Velevska v Woolworths Ltd [2002] ACTSC 52 (7 June 2002)

Last Updated: 20 June 2002

Liljana Velevska v Woolworths Limited ACN 000 014 675 [2002] ACTSC 52 (7 June 2002)

CATCHWORDS

PERSONAL INJURIES - Liability - shopper hit by falling goods in store

DAMAGES - Assessment - soft tissue injuries - no issue of principal

Evidence Act s 135

Griffiths v Kerkemeyer (1977) 193 CLR 161

Ramsay v Watson (1960) 108 CLR 462

No. SC 877 of 1996

Coram: Master T. Connolly

Supreme Court of the ACT

Date: 7 June 2002

IN THE SUPREME COURT OF THE )

) No. SC 877 of 1996

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: LILJANA VELEVSKA

Plaintiff

AND: WOOLWORTHS LIMITED ACN 000 014 675

Defendant

ORDER

Coram: Master T. Connolly

Date: 7 June 2002

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment for the Plaintiff in the sum of $88,335.80

2. Defendant to pay plaintiff's costs

1. This is a claim for damages for personal injuries arising from an incident which occurred at the Woolworths store at the Belconnen Mall in the Australian Capital Territory on the evening of 24 March 1996. The plaintiff was attending the store to do some shopping, and says that she was in an aisle which contained a freezer cabinet on one side, and the refrigerated goods cabinets on another side. She was looking down into the freezer cabinets when she says she was struck about the neck shoulders and legs by falling plastic containers of milk. She observed that a pallet of milk in crates being loaded into the refrigerated goods cabinet had toppled over onto her.

2. Liability was in issue, but on the evidence before me I am satisfied that the accident occurred in the circumstances described by the plaintiff. It was strongly put to the plaintiff that she could not have been struck about the neck or shoulders because crates were only ever loaded three high. Mr Schuster was at the time an employee of Woolworths and it was his job to restock the refrigerated goods cabinet. He said that while he could not precisely recall how high the pallet of crates was this evening, they could have been five high. He said the pallets were "three wide, three deep and as high as you want." He agreed that they could be five high, but thought that he would have removed the top layer before this incident. He agreed in cross-examination, however, that this would have involved an awkward lift across the middle row.

3. He says that on this evening he took a pallet loaded with crates of milk from the cool room out to the refrigerated goods area and proceeded to re-stock the cabinets with milk. He said that the pallet would normally be in three rows, three crates deep, and could be three to five crates high. The pallet, which would be very heavy, was moved by a mechanical device which lifted the pallet some inches from the ground, and it could then be moved. He said that the accident occurred as he was unloading the crates of milk. The pallet was still elevated some inches on the prongs of the fork lift device, and he unloaded the row nearest the cabinet first, and then proceeded to the middle row. At one point as he stepped off the pallet, the load had become so uneven that it tipped over in the direction of the freezer cabinet. He observed the crates falling over, and then observed that they had struck the plaintiff.

4. In these circumstances negligence is clearly established. Although contributory negligence was pleaded, it seems to me that a shopper in a supermarket is entitled to proceed with her or his shopping without having to take care that a pallet of milk will topple onto them. It was pleaded that the plaintiff failed to heed the advice of an employee of the defendant, but no evidence was lead to support this. I find that no contributory negligence has been made out.

5. The plaintiff claims that the accident has caused her ongoing neck pain which continues to limit her ability to work. The extent of her disabilities and their impact on her employment were strongly in issue in the hearing.

6. The plaintiff was born in 1979 in Macedonia, and was educated to tertiary level, where she undertook two years of training in bookkeeping and accountancy, and she worked in this capacity for an industrial factory after completing her education. She migrated to Australia with her then husband in 1989. This relationship broke down in 1991 and the plaintiff moved to Canberra with her children in 1992.

7. She was originally supporting herself and her children on social security benefits alone, but she says that she obtained some part time work as a kitchen hand at café's in Canberra from 1992. She continued to obtain a social security benefits. She has continued a pattern of part time employment and social security benefits after the accident, but it is her case that but for the accident she would have obtained full time employment.

