Harris v Woolworths Ltd [2010] NSWSC 25 (10 February 2010)

Last Updated: 11 February 2010

NEW SOUTH WALES SUPREME COURT

CITATION:
Harris v Woolworths Ltd [2010] NSWSC 25


JURISDICTION:


FILE NUMBER(S):
20351/07

HEARING DATE(S):
21 - 25 September 2009

JUDGMENT DATE:
10 February 2010

PARTIES:
Leonie Edna HARRIS (Plaintiff)
Woolworths Ltd (Defendant)

JUDGMENT OF:
R A Hulme J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
Mr M Holmes QC with Mr D P O'Dowd (Plainitff)
Mr P Blacket SC with Mr D Ronzani (Defendant)

SOLICITORS:
Cox West Lawyers
Bartier Perry


CATCHWORDS:
TORTS
negligence
slip and fall
breach of duty of care
causation of harm
LIMITATION OF ACTIONS
contracts, torts and personal actions
personal injury cases
when time begins to run
Limitation Act 1969 section 50C

LEGISLATION CITED:
Limitation Act 1969
Civil Liability Act 2002
Legal Profession Act 2004
Uniform Civil Procedure Rules

CATEGORY:
Principal judgment

CASES CITED:
Allcorp Cleaning Services Pty Ltd v Fairweather [1998] NSWCA 12
Baker-Morrison v State of New South Wales [2009] NSWCA 35
Bon Appetit Family Restaurant Pty Ltd v Mongey [2009] NSWCA 14
Bostik Australia Pty Ltd v Liddiard & Anor [2009] NSWCA 167
Brady v Girvan Bros Pty Ltd t/as Minto Mall (1986) 7 NSWLR 241
Drakos v Woolworths (SA) Ltd (1991) 56 SASR 431
Franklins Ltd v Hunter [1998] NSWCA 85
Frizelle v Bauer [2009] NSWCA 239
Kelly v Lend Lease Retail Pty Ltd (1993) 113 FLR 21
Kocis v S E Dickens Pty Ltd (1996) ATR 81-382
Owners - Strata Plan 156 v Gray [2004] NSWCA 304
Rawle v Southstate Industrial Supplies Pty Ltd [2008] NSWDC 70; DCLR (NSW) 134
Shoeys Pty Ltd v Allan, unreported, Court of Appeal 3 May 1991
Sleiman v Franklin Food Stores Pty Ltd (trading as Franklin Food Stores) (1989) Aust Torts Reports 80-266

TEXTS CITED:


DECISION:
Judgment for the defendant. Plaintiff to pay the defendants costs.



JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

R A Hulme J

10 February 2010

20351/07 Leonie Edna HARRIS v Woolworths Ltd

JUDGMENT

1 HIS HONOUR: Ms Leonie Harris (“the plaintiff”) slipped and fell in the Kings Langley supermarket operated by Woolworths Limited (“the defendant”) on 19 June 2003. She broke her ankle and there have been quite catastrophic sequelae.

2 The plaintiff filed a statement of claim on 12 October 2007 seeking damages for negligence. A defence was filed on 17 March 2008.

3 Issues which have been raised for determination are:

Was there liquid on the floor of the supermarket that caused or contributed to the slip and fall?

If so, was the defendant negligent and was such negligence the cause of the harm occasioned to the plaintiff?

Was the commencement of proceedings outside the three year post discoverability limitation period provided by s 50C of the Limitation Act 1969?

If the above issues are determined in favour of the plaintiff what is the extent of damages for which the defendant is liable?

Was there liquid on the floor?

4 Ms Harris claimed that she slipped on an area of floor in the defendant’s store upon which there was some liquid. It is agreed between the parties that having regard to the nature of the floor surface, if there was a liquid such as water upon it then it would be slippery. The plaintiff concedes that if I find as a fact that there was no such liquid on the floor in the area where Ms Harris slipped then her case must fail. The defendant maintains that even if I do conclude that there was liquid on the floor I could nevertheless determine that it is not liable in negligence. So, the first question to determine is whether there was liquid on the floor of the supermarket that caused or contributed to the slip and fall.

Plaintiff’s evidence

5 At the time of the incident the plaintiff was a 44 year old woman who was employed by Kimberley-Clark Australia Pty Limited (“Kimberley-Clark”) as a Territory Manager. She was responsible for promoting sales of her employer’s products in various retail stores and supermarkets in the western Sydney metropolitan and Blue Mountains areas. Her evidence was that she loved her work and had thoughts of remaining in her position until she reached retirement age.

6 On 19 June 2003 the plaintiff went to the Kings Langley supermarket operated by the defendant. The primary purpose of the visit was to assist another Kimberley-Clark employee, Ms Katherine Plant, in the erection of a display of tissue products. The plaintiff had not been to this supermarket before. She arrived at 8.30 am. She signed the visitors’ book at the front counter and then found Ms Plant within the store. They first attended to restocking shelves with tissue product before commencing to build the tissue display.

7 The tissue display was erected on a clear area of floor immediately on the store side of a railing that separated the store from the express checkout area. The plaintiff and Ms Plant placed boxes of tissues on the display, initially working on the store side. After it had been completed, the plaintiff walked around to the opposite side with the intention of turning the tissue boxes around so that they were facing out and therefore properly on display to people walking through the express checkout area.

8 Almost immediately upon entering the express checkout area the plaintiff slipped and fell. Her evidence was that there was something wet on the floor that her foot slipped on. She did not say that she saw the liquid prior to the fall or at the time of the fall. I am satisfied that she fell and at some later time (an issue being how much later) she noticed that the floor was wet.

9 She said she fell to the ground, on to her right ankle and/or knee and that she was in a lot of pain. A female Woolworths employee approached her and asked if she was alright and whether she could get up. Ms Harris replied to the effect that she was not alright and that she could not get up because she was in too much pain. The employee left. I am satisfied that this employee was Ms Christina Aquilina who had been working at an express checkout register.

10 Ms Plant came around from the store side of the display and asked if she wanted some help. The Woolworths employee (Ms Aquilina) then returned with a chair for her to sit on. The two helped Ms Harris to get up and sit on the chair. Ms Harris said that at this time she did not feel very well and was in a lot of pain in her right knee and ankle. Whilst she was sitting on the chair she made an observation of clear liquid that looked like water on the floor in an area that she said was about as big as her hand.

11 Ms Harris said that at about that time a lady in a Woolworths uniform appeared, wiped up the liquid from the floor with a paper towel and then disappeared towards the back of the store. Ms Harris described this employee as wearing a white uniform, “like the girls wear in the delicatessen part of the store”. The only other description she could give of the uniform was that it was, “an all in one dress”, “not like a two piece” and the person also had a name badge. It was put to her in cross-examination that in 2003 the Woolworths deli personnel did not wear white uniforms but her response was that she could not remember. She insisted, however, that the person had a Woolworths name badge on. She did not see from what part of the store the employee had come from, “they just appeared in front of me” (T176.20).

12 Apparently Ms Harris was blocking the express checkout area and so with assistance she and the chair were moved around into the store where she resumed her seat adjacent to the tissue display. When she was in that position a Woolworths employee who had provided the chair (Ms Aquilina) then brought a bag of ice. However “she had not tied the end of the bag of ice so it went all over the floor. So she cleaned that up, tied the bag of ice up and got another bag of ice” (T35.40). Photographs (Exhibit G) were taken of Ms Harris sitting on the chair with her right foot up on a carton with a bag of ice on her knee and another underneath her ankle.

13 The sole of Ms Harris’ right shoe is visible in two of the photographs in Exhibit G. During the course of the evidence there was some issue about the shoes she was wearing but this was not pressed as an issue in closing submissions. That was realistic because I do not think there was any relevant issue to pursue.

14 Ms Harris said that another Woolworths employee approached her with some paper work. Other evidence established that this was Ms Doris Cortis who completed a Customer Incident Notification form (Exhibit 3) and a Customer Incident Investigation form (Exhibit 4). She recorded Ms Harris’ personal details. She asked Ms Harris what had happened and Ms Harris replied that she had slipped over on something wet on the floor. Ms Cortis replied, “You didn’t. There’s nothing – the floor’s not wet. Look, there’s nothing wet on the floor”. Ms Harris replied, “There’s nothing wet because somebody has wiped it up already”. Ms Cortis replied, “No”, and then wrote on the form, “No spillage on floor”.

15 Ms Cortis then showed the form to Ms Harris. She said that when she read the “No spillage on the floor” she told her, “I’m not going to sign that because that’s not true”. Ms Cortis then gave her a copy of the form. When this topic was raised in cross-examination Ms Harris said, “I wasn’t going to put my signature on something that wasn’t true”. I then asked her, “Did somebody ask you to sign?” and she replied, “No” (T122.5).

16 Ms Harris made a telephone call to her manager, Ms Louise Thompson. Ms Thompson came and collected her and took her to Windsor Hospital. An x-ray was performed and she was told that it did not show anything and that she must have just sprained her foot. She was advised to put ice on it and rest.

17 Notes from the emergency department of the Hawkesbury District Hospital include, “Slipped on wet floor” and “Slipped on a wet floor in Woolworths Supermarket, Kings Langley”(Exhibit B pages 25 and 28).

18 In cross-examination Ms Harris denied that the Woolworths employee who first approached her after the fall (Ms Aquilina) had checked the floor for any signs of liquid or fluid (T62.37). She denied a suggestion that no employee had wiped up anything from the floor. She maintained that both she and Ms Plant saw this (T67.33). She disputed a suggestion that she had not told an employee that somebody had wiped up the floor (T69.47). She disputed a suggestion that there was no liquid on the floor and that the floor was clean and dry (T70.48 – 71.6).

19 Ms Harris agreed that the notes from Hawkesbury Hospital record her having said that it was a “wet floor” and that when she made a statement in September 2003 she had referred to a “very wet and slippery substance” (T71.32- 71.41).

20 In a statement made in connection with her workers’ compensation claim on 25 September 2003 Ms Harris said in part:

As I entered the lane I slipped on very slippery and wet substance and fell.

I fell forwards and to my left side and went down. Someone came to help me. My right foot was in severe pain. They asked if I wanted to get up and if I was alright. I said to them I am not alright and did not want to move straight away. Someone brought a chair and I eventually sat on the chair. This was still in the express checkout lane. At this stage Kathy Plant came over to where I was sitting. Also while I was sitting there someone from Woolworths appeared with roller towel (sic) and wiped up the substance.

As I was in the lane blocking the customers I moved around to the front of the display. I did not walk but hopped around holding onto the rail.

Once again I sat on the chair and someone from Woolworths brought ice and applied to my right foot. I recall that photos were taken of me sitting on the chair.

