and if this story is accepted then the
fall must be regarded as a major causal factor in the development
of her hip pain."

50. Dr Andrea was called to give evidence and was cross examined. In chief he said that on his examination in August 1991 he did not record any complaint about the hip, and he had not examined that area.

51. He was then asked;

"Had she injured that hip in her fall in February 1991, would you
have expected her to be complaining of hip pain at least in July
1991?"

52. He replied;

"Yes. The hip joint is a very big joint and it takes quite a lot of
force to injure it, and you know about it."

53. In cross examination he insisted that on medical grounds he did not believe that she injured her hip in the fall, or that she had a congenital hip disorder and the fall precipitated symptoms in a joint which was susceptible to injury.

54. I have no doubt at all that she is suffering pain in the hip, and that it is disabling. I expect that it will worsen to the stage where she will feel forced to have an operation on it.

55. I also do not doubt that she genuinely believes that the condition was caused by the accident. Her present memory is of discomfort in the area starting soon after the accident.

56. However, on such a matter, I do not think that her present memory is sufficiently reliable to enable the conclusion to be drawn that her discomfort in that area did start soon afterwards. All the contemporaneous records are to the contrary, and there is no doubt that if she had been feeling significant hip discomfort during 1991 she would have mentioned it at least to one of Drs Fitt, Scott-Findlay or Andrea or to the physiotherapist.

57. The evidence, in effect common to Dr Andrea, Dr Coyle and Dr Scott-Findlay, which I accept, is that in the absence of complaint of pain in the area for a period of many months it is not possible to attribute the onset of symptoms in the hip to the accident.

58. I think it is also significant that she now remembers having fallen on her right side. Yet in her statement dated 10 April 1991 she stated that she fell to her left side. For what it is worth, Mr Taylor also remembers her having fallen on her left side. I am not persuaded that there was any direct physical trauma to the right hip region in her fall.

59. On considering all the evidence, I am not satisfied that the symptoms that she now suffers in the right hip region were caused by the fall of which she complains.

60. I find therefore that in the fall she was badly shaken, and suffered some bruising and soft tissue injury to the neck and back. She became very concerned about her pregnancy. She suffered headaches and neck and back pain, for which she received physiotherapy.

61. Apart from minor residual neck symptoms, I think that the effects of the accident were spent about a year later. They were then overtaken by the pain and discomfort in the hip, which were not caused by the fall.

62. For her general damages I would award $20,000. Interest on that on the conventional basis would be $1,444.

63. I think that she would have ceased work because of her pregnancy by the end of June in any event, and might well not have returned until early in 1992 in any event. By that time it was her congenital hip condition that prevented her from returning to work. The plaintiff's rate of earnings was agreed at $154 nett a week. I would allow $3,000 for loss of wages attributable to the accident.

64. Interest on that amount, calculated in accordance with the practice direction from 1 July 1991, is $1,276.

65. The out of pocket expenses were $2,414.50, all but $300 of which was paid by the workers' compensation insurer.

66. If she is entitled to an award of damages, therefore, the total sum would be made up as follows;

Pain and suffering $20,000.00
Interest 1,444.00
Loss of wages 3,000.00
Interest 1,276.00
Out of pocket expenses 2,414.50
Total $28,134.50

67. The central issue in this case, however, is whether the presence of the vegetable matter on the floor was the result of any failure on the part of the defendant to take reasonable care for the safety of persons, such as the plaintiff, who might be expected to use the escalator at that time of day.

68. The significant decided cases in this area of the law have recently been analysed by Higgins J in Kelly v Lend Lease Retail Pty Limited (1993) Aust. Torts Rep. 81-216. I do not propose to re-examine them. I respectfully adopt the following statement of the law from His Honour's judgment;

"Slippery floor cases
Australia has not, as yet, embraced a res ipsa loquitur approach to such
cases. The hazard posed by slippery floors, whether inherently so or
rendered so by substances placed or spilt thereon, is well-recognised.
There is a duty to take reasonable care to avoid floors becoming
slippery. It must, however, also appear from the evidence that but for a
failure to take reasonable care on the part of the person having
responsibility for the state of the floor, the injury to the plaintiff
would probably have been avoided.
The difficulty for a plaintiff is that, often, there is no direct
evidence of the time during which a foreign substance or object has been
on the relevant floor area before a plaintiff falls as a result of its
presence."