8. The plaintiff's tax records for the period before the accident were unclear, and it was put to her in cross-examination that she had not fully declared her part time earnings and her social security benefits on her tax form. It appears from the evidence before me that her taxation was assessed on her part time earnings and not on her social security payments, which are of course taxable. In cross-examination on this point the plaintiff claimed the privilege in s 135 of the Evidence Act of not answering the question on the ground that the answers might be incriminating, but in re-examination asserted that she had sent all material to the taxation authorities. There is clear evidence that after the accident the plaintiff did not fully disclose her earnings to the social security authorities, and she has been issued with accounts by Centrelink in respect of overpayments of $6615 for the period from 20 September 1996 to 19 March 1998, and $3561 for the period from 20 March 1998 to 27 February 2001.

9. The plaintiff gave evidence that she was to have commenced full time employment just after the accident. A letter was sought to be placed in evidence which was undated, but which made a claim that such an offer had been made, and was signed by the proprietor of a café. It was not in the nature of a business record, and I ruled the document inadmissible, unless the writer was called for cross-examination. The defendant submitted that the offer should be proved by calling the proprietor, but this was not done. I note that in the earliest medical report, from her treating general practitioner, it is stated that the GP understood that at the time of the injury the plaintiff was unemployed. In am not satisfied that the plaintiff would have taken up full time café work as she claims.

10. The plaintiff says that as she was shopping she felt something hit her from behind and push her towards the freezer. She says she felt a big pain in her back and shoulders. She says she was "stuck by the freezer by the crates, and the guy who was driving the trolley, he came to me and said I'm sorry I didn't see you". He then pulled the trolley away and tried to remove the crates, and in this process one of the crates fell further and hit the plaintiff on the foot. She says she was shocked and sat in the corner for a while, and the employee brought some ice and bandages for her foot, which was scratched. She says the employee, who I am satisfied was Mr Schuster, tried to find the manager on duty, but could not locate him. Mr Schuster's evidence was broadly consistent with the plaintiffs, and he confirmed that there was bruising and a cut on her leg.

11. The plaintiff drove herself home from Woolworths as her son, then aged 11 was at home. She stopped by at the Florey Medical Centre, but was told she would have to wait for an hour to see a doctor, so she went home, and then returned later with her son. There was no report of this attendance, but the next day she attended her normal family general practitioner, Dr Evans. She reported to the plaintiff's solicitor on 19 May 1996 saying:

"On examination she had a painful left foot with a scratch and bruising on the anterior surface. She had scratches and bruising with tenderness over the right lumbar region of her lower back and her neck was tender at the back but she had full range of movements. In my opinion these findings were consistent with the history given. She was also suffering from insomnia and stated that she felt shocked. She was treated with ice and strapping to her left foot and rest and anti-inflammatory pain relieving medication initially. When last seen on 19/4/96 she was still complaining of pain in her lumbar region and her left foot. X rays showed no bony damage and she was referred to physiotherapy and also counselling to help relieve her anxiety. At that stage she was much improved and I am of the opinion that she should continue to do so."

12. From this point on the medicine tendered in this case is predominantly medico-legal reports. Ms Velevska said that her general practitioner sent her to specialists, but all of the reports are to the then solicitors, and appear to have been commissioned by them. I accept that the general practitioner recommended counselling, and a report by Mr Petroni, a clinical psychologist, while addressed to her solicitors, may well have come about from this recommendation. He gave the opinion that the plaintiff was then suffering from a significant elevation in anxiety with features of dysphobia, sleep disturbance hypersensitivity and irritability. He took a history of no prior psychological difficulties. Evidence was lead, however, that the plaintiff had previously been prescribed anti-depressants in the aftermath of her marriage breakdown.