A person from Woolworths appeared with their accident report. She asked me my personal details. I explained what happened and when I said that I slipped on something wet on the floor she said, “No you didn’t, look the floor’s not wet”. And I replied, “That’s because you have wiped it up”.

The lady completed her documentation and showed it to me. I read it and it said, “no spillage on the floor” but this was not in answer to a question but had just been put on the paperwork. I did not sign anything. They gave me a copy of the report and I gave it to my boss.

Kathy Plant was by now with me and she saw them wipe up the spillage.

Evidence of Ms Katherine Plant

21 Ms Plant was employed as a merchandiser for Kimberley-Clark. She gave evidence of assisting Ms Harris in building the tissue display. She recalled Ms Harris saying that she was going around to the back of the display to turn the tissue boxes around. She then heard a noise. She walked around the display and saw Ms Harris on the floor in the express checkout area. Ms Harris complained that her foot was sore and hurt. She noticed that there was liquid on the floor. She said that a female employee (Ms Aquilina) then approached. They helped Ms Harris to get up. An employee (again, Ms Aquilina) went away and returned with a chair and Ms Harris was helped to sit on the chair. She said that “another girl from Woolworths came and wiped up the liquid on the floor. She had a paper towel and she wiped it up” (T82.18).

22 Ms Plant said that there were two female employees involved (Ms Cortis and Ms Aquilina). It was the younger of the two (Ms Aquilina) who had wiped the floor. They were both wearing uniforms. The younger one had come from near the express checkout and the older woman was near the service desk. After the younger employee had wiped the floor she walked away. She claimed that it was the older of the two employees (Ms Cortis) who had obtained the chair.

23 The chair was placed in a location so as to not disrupt customers passing through the express checkout area. Ms Harris was able to put her foot up and someone had obtained ice for her. Ms Plant then attended to completing the tissue display.

24 Ms Plant made a statement in connection with Ms Harris’ workers’ compensation claim on 18 November 2003 which included consistent statements as to seeing “something wet” on the floor and seeing a Woolworths employee wipe it up:

As I got to Leonie I helped her up. I think another girl from Woolworths also helped. I asked Leonie if she could walk on her foot and she said No. As we were standing there I noticed something on the floor. It was something wet. We then helped Leonie to the chair which someone from Woolworths had brought.

I then saw someone from Woolworths come and wipe up the spillage with white paper towels.

When Leonie sat down she put her foot up as it was swelling quickly. She was in quite a bit of pain. Someone brought some ice. Leonie called the office and Louise Thompson came and took Leonie to the hospital.

25 In cross-examination Ms Plant said that she could not recall whether a Woolworths employee was already with Ms Harris when Ms Plant first saw Ms Harris on the floor. The effect of her recollection was that Ms Harris did not sit on the chair in the express checkout area but first sat on the chair on the store side, adjacent to the tissue display (T93 – 94).

26 She denied that she could be mistaken about her evidence that there were two Woolworths employees, one who obtained the chair and the other who wiped the floor. She also denied a suggestion that there had been no fluid on the floor. She described the fluid as being about the size of an entrée plate. She recalled that it was the older of the two female employees, the one who had brought the chair, who had subsequently filled out a report whilst talking to Ms Harris. She thought that the older employee had arrived on the scene first but she could not recall whether there was much difference in the times of their arrival.


Evidence of Ms Louise Thompson

27 In 2003 Ms Thompson was a Field Operations Manager for Kimberley-Clark. She supervised a team that included Ms Harris. She received a telephone call from Ms Harris on the day of her fall. She attended the store about 20 minutes later and saw Ms Harris sitting on a chair with her right foot elevated. She assisted Ms Harris to her car and then drove her to Hawkesbury Hospital.

28 Ms Thompson gave evidence, which was not challenged, of having been told both by Ms Harris and by Ms Plant that there was spillage on the floor and that it had been wiped up after Ms Harris had fallen. She wrote on the copy of the Customer Incident Notification form that had been given to Ms Harris (Exhibit B page 18), “There was spillage on the floor. It was wiped up after Leonie slipping”.


Evidence of Ms Doris Cortis

29 Ms Doris Cortis is an employee of Woolworths and has been since 1997. In June 2003 she was the Store Service Manager at the Kings Langley store. She had been there for six to eight weeks. She was third in charge of the store but on 19 June 2003 the store manager was on holidays so she was effectively second in charge.

30 On the morning of 19 June 2003 Ms Cortis was in an office in an upstairs area. She was alerted to the incident involving Ms Harris when she was paged to attend the service desk. She had to travel a distance she estimated as, “maybe a hundred, one hundred and fifty ... metres” and it took her an estimated two to three minutes to attend. She said, “I went downstairs and I checked the floor” (T207.34). When she arrived at the location in front of the express registers she saw staff around a customer who had fallen over. The staff she referred to was Ms Christina Aquilina. Another representative of Kimberley-Clark was also present (obviously Ms Plant). Ms Cortis then went upstairs and obtained the paperwork and when she returned she started to fill it out.

31 Ms Cortis indicated by reference to a photograph (Exhibit 1) that she saw Ms Harris inside the express checkout area. Later, in cross-examination, she conceded that it was possible that Ms Harris may have been outside of the express checkout area (T272.15). Ms Cortis said that she spoke to Ms Harris about whether she needed medical attention. However she said that the first thing she did, as a matter of practice upon attending such a scene, was to check the floor. She said she bent down and had a very close look at the floor in the area where Ms Harris was. This was part of her training that the first thing she would do when attending to an accident or a slip or a trip is to check the floor. She detected nothing on the floor. When she left to retrieve the relevant paperwork Ms Aquilina was with Ms Harris. A moment later in her evidence she said that when she left Ms Aquilina was “still at the service area” which is not exactly in the same place.

32 Ms Cortis was away for, “approximately two to three minutes”. When she returned she filled out a Customer Incident Notification form with information provided by Ms Harris. She identified the copy of the form that is in Exhibit B at page 18 (the original is Exhibit 3). She wrote the words, “no spillage on floor”. She said it was her practice whenever there was a slip and fall to record whether or not there was spillage. Ms Cortis did not recall having any conversation with Ms Harris on the topic of her writing this on the form.

33 Ms Cortis said that the acting store manager, Ms Nicole Corne, was present “slightly after” she had first arrived. She “would have been” at the scene whilst Ms Cortis went upstairs to retrieve the paperwork. She said Ms Corne obtained a camera and took photographs. I interpolate that there was no other evidence as to the presence of Ms Corne.

34 Ms Cortis did not see any Woolworths employee, or any person, wiping the floor.

35 A chair was obtained for Ms Harris to sit on but Ms Cortis could not recall who did this. Her routine was to ask whichever employee was nearby to obtain a chair for the customer who had fallen. She said the chair was placed immediately outside the express checkout area and Ms Harris sat on it.

36 Ms Cortis also gave evidence of a “procedure normally adopted” after an incident that, “a wet floor sign ... goes up after the spillage has been wiped down and cleaned” (T217.23).

37 Ms Cortis said that from the area of the fall to where the express checkout operators worked was slightly less than a metre and that it was two metres to the service desk. From the area where the express checkout operators worked it was possible to see the area where Ms Harris had fallen and, assuming no customers were blocking the view (and Ms Cortis noted that the paperwork completed at the time indicated that there were none), it was possible to see the floor where the fall occurred from the checkout operator position.

38 Ms Cortis described herself as being older than Ms Aquilina. At the time of giving evidence she was aged 48.

39 In close cross-examination about her completion of the incident report forms Ms Cortis conceded that it was possible that Ms Harris may have told her that she had slipped on some clear liquid, like water (T251.38). She was aware on the day that Ms Harris was claiming that there had been water on the floor (T262.17). Almost immediately Ms Cortis said she did not remember Ms Harris telling her on the day that there was water on the floor. She said, “I know it was disputed but I don’t know that it was disputed on the day” (T263.18) and, “Later on after I filled in the form (she knew it was disputed), but I don’t remember her saying that there was water” (T263.25). Still later, she clarified that she had no recollection of the dispute about water being on the floor being raised with her as she was filling out the forms (T268.25). She then conceded that it was possible that Ms Harris had said that she had slipped over on something wet on the floor, and she might have said something to Ms Harris such as, “there’s nothing wet on the floor”, or, “there is no spillage on the floor”, and that such a conversation could have occurred when she looked at the floor, saw that there was no spillage, and wrote that on the form (T268.40).

40 Further in relation to the Customer Incident Notification form (Exhibit 3) Ms Cortis said that it is no part of the procedure for completion of that form that the customer is asked to sign it but she had no recollection whether she asked Ms Harris to sign the form on this particular occasion (T268.10).

41 On the question of uniforms worn by Woolworths supermarket staff at the time Ms Cortis said that both males and females wore black pants and white shirts, the females wore a red or green scarf and the males wore a red or green tie. Staff working in the delicatessen wore this uniform as well. Up until around 1999 the delicatessen staff had a different uniform, females wearing a long sleeved pinafore and a hat (T276.28). They were also able to wear an apron, initially white and later burgundy or green (T277.5). She conceded that in 2003 it was possible that an employee could have worn a white apron, citing bakery staff as wearing white occasionally (T277.30).

42 The Customer Incident Notification form (Exhibit 3) has Ms Cortis’ notation, “No spillage on floor”. The Customer Incident Investigation form (Exhibit 4) has her notation that the floor was inspected by Ms Aquilina five minutes before the incident and found to be clean and that subsequent to the incident the floor was, “Clean, mark from her heel”.


Evidence of Christina Aquilina

43 Ms Aquilina was aged 28 in June 2003 and had been an employee of Woolworths for eight and a half years.

44 On 19 June 2003 Ms Aquilina was working at an express checkout register. She saw Ms Harris walking towards her when she, “just fell on her knee on her right side” (T283.24). Ms Harris was a “couple of metres” away from her (T283.27). Ms Aquilina was not serving a customer at the time. She said she, “raced around to see if Ms Harris was all right, checked the floor, went on my knees, checked the floor” (T284.12). Ms Harris reported that she was sore and that she had hurt her right knee and ankle.

45 Ms Aquilina then called for Ms Cortis to attend, using either the microphone or a phone. Both the microphone and the phone were three or four feet away. Ms Harris remained on the floor. Ms Aquilina stayed with her for a few minutes. She then went upstairs to obtain a chair.

46 As to checking the floor, Ms Aquilina said, “That’s the first instinct you do is get down and check the floor and to see if it is wet, lettuce leaves, and it wasn’t wet” (T286.3). She checked an area of the floor of two or three feet by two or three feet in the immediate area where Ms Harris had fallen and she saw nothing. She felt the floor with her hands.