69. I accept that it is not the law that a plaintiff can not succeed without proof of the time for which the danger has existed.

70. But, as Dixon CJ said in Hampton Court v Crooks [1957] HCA 28; (1957) 97 CLR 367;

"...proof was necessary of some additional circumstances tending, for
example, to raise a probability of its having been there long enough to
be seen if reasonable supervision were practised, or to show that so
many people were likely to use the lavatory in the preceding hour that
closer control was called for, or that the dropping of some such
substance was common or inherently likely to occur. But very little
might have been enough. For the case is one where the facts can hardly
be within the knowledge of the plaintiff and, at all events so far as
concerns the care and control of the premises and the precautions taken,
must be peculiarly within the knowledge of the defendant."

71. In this case evidence was given of the inspection and cleaning system put in place by the defendant. It depended upon a regular schedule of inspection by Mrs Thompson, together with a system for a relatively prompt response by security or cleaning staff as soon as any spillage or other danger was noticed.

72. It is important to bear in mind the type of shop that was conducted on the defendant's premises, and the use that was likely to be made of the particular area where the accident happened.

73. There is no evidence that there were any foodstuffs, or any materials likely to be spilt, sold on the upper level, or indeed on the second level. It was, on the evidence, probable that during the hour before the accident traffic on the escalator from the third level to the second level, and across the tiled area at the foot of the escalators, would have been heavy.

74. The activities carried on in the area or on the level above, were not inherently likely to lead to the presence of food on the floor at the foot of the escalators.

75. The evidence does not enable me to say how frequently the area was inspected during that hour. The inference may well be drawn that it might not have been more twice. Some might judge that so infrequent an inspection, and a reliance on chance observation by staff, even with prompt reporting and response times, would not constitute the exercise of reasonable care. I am not, however, persuaded that in the light of the type of premises and the activities being carried on, the defendant's system of inspection was not reasonably adequate.

76. But on the facts of this case, even if it be conceded that there was such a failure on the part of the defendant, I am not satisfied that it was causally related to the accident that did happen.

77. Even had there been a system of inspection five or six times an hour, which would normally meet any standard of reason, I do not see that it would have prevented the accident from happening.

78. On the evidence in this case, I find myself arriving at the same conclusion as did Connor J at first instance in Dulhunty v J.B. Young Ltd (1976) 50 ALJR 150.

79. In the circumstances of this case the question of how long the food had been on the floor is crucial. It is consistent with the evidence that it might have been dropped there, by some person for whose actions the defendant is not responsible, so shortly before the accident that no reasonable system of inspection and cleaning would have avoided the accident.

80. My own preference is to express that finding in terms of causation. But the same conclusion is reached by adopting the formulation of the first of the three categories of circumstances which establish liability, as expounded by Higgins J in Kelly v Lend Lease Retail (supra) at 62,179.

81. There does not appear to me to be any evidence, however slight, that the foreign matter in question had been on the floor for a greater time, on the balance of probabilities, than is reasonable before it ought to have been seen and removed.

82. The other two categories are not relevant to this case, in my opinion.

83. I do not agree with the submission of counsel for the plaintiff that the decision in Dulhunty has been overruled by Australian Safeway Stores v Zaluzna [1987] HCA 7; (1987) 162 CLR 479. The requirement to prove that a danger was "unusual" was abolished by the decision of the High Court in Zaluzna, but Dulhunty did not turn upon that point. As Barwick CJ pointed out at 50 ALJR 151, the appellant in Dulhunty had not sued for breach of a duty of reasonable care, but the appeal had been argued as if the action had been brought on that footing.

84. As Jacobs J held at 50 ALJR 151;

"But there must be some evidence and the evidence must in some way show
that an act or omission of the defendant was a cause of the plaintiff's
injury."

85. The evidence in this case does not satisfy me that any act or omission of the defendant was a cause of the plaintiff's injury. There must therefore be judgment for the defendant.