13. Dr Cassar, a consultant physician, saw the plaintiff in June 1996, for a medico legal report. He took a history of ongoing pain to the left foot and lumbar spine. He expressed the view that these were soft tissue in nature, and should respond to treatment. I note that this report, and the GP report, refer to complaints of foot and back pain, not neck pain. When seen by Dr Searle, consultant orthopaedic surgeon in November 1996 he took a history of pain in the foot, back and neck. He had the benefit of x rays of April 1996 which he felt showed slight narrowing at L3/4 with osteophytes at that level, consistent with pre-exisitng spondylosis, which he also found at the mid-thoracic region. He concluded that she sustained injuries to her foot, and "cervical and thoracic and lumbar contusions/strains and aggravation of her thoracic and lumbar spondylosis."

14. An MRI of the lumbar spine shows some degenerative changes and a small annular tear at L5/S1. Dr Champion in a report of 16 January 1999 expressed the view that the disc degeneration revealed at L5/S1 and L4/L5 was probably pre existing degenerative change, and this view is shared by doctors for the defendant. Dr Champion however expresses the view that the annular tear is a sign of injury, probably due to this accident. There is no history in the plaintiff's medical notes of prior complaints of back pain at this level, but the complaints have been ongoing since the accident. Drs Searle, Cassar, and White share the view that the tear was caused by the accident.

15. Dr White said that while an MRI of the cervical spine was within normal limits, the lumbosacral MRI of June 1998 shows

"dehydration changes in the lower two discs and a marginal abnormality at L5.S1 which would be consistent with a small tear of the annulus fibrosis at that level."

16. While doctors for the defendant have expressed the view that all of the MRI changes are degenerative, or of no significance, it seems to me that, on the balance of probabilities, I am satisfied that while the disc changes are degenerative, the annular tear at L5/S1 is attributable to the accident.

17. I am satisfied that the accident has caused soft tissue injuries to her foot, back and neck, and has aggravated previously asymptomatic degenerative changes to her lumbar spine. In addition, I am satisfied that the accident caused a small annular tear at L5/S1. There is no nerve impingement, and I am satisfied that the symptoms she complains of are caused by the soft tissue injuries.

18. The medical evidence provides a range of opinions as to the extent to which this condition is disabling. Range of movement is commonly utilised by doctors to assess the degree to which a person is disabled. Dr Searle in his report of April 2002 reported that all neck movements were restricted, and all her lumbar movements were half normal and they all reproduced her pain. Dr White, the neurosurgeon, who reported as a medico legal expert in the plaintiff's case, reported in September 1999 that "There was diffuse tenderness in both the cervical and lumbrosacral region but she had a full range of movement of both levels despite complaints of pain."

19. Dr Cassar in a report of May 2002 stated that he found lumbar flexion to 73 degrees and extension to 23 degrees, and straight leg raising limited to 40 degrees on the right and 60 degrees on the left. He said these limitations had remained at around this level for many years. Dr Champion in his report of January 1999 reported slight restrictions of neck movement, and slight inhibition in lumbosacral spine movements due to pain.

20. Dr Hopkins, who examined her for the defendant in November 2000 found minimal restriction to neck movements, but restriction to back movements, recording flexion to 50 degrees with pain and extension half of normal. Straight leg raising was limited to 50 degrees on the right and 60 degrees on the left, but he said that he observed non formal movements to 85 degrees, saying that this demonstrated abnormal pain behaviour. In his more recent report in November 2001 he found greater restriction to neck movements. Straight leg raising was again formally restricted to 60 degrees on both sides, but he again expressed the view that unguarded movement was greater.

21. Dr Andrews in September 1998 recorded mild restriction of neck movement, and straight leg raising limited to 30 degrees on the right and 40 degrees on the left.

22. Dr Bodel found a reduced range of neck movement to about 70% of expected range, and straight leg raising 80 degrees on both sides.

23. Extensive video surveillance material was shown to the court and tendered in evidence. This had been seen by Dr Andrews, and in his report of 14 May 2002 he said

"On no occasion was there restriction of her neck, shoulder, back movement- all movements were performed freely. There didn't appear to be any pain. Rotation of the neck seemed full. Bending and rotation of the lumbar region seemed quite adequate. None of the videos showed any physical impairment."