47 It took Ms Aquilina “probably three to five minutes” to obtain the chair and return. When she returned Ms Cortis was there and they helped Ms Harris onto the chair. The chair was placed next to where she had fallen. She was complaining of pain on her right side, knee and ankle.

48 In cross-examination, it was suggested to Ms Aquilina that she did not check the floor until she had later returned with the chair. She said that she did not recall but that it was possible (T310.45). She agreed that if there was water on the floor it could have been wiped up in the three to five minutes she was away getting the chair (T311.6). A short time later she disagreed with a suggestion that she did not get down on her hands and knees and check the floor until after she had obtained the chair and some bags of ice (T313.19).

49 Ms Aquilina saw Ms Cortis check the floor to see if it was wet. She could not recall seeing anyone take a paper towel and wipe the floor in the area where Ms Harris had fallen. She conceded that this might have happened but she simply could not remember (T289.20).

50 I have mentioned that it was Ms Aquilina who obtained the bags of ice. The first bag was not properly secured and there was some spillage of water. Although she was not sure, she thought that she could have obtained a paper towel from the nearby service desk to clean it up. The spillage was “right near the chair where she was actually sitting on ... pretty much close by (where Ms Harris had fallen)” (T290.35). In cross-examination she conceded that once the first bag spilled water on the floor she tied a knot in it and immediately proceeded to obtain a second bag. She did not stay at the location until the spillage had been cleaned up and nor did she obtain a warning sign from the service desk to place next to it (T312.25).

51 Ms Aquilina had commenced her shift that day by at least 7.00am. Later, in cross-examination, she accepted the proposition that she had started at 9.30am. Prior to the incident she had not seen anyone spill any liquid in the checkout area where Ms Harris had fallen. If that had occurred she would have had been in a position to have seen it. If such a thing occurred she would have obtained a sign from behind the service desk and put it in the area and then proceeded to have the spillage attended to.

52 Ms Aquilina estimated that 20 to 30 customers would use the express checkouts between 10am and 11am in June 2003. It was a “pretty quiet” time of the day.

53 Ms Aquilina was shown a sketch that had been drawn earlier in the trial by Ms Plant (Exhibit K). Ms Plant had marked on that sketch with a black circle the area where Ms Harris was sitting on the chair on the store side, outside the express checkout area. Ms Aquilina marked within that circle a “P” to indicate the location where she saw Ms Harris fall. She said that the spillage from the ice bag was in that same location. Ms Aquilina did not have a recollection of the chair being moved from the position where she had first placed it after obtaining it from elsewhere. Later, in cross-examination, she confirmed that she thought that Ms Harris had fallen immediately outside, on the store side, of the express checkout area. In other words, her recollection, contrary to all other witnesses, was that the fall occurred before Ms Harris had entered into the express checkout area. She said that the position in which Ms Harris is depicted in photograph number 14 at page 456 of Exhibit C was the area where the fall occurred (T308.22).

54 Ms Aquilina recalled that Ms Harris and Ms Cortis had a conversation about the circumstances of the incident. She recalled something being said about there having been something on the floor.

55 Ms Aquilina made a handwritten statement on the day of the incident (Exhibit 5). It must have been made very close in time to the incident because it bears a facsimile imprint indicating that it was despatched to a Woolworths office at 12.09pm. It records her witnessing Ms Harris’ fall and includes, “The floor was not wet in anyway”. I have mentioned earlier the information as to the state of the floor five minutes before the incident that Ms Cortis presumably obtained from Ms Aquilina and inserted in the Customer Incident Investigation form (Exhibit 4).

56 On 22 October 2003 Ms Aquilina signed a typed statement for the purposes of Ms Harris’ workers compensation claim (Exhibit 7). It included:

The floor area where the lady fell was not wet in any way. I particularly remember feeling the floor on my hands and knees to see if it was wet and it was not. There were no other customers in the express area at the time of her fall and there was no dirt or debris on the floor.

Consideration

57 There are, quite obviously, numerous inconsistencies between the evidence of the four main witnesses. I am satisfied that this is, in large part, explicable because of the time that has elapsed since the incident. Mr Blacket, senior counsel for the defendant, specifically submitted that, aside from the plaintiff, the witnesses experienced defects in recollection but that none of them were lying. They were mistaken but were doing their best. I believe that is a fair assessment although I would not exclude the plaintiff. I am satisfied that she honestly believes that she saw water on the floor in the vicinity of where she had slipped.

58 Mr Blacket’s submission was, first, that the floor was not wet. His alternative position was that if the floor was wet, it became so as a result of the spillage from Ms Aquilina’s first ice bag. His fall back position was that if there was water on the floor it did not establish negligence or a breach of duty.

59 Mr Holmes, senior counsel for the plaintiff, submitted that the plaintiff’s version was inherently probable. He pointed to what he said was a consistency in the accounts given by the plaintiff, Ms Plant and Ms Aquilina in the statements they made in 2003 when their memories were obviously better.

60 The evidence of the plaintiff and Ms Plant on the one hand is in stark contrast to that of Ms Cortis and Ms Aquilina on the other. Both Ms Harris and Ms Plant claim that they saw liquid on the floor and Ms Harris said that she slipped on it. Both Ms Cortis and Ms Aquilina claimed to have immediately made a close inspection of the floor in the area of the fall and saw nothing. Ms Aquilina also claims to have looked at the area of the floor from a relatively good vantage point some five minutes before the incident and saw nothing.

61 The inconsistencies in the evidence are explicable, in my view, by the varying abilities of the witnesses to accurately perceive the events at the time they occurred, and to accurately recall the events, and the sequence in which they occurred, after a period in excess of six years had elapsed. Having regard to that delay it is appropriate to give greater significance to the statements that they made either on the day of the incident or within months of it.

62 The most compelling feature that favours the plaintiff is the fact that she made her claim that there was liquid on the floor in the area where she fell very shortly after the incident. She did so without any immediate thought of holding Woolworths responsible. Indeed, as I will deal more with later, the thought did not occur to her to take any action against Woolworths for some considerable time. Ms Harris raised this issue of the floor being wet with Ms Cortis. She informed Ms Thompson who made a note of it on Ms Harris’ copy of the Customer Incident Notification form (Exhibit B page 18). She included it in the history that she gave at the Hawkesbury District Hospital. She included slipping on a “very slippery and wet substance” in her statement of 25 September 2003. That statement was made for workers compensation purposes and not in contemplation of any proceedings against Woolworths.

63 Ms Plant was insistent about there being liquid on the floor. She said the same in the statement she made in November 2003 in connection with the plaintiff’s workers compensation claim. The plaintiff had still at that time not considered holding Woolworths responsible or taking any action against it and so it cannot be (and was not) suggested that by saying this Ms Plant was endeavouring to assist the plaintiff in that regard.

64 Against that, however, there is the problematic issue of the plaintiff saying that it was a person dressed in a white uniform like that worn by delicatessen staff who wiped up the liquid on the floor. I am satisfied that no Woolworths employee wore such a uniform at that time. Attempts to suggest this might have been a member of the bakery staff, or somebody wearing a white apron, are unacceptable. Such explanations are inherently improbable and also fly in the face of the evidence of Ms Plant. She claimed that it was the younger of the two female employees who were involved in the incident which quite obviously was a reference to Ms Aquilina. But Ms Aquilina did not simply appear suddenly, wipe up some liquid and disappear.

65 Ms Harris did not say that she saw the liquid on the floor prior to or at the time of her fall. Her evidence as to when she first saw it was when she was sitting on the chair. I am satisfied that it was Ms Aquilina who obtained the chair.

66 Ms Harris said that soon after she made that observation the lady in the white uniform appeared, wiped up the liquid with a paper towel and disappeared to the back of the store.

67 It is of some note that Ms Harris did not give evidence of observing any moisture on her shoe, her clothing, or anything else. Whether it would be expected that there would be if there was an area of liquid as small as was described is not something that was explored.

68 Ms Aquilina spilled water from the first bag of ice that she brought. In her evidence in chief she said she thought that she could have obtained a paper towel to clean it up. In cross-examination she said that she forgot to do so. In any event, she said that after that happened she returned to the back of the store to obtain another bag of ice.

69 Ms Aquilina was initially only with Ms Harris for a short time before leaving to retrieve the chair and, once Ms Harris was seated on the chair, Ms Aquilina immediately left to get the ice. Given that Ms Harris had just sustained a painful injury and was obviously in some distress, I would not expect that she would have paid much attention to the appearance of Ms Aquilina. She would have been more concerned with her own condition. So, it is explicable that she would not have recognised Ms Aquilina as the person who wiped up the liquid on the floor before Ms Aquilina hurried off to retrieve the second bag of ice. The clearly incorrect claim by Ms Harris that the person who wiped up the liquid on the floor wore a white delicatessen uniform is indicative of her impaired perception of events.

70 Ms Harris claimed that she first sat on the chair in the express checkout area and that it was from there that she observed the liquid on the floor. She said that the chair was then moved to the store side of that area and that it was then that the ice was brought. I am satisfied that she was mistaken about that sequence of events. In her statement of 25 September 2003 she provided the same sequence of events. I am satisfied that she genuinely, though mistakenly, believed that to be the case.

71 Ms Plant claimed to have seen Ms Harris on the ground and then observed liquid on the floor. She said that the employee, who must have been Ms Aquilina, then assisted in helping Ms Harris up before leaving. She said that then “another girl from Woolworths came and wiped up the liquid on the floor. She had a paper towel and she wiped it up”. However, Ms Plant said that this person was the younger of the two female employees who were involved in the incident and so she was clearly attributing the wiping up to Ms Aquilina. As a consequence, I am satisfied that she, like Ms Harris, was incorrect in her portrayal of the sequence of events.

72 Ms Plant provided a similar account of the sequence of events in her statement of 18 November 2003. For the same reasons I am satisfied that it is obviously incorrect. I note also that Ms Plant claimed that it was the older of the two female employees who she said was the one who completed the paperwork who obtained the chair. She also thought that this older employee was the first to arrive on the scene. I am satisfied that she was incorrect about both of those matters as well.

73 I have concluded that what most probably happened is this. Ms Harris fell in the vicinity of the entrance to the express checkout lane. Ms Aquilina, according to a contemporaneous record, had observed five minutes earlier that the area where the fall occurred was clean. Ms Aquilina and Ms Plant were the first to attend to Ms Harris, probably Ms Aquilina shortly before Ms Plant. Ms Aquilina went to the service desk and used either the microphone or a telephone to summon Ms Cortis to the scene and then returned to Ms Harris. Ms Aquilina remained there, helping to get Ms Harris up off the floor and waiting for the attendance of Ms Cortis. After Ms Cortis arrived Ms Aquilina hurried off to retrieve a chair. Ms Cortis assessed the scene and determined for herself that there was no spillage. When Ms Aquilina returned Ms Harris was assisted in sitting on the chair. Minutes later she was to record that the area was clean but that there was a mark left by Ms Harris’ shoe. Ms Aquilina then went off and obtained a bag of ice. When she returned to provide it to Ms Harris some water leaked from the bag. Ms Aquilina went away to obtain a paper towel to clean up the spillage. In this time Ms Cortis was away retrieving the paperwork from the office. Ms Harris observed that there was water on the floor. She concluded, honestly but mistakenly, that she had slipped in that water. Ms Plant also observed that water. Ms Aquilina returned and cleaned that spillage up with a paper towel. Both Ms Harris and Ms Plant observed that action. Ms Aquilina then returned to the back of the store to obtain another bag of ice. Ms Cortis returned with the paperwork and commenced to record the details of the incident.

74 Accordingly, I am not satisfied that it is more probable than not that the plaintiff slipped because of some liquid substance on the floor of the defendant’s store. For this reason alone, the plaintiff’s claim must fail.


Breach of duty

75 Whilst I have held that the plaintiff has failed in establishing the first matter necessary for determination it is appropriate that I consider the next issue, given that I have heard all of the evidence and submissions concerning it.

76 The defendant admits that as occupier and/or operator of the supermarket it owed a duty of care to the plaintiff to take reasonable care to ensure that the supermarket floor remained appropriately clean, non-slip and safe to walk upon by persons such as the plaintiff. The defendant has also conceded that if there was liquid, such as water, on the floor then it would be slippery.

77 The primary issues for resolution are those of breach and causation.

78 The plaintiff contends, generally speaking, that there was a failure to ensure that the floor was clear of liquid substances; a failure to have in place an adequate system of cleaning and inspection of the floor; a failure to detect the presence of liquid on the floor and to take appropriate safeguards in relation to it; and a failure to utilise a floor surface that remained sufficiently non-slip in the presence of water or other liquid.

79 Evidence as to the system that was in place at the Kings Langley supermarket in June 2003 was given by Ms Cortis. The floors were cleaned by cleaning staff between 1.00am and opening time (generally 7.00am). There was no general cleaning of the floor outside of those times. Staff were constantly instructed what to do in the event of spillages. Such training commenced with a one day eight hour induction course for new staff. Upon completion of the course a new staff member was required to complete a questionnaire that included testing of their knowledge of safety procedures in relation to spills.

80 There were regular safety announcements given at the beginning of each day in which staff were reminded of various matters including what to do in the event of spillages. Each week there was a focus on different issues with the topics being rotated over a six weekly cycle. Spillages were dealt with for one week in that six weekly cycle. In addition there were monthly occupational health and safety meetings attended by representatives of staff from each department in the store at which any accidents or incidents concerning occupational health and safety in the preceding month were discussed. Ms Cortis also gave evidence about a poster that was on the notice board in the staff lunch room which provided instruction about a variety of safety issues including spillages.

81 The instruction given to staff in relation to spillages was to the effect that they should always be on the lookout for spills. A spillage, when discovered, should never be left unattended. A member of staff was to remain at the spillage site and to warn any customers in the vicinity until another staff member brought cleaning materials. A sign was put in place to warn of the floor being wet with the sign to remain in place until the floor was clean and dry. Ms Aquilina confirmed that such signs were kept underneath the service desk (see Exhibit 6).

82 Whilst I accept that these systems were in place they were obviously not completely successful in preventing customers from slipping and falling within the store.

83 Ms Cortis conceded that Woolworths had “quite a few” slip and fall claims made against it caused by “a large number of substances on various floors throughout the stores” (T234). Exhibit T comprises files from Woolworths’ Risk and Safety Department relating to slip and fall incidents at the Kings Langley store in July 2002 to March 2003. There were nine such incidents with customers slipping on substances such as oil, water, rice and fruit (grapes and bananas). All of the incidents occurred within the store itself with none occurring in the checkout areas. The produce department was the most frequent location with four out of the nine incidents occurring there. Only one of the claims resulted in a sum of money being paid by way of settlement. Out of pocket medical expenses were paid in a further two. None proceeded to litigation.

84 It was agreed between the parties that at the relevant time the Kings Langley store had between 12,000 and 14,000 customers per week.

85 It is understood that the incidents described in the files (Exhibit T) were the entirety of slip and fall incidents that were reported to staff at the Kings Langley store in the 12 months leading up to the incident concerning the plaintiff. 10 incidents in 12 months with some 624,000 to 728,000 customers passing through the store in that period equates to approximately 1 incident per 62,400 to 72,800 customers. Another way of putting that is to say that between 0.0014% and 0.0016% of customers were involved in such an incident in that 12 month period. Moreover, that should be seen as a conservative analysis because it is understood that the customer numbers relate to persons actually engaging in a financial transaction at the store and does not include any accompanying persons.

86 Another way of looking at this material is to examine the frequency of such occurrences. In that 12 month period there was a slip and fall as a result of a spillage at an average frequency of once every 36.5 days. What the material does not establish is the frequency of spillages generally, that is, whether or not they involved a slip and fall incident.

87 Within Exhibit B (page 395) there is a printout of all public liability claims arising at the Kings Langley store in the 3 years from July 2002 until July 2005. There are 21 slip and fall incidents related to a spillage listed. In Exhibit C (page 422) there is a similar printout for the period July 2001 to June 2002 showing 3 slip and falls from spillage incidents. For the combined period of July 2001 to July 2005, based upon the above “customer” figures, this equates to about 1 incident per 104,000 to 121,333 customers. Alternatively, that is an average frequency of 1 slip and fall incident related to spillage every 69.5 days. Again, the material does not disclose the frequency of spillage incidents not involving a slip and fall.

88 Specific non-slip floor surfacing is provided in other parts of the Kings Langley store. For example, a non-slip mat is shown in a photograph of a grape and berry display (Exhibit C page 479) and a non-slip floor surface is shown in a photograph of a flower display (Exhibit C page 449). It was put to Ms Cortis that there was nothing to prevent Woolworths providing such non-slip matting or floor surfacing in the area of the express checkout lane and she agreed. The value of her opinion on such a topic is somewhat dubious, having regard to her position within the company and her apparent lack of knowledge of the cost of doing so when weighed against the potential benefits.

89 Another possibly relevant matter to note is that in the hour or so before the incident involving the plaintiff the express checkout area was relatively quiet. Ms Aquilina estimated that only 20 to 30 customers used the express checkouts in that time.

Consideration

90 The plaintiff contends that such system as the defendant had in place to ensure that the floor of the supermarket was clean, non-slip and safe to walk on was clearly inadequate. It was submitted that this fell short of what a reasonable person would have done in the particular circumstances. It was acknowledged that the floors were cleaned in the early hours of the morning but there was no cleaning during the hours that the store was open to the public. The system of having staff lookout for spillages and to take immediate action was reactive. There was no system for regular inspection and, where necessary, cleaning. Reliance was placed upon a number of authorities that I am about to refer to in support of the proposition that the plaintiff had failed to take precautions against the risk of harm which the defendant conceded was foreseeable and not insignificant. On behalf of the defendant reliance was placed upon what was said by Clarke JA in Sleiman v Franklin Food Stores Pty Ltd (trading as Franklin Food Stores) (1989) Aust Torts Reports 80-266 but I am satisfied that the law has developed beyond what there appears.

91 Drakos v Woolworths (SA) Ltd (1991) 56 SASR 431 was a case involving very similar facts to that in the present. There was a supermarket of broadly similar size in a suburb of Adelaide. It attracted about 1,000 customers per week. It had a system of cleaning and monitoring very similar to that described in the evidence in the present case. The trial judge in that case found the system to be inadequate. He did not make any direct finding on causation and that was one of the issues on appeal. The Full Court of the South Australia Supreme Court, however, found the evidence favoured the plaintiff on that issue and the appeal was dismissed. Olsson J stated (at 449):

“... the evidence established an inherent likelihood of the floor becoming slippery in consequence of spillages from time to time and reasonable care demanded a considerable degree of supervision of the floor areas. The system adopted by the appellant was plainly inadequate. The fact that the oily substance was present is an indication of inadequate supervision and prima facie evidence of a failure to exercise reasonable care leading to the incident which occurred”.

92 Zelling AJ put it this way (at 453):

“A jury properly instructed would have had no problem with causation in this case. Here you have a busy supermarket. It has a high incidence of slippery substances on the floor. It is only cleaned professionally at the beginning of each day. Detection of spillages occurring during the day is left to the observation and action of the supervisor and the staff. As the judge observed, what was everybody’s responsibility was nobody’s responsibility. It is an obvious inference from that state of affairs that a spillage might remain undetected and not removed for a long enough time to be causative of a plaintiff’s injury such as occurred in this case.”

93 Of course, each case must be decided on its own facts and circumstances. Whilst there are similarities in the system of cleaning, inspection and dealing with spillages in Drakos v Woolworths and the present case, that case is distinguishable on the basis that there was evidence that there were “frequent spillages”. The trial judge expressly found that “the incidence of finding slippery things on the floor was high” and the store manageress had said that “it happened frequently” (444.1). In the light of that it is understandable that there was a finding that the system was inadequate and that there was a failure to exercise reasonable care. In the present case, however, the evidence is not such as would permit a conclusion that spillages were “frequent”.

94 Reference was also made to Shoeys Pty Ltd v Allan, unreported, Court of Appeal 3 May 1991, Kelly v Lend Lease Retail Pty Ltd (1993) 113 FLR 21 and Allcorp Cleaning Services Pty Ltd v Fairweather [1998] NSWCA 12.

95 In Kelly v Lend Lease Retail Pty Ltd, Higgins J in the Supreme Court of the Australian Capital Territory reviewed a significant number of previous “slippery floor” cases before stating (at 28):

I conclude from those decisions that, whilst the mere presence of a hazard on a floor, rendering it slippery will not per se support liability, there is a duty on an occupier to be conscious of and take reasonable steps to avert injury by slipping and falling to those the occupier knows or ought to know will use the floor.

That duty will be relevantly breached and liability established in one of three categories of circumstances:

o If it appears by evidence, however slight, that the foreign matter in question had been on the floor in question for a greater time, on the balance of probabilities, than is reasonable before it ought to have been seen and removed.

o If it appears that no reasonable system for inspection and cleaning of the floor was in place having regard to expected hazards, it may be inferred that it is probable that if such a system had been in place then the fall would have been avoided.

o If the substance was one which ought not to have been allowed on the floor in the first place then the defendant will be liable whether or not the cleaning system is reasonable and however long it had been there.