Having had the benefit of observing the film, I would adopt these views. The plaintiff acknowledged in cross-examination that it would not be obvious that she was disabled, and that her movements appeared free and unrestricted, but maintained that she had continuing pain.

24. The court is presented with the not unfamiliar difficulty of assessing degree of impairment where there is no objective material. The plaintiff, I have found, sustained soft tissue injuries and a degree of aggravation of an underlying degenerative condition, as well as a small annular tear as a result of this accident. In assessing the degree of disability resulting from this, doctors are of course reliant on complaints of pain and restriction of movement. There have been inconsistencies within these complaints, and I note in particular Dr White who for the plaintiff found full range of movements, although he said there were complaints of pain. Doctors for the defendant noted a greater degree of movement on unguarded observation than what was displayed in formal examination, and the video material, while not dramatic, in that it does not show heavy labour, shows long periods of the plaintiff undertaking her present part time work as a shop assistant, with bending crouching and stretching performed as appropriate with no apparent restriction. The full and unrestricted movement observable on video is quite inconsistent with Dr Searle's report of April 2002.

25. I am not satisfied that the plaintiff's ongoing complaints are established. I accept a degree of pain and discomfort, but I am not satisfied that this is significantly disabling. I find that the plaintiff has exaggerated her complaints of pain and limitation of movement.

26. The plaintiff complains of headaches, but I note that both Dr Cassar in her own case and Dr Andrews in the defendants case have expressed the view that these migraine related headaches are unrelated to the accident.

27. It also needs to be noted that the plaintiff has recently begun treatment for an arthritic condition. She is on Plaquenil, which Dr Bodel, who reported in the defendant's case, said is medication for rheuamtoid arthrits. This is not, on the evidence before me, related to this accident, but it is a condition causing a degree of difficulty for her, and so must be taken into the balance in considering her the extent to which her overall disability is accident related. Dr Bodel, one of the few doctors to have information about this condition, said in his report of April 2002 found that she had some stiffness in the neck and back, and said "it is likely that in part her ongoing symptoms relate to that underlying constitutional problem of rheumatoid arthritis."

28. The plaintiff acknowledged that she has been able since the accident to undertake part time work. She was able to move away from kitchen hand type work and move into retailing with her first job at Mansours, a manchester store in Canberra in September 1996. She has continued in this line of work for various employers since. There was a period when she restricted her hours, but she acknowledged that during this time she was undertaking tertiary studies in order to gain management skills. She has continued to receive social security benefits. Since February 2000 she has worked at Adairs, a manchester store at Belconnen. Her taxable income in the years before the accident was limited to below $10,000. She earned $9,935 in the tax year ending 30 June 1997 in addition to whatever social security benefits she obtained. Her taxable income was $19,400 for that year. For 1998 it was $24,437, $9,811 for 1999, $24,962 for 2000 and $21,756 for 2001. She agreed with counsel for the defendant that to 5 May she had earned around $28,000 from Adairs in the present tax year. This shows a pattern of steadily increasing earnings, and post accident earnings well in excess of pre accident earnings.

29. The plaintiff said in her evidence that she works about 18 to 20 hours a week, but sometimes more. Her daughter said she could only work 16 hours a week but she had worked longer before the accident. Ms Velevska said she definitely can not do 38 hours a week (transcript p 22). In cross examination she said the most she had worked since December 2001 was 25 to 26 hours, but then said it could be 28 (transcript p 73). She was then showed a wage record that indicated 43 hours in the week of 17 March 2002. She acknowledged this, but said she could only do this once a year.