96 The decision in Kelly v Lend Lease Retail Pty Ltd was subsequently considered in the Victorian Court of Appeal in Kocis v S E Dickens Pty Ltd (1996) ATR 81-382 p 63292 and in turn by the New South Wales Court of Appeal in Franklins Ltd v Hunter [1998] NSWCA 85 where the Priestley JA adopted the specific approval by the Victorian Court of Appeal of the second of the categories identified by Higgins J. Priestly JA, however, clarified that the word “may” should be understood not as “must” or “shall” but as meaning “it will be open to a court if in its view on the facts it is appropriate to do so to draw the inference there referred to”.

97 In Franklins Ltd v Hunter the plaintiff had slipped on a light green and transparent liquid. The cleaning system in place was similar to that in the present case in that reliance was placed on staff observation and reaction and there was no procedure for monitoring and inspection at regular intervals. Three staff members in the vicinity of where the fall occurred had not noticed any spillage. The trial judge was unable to determine the length of time that the spillage had been on the floor. He regarded it as an “open question” whether the existence of an adequate system of monitoring and inspection would have probably prevented the fall from occurring. He referred to the second of the categories identified by Higgins J and concluded that there had been a breach of the defendant’s duty of care and that it caused or contributed to the plaintiff’s fall.

98 The plaintiff in Allcorp Cleaning Services Pty Ltd v Fairweather (supra) slipped on a potato chip and fell in an area of the Ashfield Shopping Mall during a busy Saturday lunch time in a food court area with a terrazzo floor. A cleaner was employed by the appellant to attend exclusively to this part of the mall and the evidence was that had he done so, he would have covered each part of the area approximately every fifteen minutes. The principal matter in issue at the trial was whether the system had broken down on the particular occasion. The trial judge concluded that there was no cleaner in the relevant area for anything up to three-quarters of an hour before the accident. Mason P referred to the approval in Franklins Ltd v Hunter of the second of the categories identified by Higgins J in Kelly v Lend Lease Pty Ltd before stating (at p 3):

In my view this second category can be applied to a situation where there was a reasonable system for regular monitoring but where it was established that the system broke down. Such a situation is really one where, for the relevant period of time, there was no reasonable system. Given the fact that this was a crowded shopping centre where food spillages would have been reasonably foreseen; given that the risks inherent in this were addressed by the particular system which I have referred to; and given that that system on the probabilities broke down to the extent referred to, then the inference that it was probable that if such a system had been in place the fall would have been avoided was a proper inference to draw.

For that reason, the finding of negligence against the defendant and third party at trial was properly made.

99 In additional remarks, Priestly JA referred to Kocis v S E Dickens Pty Ltd (supra), Brady v Girvan Bros Pty Ltd t/as Minto Mall (1986) 7 NSWLR 241 and Shoeys Pty Ltd v Allan (supra) before stating (at p 4):

The authorities are thus multiplying at the level of Courts of Appeal in state jurisdictions in support of the view that in cases such as the present, findings of fact such as the trial judge here made, properly support the finding of liability against the person whose duty it was to keep the floor clean in accordance with the common law duty owed to persons coming to a place which in the circumstances needs a cleaning system to be operating and to be operating efficiently for the safety of legitimate visitors to that place.

100 The latest case upon which the plaintiff relied was Franklins Limited v Brown [2000] NSWCA 177. In that case a customer slipped on a loose lettuce leaf on a vinyl floor in the produce area of a supermarket. The primary contention of the plaintiff at trial was that the defendant had failed to institute and maintain a system of cleaning the floors to prevent injuries being caused in the way the plaintiff had sustained hers. The defendant contended that there was an adequate system of cleaning or, alternatively, even if there were shortcomings it was not the failure of the defendant in that respect which caused the injury. There was evidence that the floor in the produce department was subject to regular cleaning but that did not cover a half hour period in the afternoon when the incident occurred. During that period it was the responsibility of staff to maintain vigilance. Powell JA stated (at [10]):

“This system, in my view, was clearly inadequate and his Honour was perfectly entitled to say that that system was not good enough”.

101 I am satisfied on the balance of probabilities that the defendant was in breach of its acknowledged duty of care. It used a floor surfacing that it conceded became slippery when wet. The system employed to ensure that the floor was clean, non-slip and safe to walk upon was inadequate. The very nature of the activities within the premises created a constant risk of spillages. Whilst I am unable to conclude on the evidence in this case that spillages were “frequent”, it at least established that they were not uncommon. The defendant did not deny the risk but sought to ameliorate it by measures which I regard as being insufficient. Having a system of requiring staff whose employment is primarily directed to other endeavours keep an eye out for spillages left too much, unacceptably, to chance. Some areas of the supermarket might be regularly frequented by staff while other areas not. I accept that adopting measures such as having staff devoted to ambulatory inspection of the floor surfaces could never completely eliminate the risk but it would act to reduce it in a significant way.

102 The plaintiff also contended that another precaution to avoid the risk of harm available to the defendant was to provide an alternative floor surface like the types referred to earlier (at [88]). This contention gives rise to a question of whether the provision of such alternative floor surfacing material was reasonable and practical. This was not an issue that was explored in the evidence. It would be relevant to know something about the cost of providing alternative floor surfacing material and whether it would be practical having regard to the number of people and shopping trolleys that traverse the supermarket floor space. There was no exploration in the evidence of whether the use of other floor surfaces might give rise to alternative risks to customers, for example, tripping in relation to mats. The plaintiff has the onus and I am not persuaded when considering the burden of taking these types of precautions to avoid the risk of harm (s 5B(2)(c) Civil Liability Act) that such steps would be reasonable and practical.


Causation

103 Again, despite the fact that I have found against the plaintiff on the first issue, it is appropriate that I proceed to consider whether it is more probable than not that the defendant’s breach of duty caused or materially contributed to the plaintiff’s fall and consequent injury, assuming there had been liquid on the floor that caused or contributed to the plaintiff’s fall. Was the defendant’s negligence a necessary condition of the occurrence of the harm (s 5D(1)(a) Civil Liability Act 2002)? And, is it appropriate for the scope of the defendant’s liability to extend to the harm so caused (s 5D(1)(b))?

104 There was really no issue about the second of those matters. Quite clearly it is appropriate for the scope of the defendant’s liability to extend to the harm that was occasioned to the plaintiff. However, I am not satisfied in respect of the first matter. Ms Cortis made a contemporaneous note (on Exhibit 4) that Ms Aquilina had observed five minutes before the fall that the floor in the relevant area was clean. Ms Aquilina had been standing at a cash register in the express checkout area and had a good vantage point. An estimated 20 to 30 customers had passed through the area in the preceding hour without incident. This tends to confirm that there was nothing on the floor until very shortly before Ms Harris’ fall.

105 Whilst I have held that a system of monitoring and inspection should have been in place for the defendant to have taken appropriate precautions against the risk of harm from customers slipping on spillages, it would be unrealistic in my view for that monitoring and inspection to have been so frequent that it would have detected any liquid spilt in the express checkout area almost instantly. To contend otherwise would be to have it that the defendant should have had somebody keeping the area under almost constant surveillance. If one was to contend that, one would also need to contend that such constant surveillance be carried out throughout the store. At one point it was contended for the plaintiff that CCTV monitoring could have achieved this end, but whether it be monitoring by that means, or by the physical presence of staff, such a proposal is impractical.

106 Another matter to be borne in mind is that if there was water on the floor as the plaintiff claimed, it was not in an area where there was a high risk of spillages. The area was not immediately at the checkout counters where goods would be transferred from hand to counter or from basket or sometimes trolley to counter. It was not in an area where goods were selected from shelves and either placed in the customer’s hand or the customer’s basket or trolley. In short, it was not where one would expect any movement by way of handling of goods. An adequate system of monitoring and inspection would, by necessity, give priority to areas in which the risk of spillage was greater.

107 To conclude on this topic, upon the assumption that there was water on the floor as was claimed, I am satisfied that it is more probable than not that the defendant was negligent but not satisfied to that standard that such negligence was the cause of harm to the plaintiff.

Limitation Act defence

108 On 9 April 2008 the plaintiff filed a Notice of Motion seeking an order pursuant to Uniform Civil Procedure Rule (“UCPR”)14.28 that paragraph 7 of the defendant’s defence be struck out. Paragraph 7 of the defence pleads that “the plaintiff’s cause of action is not maintainable by reason of the provisions of sections 50C and 50D of the Limitation Act 1969”. In the alternative an order was sought pursuant to UCPR 28.2 that there be a separate hearing of the limitation issue prior to the substantive hearing.

109 The hearing of the Notice of Motion came before Smart AJ on 4 August 2008. He said that he felt it unlikely that an order striking out paragraph 7 of the defence could be made as it could not be said that the defence was not reasonably arguable. He declined to order a separate hearing of the limitation issue and determined that it was appropriate that it be dealt with at trial.

110 Accordingly, it remains for me to determine as a discrete issue the defence that the plaintiff’s cause of action is not maintainable by reason of sections 50C and 50D of the Limitation Act. Those sections are, relevantly, in these terms:

50C Limitation period for personal injury actions

(1) An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire:

(a) the 3 year post discoverability limitation period, which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff,

(b) the 12 year long-stop limitation period, which is the period of 12 years running from the time of the act or omission alleged to have resulted in the injury or death with which the claim is concerned.

Note. The 12 year long-stop limitation period can be extended by a court under Division 4 of Part 3.

(2) ...

(3) ...

50D Date cause of action is discoverable

(1) For the purposes of this Division, a cause of action is discoverable by a person on the first date that the person knows or ought to know of each of the following facts:

(a) the fact that the injury or death concerned has occurred,

(b) the fact that the injury or death was caused by the fault of the defendant,

(c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action.

(2) A person ought to know of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact.

(3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person.

(4) ...

111 The cause of action in the present matter arose on 19 June 2003. Proceedings were commenced by the filing of the plaintiff’s statement of claim on 12 October 2007. Accordingly, the proceedings would be caught by the limitation period if the cause of action was “discoverable” by the plaintiff prior to 12 October 2004.

112 It is clear that the plaintiff knew that she had sustained an injury (s 50D(1)(a)) immediately after the incident on 19 June 2003, albeit that she thought that she had suffered a simple sprained ankle (T142.30). She agreed that after a bone scan on 4 July 2003 she knew she had sustained a “broken ankle” (T105.25).

113 In relation to the issue in s 50D(1)(b), the plaintiff gave this evidence (T122 – 123) when being cross-examined about her version concerning there being a dispute with a Woolworths employee about there having been water on the floor and the staff member writing on a form that there was no spillage:

Q. Do you think that they were trying to cover up for their own negligence?

A. Yes.

Q. And insofar as there was material of some kind on the floor you thought the staff were trying to cover it up to protect themselves?

A. Yes.

Q. Is that right?

A. Yes.

Q. And it would have the beneficial effect of making it more difficult for you to establish a case in negligence against Woolworths?

A. I don't think there was any, there wasn't anything about a case against Woolworths, it was the store protecting themselves, there was no store manager there that day, the actual store manager and they were just trying to carry on like there hadn't been a spillage.

Q. And in your own mind you were very clear about that, that there had been a spillage?

A. Yes.

Q. And it was a matter of significance because in your mind there shouldn't have been a spillage there, is that right?

A. Especially in the area where it was there shouldn't have been.

Q. And you clearly felt at that stage that Woolworths were at fault in permitting, in those staff at Woolworths permitting that moisture or water, fluid, to be there, at that time when you fell?

A. Well, in the area where it was it shouldn't have been there.

Q. And from the very time that this accident happened you knew that so far as Woolworths are concerned they were at fault, is that right?

A. They, Woolworths shouldn't have anything spilt on the, any wet, dry, whatever should not have been on the floor.

HIS HONOUR

Q. Is that a yes?

A. That they were at fault?

Q. That was the question?

A. Yes.

And (at T145-146):

Q. You saw it as Woolworths fault, didn't you, they put the water on the floor, is that right?

A. I don't say they deliberately put the water on the floor but the water was on the floor or the wet, the interior was wet.

Q. And when they tried to say that it wasn't wet and you disagreed with them you formed the opinion that the staff were lying, didn't you, that's what you told us?

A. Well, I saw the water on the floor, Kathy saw the water on the floor, we saw them wipe it up, and then they said no, there wasn't any water on the floor, there never has been. I can only come to the opinion that they were trying to cover it up.

Q. Trying to cover up their fault, weren't they?

A. That it was their mistake, their

Q. Their negligence?

A. Yep.

114 I am satisfied that on the day of the incident the plaintiff knew, in the sense that she believed, that the injury was caused by the fault of the defendant.

115 The more significant question is whether the plaintiff knew, or ought to have known, that her injury was sufficiently serious to justify the bringing of an action on the cause of action prior to 12 October 2004.

116 The evidence relating to this issue is primarily documentary, being reports by various doctors and rehabilitation consultants and documents recording what the plaintiff said to other people such as her manager at Kimberley-Clark and the case officer handling the matter for QBE Insurance, the insurers for Kimberley-Clark. In addition there is the evidence the plaintiff gave when being cross-examined on this material. The evidence the plaintiff gave was rather unimpressive. She gave the distinct impression that she was at pains to downplay how seriously she regarded her injury.

117 I accept that in the immediate aftermath of the incident the plaintiff did not regard the injury as serious and certainly not something that would justify the bringing of an action against the defendant. That is understandable as an x-ray carried out at the Hawkesbury Hospital did not detect any fracture. Nevertheless she was certified as being unfit for work for three days. On 23 June 2003 her general practitioner, Dr Rose, diagnosed a sprained right ankle and certified her as being unfit for work for that and the next four days. On 27 June 2003 Dr Rose certified her as being fit for “suitable duties” until 4 July 2003. However, on 3 July 2003 Dr Rose again certified the plaintiff as being unfit for work until 11 July 2003. I will not continue to mention all the specific occasions upon which she was certified as being unfit for work but will summarise that topic later.

118 On 4 July 2003 a fracture was identified in an x-ray carried out by a Dr Schembri of Nuclear Medicine & Ultrasound Associates at Blacktown. It was put to the plaintiff that she knew shortly after that scan was taken that she had suffered a more serious and significant injury than a simple sprain and she responded, “Yes, it was just a broken ankle, I mean” (T105.28). She agreed, however, that her leg was in plaster for four to six weeks, she could not drive a car and she had to work from home (T106.25 – 106.40).

119 A further x-ray on 14 August 2003 confirmed a fracture described as a “cortical interruption through the anterior process of the calcaneus” (Exhibit B page 44). The following day the plaintiff consulted an orthopaedic surgeon, Dr Harrison who suggested she engage in walking, hydrotherapy and physiotherapy.

120 It was suggested to the plaintiff that she knew at this stage that her injury was much more serious than she first thought, having gone from a simple sprained ankle to a case of an ununited fracture. She responded:

Well, it actually never was a sprained ankle, it was broken from the beginning, it was just that it didn’t show up in the x-ray, the initial x-ray (T107.45)

I didn’t class it as serious, all it was was a broken ankle, a broken bone (T107.50).

I didn’t class it as serious. I was going to get it fixed and get on with my life (T108.10).

121 The plaintiff sought a second opinion and consulted Dr Newman on 5 September 2003. She was not happy with the progress she was making – indeed, “There was no progress being made” (T110.9).

122 The form she completed when she attended upon Dr Newman (Exhibit B page 52) included her stating that her main complaint was pain in the ankle which on average was 4 out of 10 and at worst was 10 out of 10. She was walking with the aid of a cane and crutches. Dr Newman’s report (Exhibit B page 53) includes that the symptoms had been slow to settle; she had recently injured her back; and pain was predominantly lateral hindfoot in location but extended over the dorsum of the foot; and that the foot felt generally stiff and uncomfortable. Dr Newman diagnosed a “transverse joint capsuloligamentous injury, with a calcaneocuboid joint avulsion fracture, together with a ligamentous injury at the talonavicula joint dorsum”. He was optimistic that symptoms would settle given sufficient time but if they had failed to settle within a month he would arrange an MRI.

123 The plaintiff returned to Dr Newman two weeks later on 19 September 2003. He reported (Exhibit B page 56) that since he had last seen her there had been some initial improvement but there had been a deterioration in the last four days and she had returned to the use of crutches. He arranged an MRI.

124 The MRI was carried out on 9 October 2003. Upon review by Dr Newman on 17 October 2003 he noted that the plaintiff’s foot pain had failed to significantly improve. After examining the scan results he determined that “nothing short of a formal resection of the small non-union fragment would be expected to settle symptoms. In addition, an arthroscopic evaluation of the medial talar dome is also in order, as this may also require a small debridement procedure” (Exhibit B page 69).

125 Dr Newman performed an arthroscopy and removed broken bone fragment in the calcaneocuboid joint on 22 October 2003. The leg was placed in plaster.

126 Some improvement appears to have been seen by Dr Newman when he reviewed the plaintiff on 3 November 2003. She was to gradually reduce her reliance upon crutches.

127 Dr Newman next saw the plaintiff on 28 November 2003. He noted that she had made steady improvement in symptoms and had returned to regular light workplace activities. He described her progress overall as “excellent” (Exhibit B page 94).

128 At the end of November 2003 a rehabilitation consultant from Injury Management Assist had been assigned as case manager to oversight the plaintiff’s rehabilitation. An Injury & Workplace Assessment Report by the case officer and another rehabilitation consultant of 10 December 2003 (Exhibit B page 99) included that the plaintiff indicated that she was “continually experiencing varying levels of pain” and that she was also having trouble sleeping, She rated her pain at 7/10, describing it as intermittent aching. She also complained of limited movement in her right ankle and could not externally rotate it without pain. She was managing with household duties with family support. She could not make beds. She could hang out washing according to the report, but not according to her evidence (T113.27).

129 The plaintiff conceded by way of agreement with suggestions put to her that she was “still having significant difficulties with (her) right leg” and “despite optimistic suggestions by the medical practitioners who treated (her), in (her) own mind, (she) wasn’t getting better”. Indeed, she said, “There wasn’t an improvement” (T115.25).

130 Dr Newman saw the plaintiff on 22 December 2003. This was six months after sustaining the injury and she was reported to be continuing to experience pain. Dr Newman reassured her that “there should be steady improvement in symptoms, although the process has obviously been slow” (Exhibit B page 109).

131 On 31 December 2003 the case officer at QBE Insurance, Ms Shayne Moore, had a telephone conversation with the plaintiff in the course of which she inquired whether the plaintiff was pursuing a third party claim. She replied that she was not at the moment and that she was not sure what it was. Ms Moore’s record of the conversation (Exhibit O) includes that she “explained” and that she would “address it again with her” at a later stage. When asked about this in cross-examination the plaintiff responded, “I’m not sure, I don’t recall that conversation” and “I’m not sure, I can’t remember” (T118.25 – 118.34). When asked to clarify whether she was not sure or could not remember she opted for the latter (T118.38).

132 By the end of December 2003 the plaintiff was finding it difficult to drive. Her right ankle was swollen and she found it difficult to use the brake and accelerator (T117.45).

133 On 16 January 2004 the plaintiff made a written statement with the assistance of a person at Australian Injury Helpline Ltd (Exhibit B pages 116 – 120). She said that she contacted this organisation after seeing an advertisement on television (T119.35) – “I think it said if you had been injured at work call this number and seek legal advice” (T119.42). She explained that she contacted this organisation after seeing the advertisement because for the past six months fellow employees, her relatives and her children had been exhorting her to get some legal advice concerning her injury (T120.10). She maintained that the conversation with Shayne Moore on 31 December had nothing to do with it (T118.47).

134 The statement includes, “I have never made a personal injury claim in the past”. It sets out various restrictions in her regular activities. In relation to restrictions on working it states:

I don’t know how long this will continue. I have been told by the doctor that it is just a matter of time. I don’t even know if it will ever full (sic) recover.

135 The plaintiff’s attention was drawn to that passage and she gave this evidence:

Q. So, no one was offering you any certainty that your condition was going to definitely get better, is that right?

A. No, but I’m, I was sure it was going to recover and that I was going back to work as a sales rep at Kimberley-Clark.

Q. But you said, “I don’t even know if it will ever full recover”, rather suggests that there was some doubt in your mind about that?

A. I was pretty depressed.

HIS HONOUR

Q. So, was that a yes?

A. Yeah

Q. So there was some doubt in your mind as to whether you will ever fully recover?

A. Fully recover to the point where, where I had been before the accident, but still, I could still do my sales rep job as I did eventually do without having full recovery. (T125).

136 On 22 January 2004 the Australian Injury Helpline Ltd rendered an account to Mr Trevor Lindsell, solicitor, of Bell Lawyers (previously Bell & Partners). The account was for obtaining a statement from the plaintiff and:

(I)nitial discussions with Ms Harris about her rights under The Workers’ Compensation Act and the legal process in ‘general’ ... General discussions with Ms Harris regarding legal differences and options available.