30. This week was about a week before she saw Dr Searle for his last medical update in her case. He records her working 20 hours a week "but needed odd days off work from time to time because of her pain". She told Dr Bodel on examination on 9 April 2002 that she continues to work between 12 and 20 hours a week. It seems to me that this information was not complete, as she had worked for 43 hours just prior to both of these examinations, and both doctors were left with a misleading impression. Where doctors have been told of a maximum work tolerance, and have expressed an opinion based on that incorrect information, their opinion is of course significantly weakened (Ramsay v Watson (1960) 108 CLR 462)

Damages

31. In relation to general damages, I assess the plaintiff on the basis that she was struck quite heavily and unexpectedly by full crates of milk containers falling from a stack some five high as she was leaning over the freezer compartment at Woolworths. I accept that she sustained abrasions to her foot, and soft tissue injuries to her neck and back, as well as an aggravation of an underlying degenerative disc condition. I accept, on the balance of probabilities, that the annular tear at L5/S1 is accident related, although this is not itself productive of pain with any nerve root involvement. I accept that she continues to experience a degree of restriction of movement, but on all of the medical evidence and the video material I am satisfied that she has significantly exaggerated her claims of disability and restriction of movement. On the basis of all of this material I am satisfied that after this period of time the symptoms that can be related to the accident have resolved to ongoing nuisance value symptoms only, and are not disabling.

32. There has been a complaint of a psychological sequelae arising from the accident. She saw Mr Petroni within a short time of the accident, but this seems to be in the medico-legal context. Dr Schlesinger, a clinical psychologist, reported in her case in August 2001 that she has continued to experience pain since the accident and

"Combined with the emotional sequelae such as stress, anxiety and depression, deprived of her capacity to work, pain evolved into suffering. Being a complex affective response, suffering led to pain behaviour which Mrs Velevska revealed since the insult on her, still requires medication."

33. Dr Saboisky, a consultant psychiatrist, reported for the defendant in December 1999, and expressed the view that the plaintiff had an Adjustment Disorder with mixed features of depression and anxiety as a result of the accident, but expressed a positive prognosis. Dr Dyball, a consultant psychiatrist, also reported for the defendant in March 2001 that the plaintiff continues to have an adjustment disorder with some degree of anxiety and depression. He however set out in his report a range of factors that would contribute to this, and accepted the accident as one contributing factor. He sat that she was psychiatrically fit for work and requires no care beyond that provided by her general practitioner.

34. It is significant in this context that none of the doctors had a history of the plaintiff previously having been prescribed medications for depression and anxiety. This was at the time following her marriage break up, and I note that Dr Saboiski did make the observation that she has got over this breakup, and Dr Dyball surmised that this must have contributed to her overall presentation. Both doctors were however not given the full picture, and it is significant if a claim is made for a psychiatric condition on the basis of no prior history of anxiety and depression that medications for these conditions have previously been prescribed, albeit in an understandable context of a marriage breakup and a move to a new town at a time when the plaintiff had considerable difficulty with English.

35. I accept that there has been a degree of depression and anxiety flowing from the physical symptoms, but I accept also that these are not disabling, and as I have formed the view that the physical symptoms have been somewhat overstated, and the remaining accident related disability is minor, I find also that the ongoing impact of the accident on the plaintiff's psychiatric condition is also diminishing.

36. Taking all of the evidence into account I assess general damages in the sum of $37,000, with $30,000 attributable to past loss, generating interest of $3725 for at total award of general damages of $40,725.

37. Out of pocket expenses were agreed arithmetically in the sum of $9630.80. The two largest components of this are Dr Cassar in the sum of $5,539 and Mr Petroni in the sum of $1249. Both of these professionals were engaged very early after the accident by the plaintiff's then solicitors, and they appear from the reports to be principally medico legal experts. I am satisfied, however, that Dr Cassar and Mr Petroni did provide treatment, and it seems appropriate to award this sum in full. I should add that the criticism of confusing treatment and medico legal roles falls to the plaintiffs former solicitors, not those presently representing her.

38. The plaintiff's claim for future out of pocket expenses is based on ongoing medications, but the particulars identify these as the medications prescribed for her arthritic condition, that I am not satisfied is accident related. The only ongoing medication related to her condition is Panadeine, and I accept the need for this for some time, as well as some ongoing need for anti depressants, and the possibility of counselling and pain management to deal with the ongoing nuisance value symptoms still attributable to the accident. I award $3000 by way of a buffer for future out of pocket expenses.