137 Based upon this it was suggested to the plaintiff that there had been a general discussion regarding the options available and the legal differences between workers’ compensation and bringing common law proceedings but she replied, “No, no, not that I can remember anything like that” (T126.35).

138 On 23 January 2004 the plaintiff saw Dr Newman who reported (Exhibit B page 126, 128) that she had experienced a:

(S)udden exacerbation of pain ... for no apparent reason ... Pain has been severe ... an MRI is indicated.

139 The plaintiff agreed that at this time she had an unusual gait and was favouring one leg – “Well, I always had but it was worse” (T115.49) – and that she had very significant tenderness around the scar from the operation, swelling, and discomfort and irritability in the joint (T116).

140 An MRI scan was carried out on 5 February 2004 but no cause for the recent exacerbation of symptoms was evident (Exhibit B page 136).

141 On 9 February 2004 the plaintiff had her first meeting with Mr Trevor Lindsell. She said that the reason she saw him was, “to see what this Australian Injury Help Line had to offer as an injured person”. She denied that she wanted to explore with him the two options that had been suggested by the person at the Australian Injury Help Line, a lump sum claim for workers’ compensation or a common law claim. In relation to the suggestion of the latter, she said:

No, it was a broken ankle. One, one bone broken. It wasn’t some huge accident. It was just get it fixed, get back to work. (T128.7).

142 Mr Lindsell’s file note makes reference to there being a possible case against Woolworths (Exhibit B pages 138 – 150). Although the plaintiff conceded that she must have given Mr Lindsell the information that he recorded in his file note she was “not sure, I can’t remember” him advising that there was a possible claim in negligence against Woolworths (T129.49).

143 To a suggestion to the effect that she might be claiming an inadequate memory as a matter of convenience she referred to the time that had elapsed, the number of interviews she had attended and doctors she had seen and also, “My memory is not very good at all with the amount of medication that I take now” (T130.6). She insisted, however, that her recollection of the circumstances of the accident were not affected (T130.11). I accept that it would be difficult for the plaintiff to remember everything she had been told in all of the consultations she had with doctors and lawyers. I find it surprising, however, that she could not recall having been told that one possible course of action available to her was to sue Woolworths although I express no concluded view about that because the degree to which her memory has been affected by analgesic medication was not something that was explored.

144 A follow up letter from Mr Lindsell to the plaintiff of 11 February 2004 (Exhibit B pages 152 – 155) includes a lengthy discussion about his advice concerning her workers’ compensation claim. It includes that he had advised her that her condition needed to stabilise before a medical assessment could be arranged. This was said in the context of discussing her potential entitlement to lump sum workers’ compensation. Mr Lindsell advised her that she would be entitled to compensation for pain and suffering if the whole person impairment was greater than 10 per cent. The letter concludes:

POTENTIAL NEGLIGENCE CLAIM AGAINST WOOLWORTHS

You have a potential negligence claim against Woolworths if it can be established that the fluid on the floor had been there for a significant time or the spillage had been reported and nothing done prior to you sustaining the injury. We note your offsider, Kathy although she had not seen the fall, was aware of the fluid on the floor prior to it being cleaned up. Probably the most significant consequence of proceeding with the public liability claim is that if you are successful it brings to an end your rights under the Workers’ Compensation Act. There are also significant difficulties in establishing liability in slipping cases and you are fortunate, as discussed, to have available rights under the Workers’ Compensation Act. At the time of the conference you instructed us that you did not wish to proceed with a negligence claim against Woolworths, however, we can review that at a later time if you wish on the basis that you have three (3) years from the date of injury in which to commence proceedings in relation to any public liability claim.

145 Whilst the plaintiff was hesitant in responding to questions about whether this reflected what she had discussed with Mr Lindsell, saying that she was “not sure” and that she did not “know whether that was discussed or whether it was just put in the letter at, when the letter was sent to me”, she eventually agreed that that by the time she received and read this letter she knew that this was Mr Lindsell’s advice (T130.30 – 131.26).

146 A proposition was put to the plaintiff that by the time she saw Mr Lindsell she knew she had a serious injury that had long term incapacitating consequences for her insofar as she had been off work for approximately eight months with periods where she went back but only in a part-time capacity. Her answer was, “No” (T132.3). This notwithstanding that she had had surgery on her leg which had been unsuccessful in relieving her of her symptoms, that she was unable to fully function in terms of ambulation, and that it had a significant effect on her domestic, work and recreational life (T132.19). She agreed, however, that the position continued to deteriorate after she had seen Mr Lindsell (T132.28).

147 Later in the cross-examination there was this evidence:

Q. Mr Lindsell told you that if you ran a common law case it would bring to an end your workers’ compensation rights, didn’t he?

A. I can’t remember him saying that.

Q. And, you see, I further suggest at the very first conference you told him that you did not wish to proceed with a negligence claim against Woolworths, didn’t you?

A. I, I can’t remember.

Q. And he further told you that he could review that at a later time if you wish on the basis that you had three years from the date of injury in which to commence proceedings in relation to any public liability claim. That is what he told you, didn’t he?

A. I can’t remember.

Q. You knew what a public liability claim involved, didn’t you?

A. Actually, no, I didn’t.

Q. I see. You see, he told you that you had a potential negligence claim against Woolworths, didn’t he?

A. No, I can’t remember what he told me.

Q. Would you have a look again at 155 again [Exhibit B page 155 – where the above extract from the letter from Mr Lindsell appears]? Do you have it in front of you there, page 4?

A. Yep, yep.

Q. It is very clear that you, he told you firstly you had a potential claim against Woolworths?

A. Yes.

Q. That’s right?

A. Yes. If it can be established that the water was on the floor for a significant time.

Q. Yes. Subject to all those conditional matters but he told you, you had a potential claim in negligence against Woolworths, didn’t he?

A. In that paragraph, yes.

Q. And I suggest to you that you gave him clear instructions that you did not want to commence a claim against Woolworths, didn’t you, at that time?

A. I can’t remember. (T147.48 – 148.38).

148 I formed the impression at the time of hearing this evidence, and it has been confirmed but subsequent review of the transcript, that the plaintiff was being rather disingenuous. I am satisfied that at least the letter from Mr Lindsell, if not the oral advice he gave in conference, brought home to the plaintiff that she potentially had a common law case to bring against Woolworths if she chose to pursue that option but that she was aware of the potential difficulties, the lack of guarantee of success, and the potential impact it might have upon her workers’ compensation entitlements. I am satisfied that she made a deliberate and informed decision not to pursue such an action and not to even explore further the possibility of doing so.

149 When she resumed her evidence on the following day of the hearing this topic was revisited. The plaintiff agreed that Mr Lindsell had pointed out that it was a benefit that all of her medical expenses were being paid under the Workers’ Compensation Act (T153.10). She also agreed that since he had written to her in 2004 confirming her instructions that she did not want to commence common law proceedings against Woolworths up until the middle of 2006 when the third year anniversary of the accident approached her instructions to Mr Lindsell did not change (T153.30).

150 On 25 February 2004 the plaintiff received a cortisone injection into the ankle (Exhibit B page 165). When she next saw Dr Newman on 8 March 2004 he noted a “significant and dramatic response”. He described there having been a good initial response to the cortisone injection (Exhibit B page 168-169).

151 Sadly, however, this initial response was short lived as when the plaintiff returned to see Dr Newman on 25 March 2004 her pain had deteriorated to the pre injection level (Exhibit B page 171). A CT scan was arranged and it was carried out the following day. It revealed “two tiny fragments” (Exhibit B pages 173-174).

152 The plaintiff returned to Dr Newman on 23 April 2004. She had been on annual leave from 5 to 16 April. He reported that her symptoms had settled during her holiday period but had been exacerbated since returning to work. His report includes:

Leonie is really quite desperate for a solution to this ongoing problem, and she remains quite disabled. I think that nothing short of a formal revision procedure, with a further dorsal capsular debridement and removal of the two remaining fracture fragments, will suffice, and I have explained all the above to Leonie. She understands the risks involved, and is keen to proceed. Of course, I can make no guarantee that the outcome will be perfect, but I think Leonie should be considerably improved over her current status. (Exhibit B page 178).

153 Dr Newman carried out this procedure, removing scar tissue and residual bone fragments on 5 May 2004.

154 The plaintiff gave this evidence:

Q. You went off work in May 2004 and were off work for about a month following operative treatment that you had on 5 May, didn’t you?

A. Yes

Q. In which they took some bone fragments out of your ankle joint, is that right?

A. Yes

Q. And if you didn’t know it after the operation on 22 October 2003, by 5 May 2004 you knew that this simple sprain injury that you were diagnosed with in June 2003 was a much more serious injury, didn’t you?

A. No, I didn’t class it as that serious.

HIS HONOUR: That wasn’t what you were asked.

BLACKET

Q. You knew it was a much more serious injury than first contemplated, didn’t you?

A. No. (T132.39 – 133.8).

155 The last answer I find incapable of acceptance.

156 When Dr Newman saw her again on 17 May 2004 she remained on crutches and was wearing a Cam Boot. He reported that she could begin graduated weight-bearing and discard the boot (Exhibit B pages 185 – 186).

157 The next appointment with Dr Newman was on 8 June 2004. The doctor then reported that she had experienced episodic lower back pain which was her predominant concern (Exhibit B page 188).

158 The plaintiff saw Mr Lindsell again on 9 June 2004. His follow up letter to her (Exhibit B page 190) has the subject heading “Your Workers Compensation Claim”. It noted that she had undergone further surgery on 5 May 2004. Mr Lindsell confirmed his advice that he could not obtain an appointment with a specialist “to obtain an assessment of impairment” until her condition had stabilised which “normally occurs 9 to 12 months following surgery which is going to delay your case a little bit”. He proposed that she see him again in November 2004.

159 Dr Newman saw the plaintiff next on 4 August 2004. She reported that she was “approximately 50% better” following the procedure in May but continued to have a degree of pain with all weight-bearing activities. This caused her to limp and she was experiencing discomfort at night which disturbed her sleep. He also reported that although she was not aware of any significant symptomatic improvement over the last two to three months he remained confident that she would improve further (Exhibit B page 214).

160 On 26 August 2004 Dr Newman reported that the plaintiff continued to experience significant problems with her lower back and that her hindfoot had also remained a problem. She was found to be in considerable discomfort, mainly because of her lower back. He could find nothing wrong with the ankle, however, and was at a loss to explain why she was still experiencing symptoms in that location. He opined that she had developed a pain syndrome and took the liberty of referring her to the Blacktown Pain Management Service for an opinion as well as for management recommendations, particularly with regard to her lower back complaint. He concluded, “For the time being, there is no need for me to see her again” (Exhibit B page 218).