39. The plaintiff's claim for past economic loss is particularised as the difference between her actual earnings and the $400 net per week she says she would have been earning at the full time job that she says she would have started at the time of the accident. This amounts to a claim for a net loss of $35,328.

40. I am not satisfied that this is made out as particularised. I am not satisfied on the evidence that this job offer was realistic. Such of her tax records as exist before the accident reveal part time earnings of well below this level. The person said to have offered the job was not called, and the only documentation in support of the position was quite properly objected to and not admitted into evidence.

41. I note that the plaintiff has been able to work part time, and over time has both increased her hours and increased the nature of her responsibilities and her earnings. On her first arrival in Canberra she had limited English, and was restricted to manual work as a kitchen hand. She has found that she enjoys retailing, and is studying to increase her management skills. She has a background in bookkeeping work in Macedonia. She spoke with understandable pride at securing part time work at a major department store. She now works in a job that involves management roles as well as direct retailing, and her hours, I am satisfied from the evidence, have extended to 43 a week, and quite regular periods of 30 hours a week. Her earnings from employment have steadily increased, and have been well in excess of her earnings before the accident.

42. Nevertheless, I am satisfied that there has been a degree of restriction, greater in the period immediately after the accident and diminishing over time, and this must sound in damages. Taking all of the evidence into account I award a buffer of $20,000 inclusive of interest in respect of past economic loss.

43. The future economic loss claim is based on an ongoing loss of $220 per week based on a limitation to 20 hours of work per week. This amounts to a claim to retirement, and allowing appropriate discounts, of $184,349. I am not satisfied that this is made out on the evidence before me, particularly given the evidence of the hours actually worked. Her earnings this year from the manchester store are in the order of $28,000 by the date of trial, which indicates a utilised capacity to earn to her claimed full capacity. I have had the benefit of reading all of the medicine, and seeing the video material. It seems to me that to the extent that the accident related condition is still having an impact on her earning capacity, this is diminishing and the level of symptoms attributable to the accident are now at a low level only. The medical evidence does support a restriction in employment to avoid heavy tasks, but she has moved away from this type of work. It seems to me that this sounds in only a modest buffer for ongoing restriction of economic capacity of these ongoing nuisance value symptoms, which however can cause a degree of discomfort. I would award a buffer of $10,000 in respect of future economic loss.

44. The plaintiff has made a claim for past and future gratuitous care based on the principles of Griffiths v Kerkemeyer. She claimed in evidence that her teenage son provides 28 hours a week of household assistance. This evidence did not stand cross-examination. The past care claim was particularised on a modest basis, being a claim for 8 hours assistance from her family per week at $15 an hour and $10 per month by way of payment of a lawnmowing and gardening service, for a period of six months, particularised for a claim of $3380. Counsel for the defendant did not dispute this, and it seems consistent with the medical evidence and applies to the immediate aftermath of the accident. Interest must be applied to this sum, and I award the total of $5000 in respect of past care. In respect of the future claim, however, I am not satisfied, on the basis of all of the evidence in this case, that the soft tissue type injuries have created any present and future need for care and assistance beyond the normal give and take of domestic relationships, and while I accept that as her children have grown up they have provided more assistance in the home, this is not, it seems to me, an accident created need. I make no award under this aspect of the claim for future care.

45. This amounts to a total award of $88,355.80 which I consider to be appropriate in all of the circumstances of the case and award, with costs.

I certify that the preceding forty five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly

Associate:

Date: 7 June 2002

Counsel for the Plaintiff: Mr Lunney

Solicitor for the Plaintiff: Romano & Co

Counsel for the Defendant: Mr Crowe

Solicitor for the Defendant: Blake Dawson Waldron

Date of hearing: 14 & 15 May 2002

Date of judgment: 7 June 2002