161 When the plaintiff attended at the Blacktown Pain Management Service she was asked to complete some forms with personal details and information as to her symptoms. In an “Oswestry Disability Questionnaire” (Exhibit B page 225) her responses included the following:

The pain is fairly severe at the moment.

It is painful to look after myself (washing, dressing) and I am slow and careful.

Pain prevents me lifting heavy weights but I can manage light to medium weights if they are conveniently positioned.

Pain prevents me from walking more than 500 metres.

Pain prevents me from sitting more than 30 minutes.

Pain prevents me from standing for more than 30 minutes.

Because of pain I have less than 6 hours sleep.

My sex life is nearly absent because of pain.

Pain has restricted my social life and I do not go out as often.

Pain restricts me to short necessary journeys under 30 minutes.

162 Another questionnaire which the plaintiff completed on 3 September 2004 (Exhibit B page 229) required her to rank seven categories of life activity on a scale from 0 for “No disability” to 10 for “Total disability”. She indicated scores of 8 for Family/Home Responsibilities, 9 for Recreation, 8 for Social Activity, 9 for Occupation, 9 for Sexual Behaviour, 8 for Self Care and 9 for Life Support Activity (i.e. eating, sleeping, breathing).

163 On 22 September 2004 the plaintiff had a consultation with Dr Nario at Compleat Rehabilitation and Pain Management Services, Blacktown. He reported that she had chronic right foot pain which may be consistent with synovitis and post-traumatic degenerative changes. He also opined that her descriptions of the pain may suggest a neuropathic element, for example, chronic regional pain syndrome, although she did not satisfy all of the criteria for this. He proposed a trial of conservative measures and prescribed analgesic medication (Exhibit B page 256).

164 On 5 October 2004 the plaintiff sent an email to Ms Moore at QBE Insurance requesting permission for a change in her treating doctor from Dr Rose to a Dr Javed (Exhibit B page 259). She referred to Dr Newman having said that he could offer no more treatment and she expressed concern about the ability of Dr Rose to treat her in the absence of someone telling her (Dr Rose) what to do. The email includes:

Dr Rose has never heard of my condition and does not appear to have the resources to research it ...

As this appears to be a long term injury and I need a doctor that will take more of an active interesting in managing my injury rather than just taking orders from some one else so as to fill in the required forms for Workcover. I would like to change to a doctor that would be able to make informed decisions and be able to discuss my treatment with me as they would actually understand what is going on, and what options and treatments are available and where this is all heading towards. While I realise that this is not a usual condition that has developed with my ankle I would like my doctor to at least have more of an interest than Dr Rose has.

... I feel that a more proactive Doctor is needed.

I have been to see Dr Javed at Riverstone as a private patient and he seems to be interested in his patients and actually knew what I was talking about when I mentioned my ongoing ankle problems. (Emphasis added).

165 Ms Moore approved the request for the change in treating doctor (Exhibit B page 260).

166 When cross-examined about the terms of this request the plaintiff gave the following evidence:

Q. The position was in June 2003, on 19 June you thought you had suffered a simple sprained ankle?

A. Yep.

Q. By the time you wrote your letter at some stage prior to 8 October 2004 the situation had become extremely complicated, hadn’t it?

A. It had changed dramatically but I still had not given up hope of getting over it.

Q. Sure, but you knew you had what now appeared to be a long term injury, is that right?

A. Long term as in, yes, it had gone on for over twelve months. (T142.29 – 142.40).

167 The fact that the plaintiff confined the expression “long term” in that fashion was indicative of the manner in which she gave her evidence generally. As I indicated before commencing this evidence review, she often sought to downplay how serious she realised her injury was.

168 A monthly Rehabilitation Progress Report of 13 October 2004 (Exhibit B page 261) includes that the plaintiff had told the author on 7 September 2004 that she had been informed at the Blacktown Pain Management (Clinic) that she was suffering from Reflex Sympathetic Dystrophy and had been given information about this condition. She said she was overwhelmed by the information she had been given and unsure about her future prognosis and employment options.

169 The report also includes that at a meeting on 14 September 2004, attended by the plaintiff, her supervisor at Kimberley-Clark and the rehabilitation consultant, the plaintiff raised her request for a change in her treating doctor “given her new diagnosis and the complex nature of such”. She was advised to raise that request with Ms Moore at QBE. That explains the email of 5 October 2004. The plaintiff also raised her concern that her employment would be terminated as she was now unsure of her ability to return to her pre-injury duties.

170 The plaintiff subsequently told the rehabilitation consultant about her consultation with Dr Nario on 20 (sic) September 2004 and claimed that he had said that she was suffering from Neuropathic pain but was unsure whether this was as a result of Reflex Sympathetic Dystrophy (Exhibit B page 262).

171 Exhibit Q is an extract from the leave records of Kimberley-Clark in respect of the plaintiff. In the period 19 June 2003 to 12 October 2004 she was on workers’ compensation leave for a total of about 246 days. That equates to about 80 per cent of her working days (excluding annual leave, sick leave and public holidays).

172 There was a good deal of evidence of events which transpired after October 2004 but aside from three matters I am about to mention it is unnecessary to review it as the question is whether she knew, or ought to have known, that her injury was sufficiently serious to justify the bringing of an action on the cause of action prior to 12 October 2004. On 9 June 2006, ten days before the third anniversary of the incident in which she sustained her injury, the plaintiff signed written instructions to Mr Lindsell which were to the effect that she did not wish to pursue a common law claim and preferred to retain her entitlements in respect of workers’ compensation (Exhibit B pages 528-530). The plaintiff’s employment with Kimberley-Clark was terminated, effective from 28 February 2007. On 22 May 2007 she consulted her present solicitors and that led to the commencement of proceedings with the filing of the statement of claim on 12 October 2007.


Consideration

173 The term “sufficiently serious to justify the bringing of an action on the cause of action” received consideration by the Court of Appeal in Baker-Morrison v State of New South Wales [2009] NSWCA 35. Basten JA regarded it as involving the person obtaining medical and legal advice because a consideration of whether an injury is sufficiently serious to justify the bringing of an action requires the exercise of both legal and medical expertise (at [41]). He found further support for this:

[42] ... (F)rom the fact that a number of statutory regimes contain floors or caps on recovery of damages, or both: see, eg, Civil Liability Act, s 16. No proper view could be formed about the justification for bringing an action, absent information of that kind.

174 Basten JA also stated (at [43]) that it was appropriate that s 50D be read in a broader context. He cited the requirement of s 347(2) of the Legal Profession Act 2004 that a lawyer filing a claim for damages (or a defence) must certify that the claim has a reasonable prospect of success.

175 On behalf of the plaintiff it was submitted that consideration must be given to the time at which the injury had sufficiently stabilised to permit a determination to be made as to how serious it was. It was submitted that another consideration was that the person must know, at least in approximate terms, whether the injury is sufficient to bring the person over any of the statutory thresholds in relation to claims for damages. It was contended that the plaintiff’s injuries had not stabilised sufficiently for any assessment to be made until well after 12 October 2007. Further, that she was in no position prior to that date to have obtained the necessary legal advice as to what thresholds could or would be exceeded or what heads of damages were likely to have been available to her if an action was to be commenced.

176 On my understanding of the authorities – the three decisions of the Court of Appeal concerned with the provisions, Baker-Morrison, Bostik Australia Pty Ltd v Liddiard & Anor [2009] NSWCA 167 and Frizelle v Bauer [2009] NSWCA 239 - the 3 year post discoverability limitation period does not commence to run only from the time the plaintiff knows (or ought to know) the precise extent to which the injury is serious, and/or the heads of damages under which a claim can be made, and/or the quantum of damages that may be recoverable. For example, consideration of whether the legal costs may be capped because damages might not exceed a certain amount is no part of the statutory test.

177 Much reliance was placed upon the judgment of the late Goldring DCJ in Rawle v Southstate Industrial Supplies Pty Ltd [2008] NSWDC 70; 7 DCLR (NSW) 134. There his Honour stated:

[30] The legislation clearly does not require the commencement of a claim until the full extent of the injury and loss are known. This is particularly so in the light of the requirements for certification by legal practitioners, when action is commenced.

178 What his Honour there said is correct but he was referring to a requirement in relation to the commencement of proceedings, not about discoverability.

179 An earlier passage in the judgment was cited with approval by Basten JA in Baker-Morrison when he was dealing with the nature of the knowledge which the person is required to have:

Section 50D – “know”

[45] This last line of reasoning has relevance also to the nature of the knowledge which the person is required to have, for the limitation period to commence to run. In common with extension provisions, s 50D refers, somewhat simplistically, to whether the person “knows” (or ought to “know”) the identified facts. It is rare that facts will be known in any absolute sense: rather, as a practical matter, the person will have a belief that certain matters can be established, usually on the balance of probabilities, which is sufficient for the purposes of legal proceedings. Such a belief may be held on firm grounds or on shaky grounds. The belief is likely to involve an assessment of various matters, none of which can be readily quantified. Questions involving causation, fault and assessment of damages are all susceptible to these kinds of uncertainty. Nevertheless, the chapeau of the sub-section refers to knowledge of identified facts, and not to an assessment of prospects of success in the prospective proceedings. Further, despite the inability to bring proceedings without a solicitor in a position to certify in accordance with the requirements of the Legal Profession Act, it is the knowledge of the plaintiff’s mother which is the focus of the statutory test.

[46] It follows from this analysis, in accordance with the concession made by the State, that the plaintiff’s mother did not at any stage within the relevant period have actual knowledge sufficient to satisfy par (c) or, in all probability, par (b). The approach adopted above with respect to par (c) is largely consistent with that adopted by Goldring DCJ in Rawle v Southstate Industrial Supplies Pty Ltd [2008] NSWDC 70; 7 DCLR (NSW) 134 referred to by the trial judge at [17]. Judge Goldring referred to s 50D in the following terms:

“[25] ... The question of whether or not the bringing of action is justified is not simply a matter of looking at the seriousness of the injury, but also of looking at that injury in the light of the statutory requirements for claiming compensation, and that requires some understanding of the law.

[26] In order to know whether the injury is sufficiently serious to justify the bringing of action, a person must know not only that the injury is serious, but also, in approximate terms, whether that injury is sufficient to bring the person over any of the statutory thresholds that now exist.”

180 It was contended that in the present case Mr Lindsell had no information about the seriousness of the plaintiff’s injury in 2004 and early 2005 which would enable him to advise (a) if it was more than the threshold of 15% of a most extreme case (s 16 Civil Liability Act); (b) if an award for future economic loss could be made (s 13 Civil Liability Act); (c) that she had a need for, or an entitlement to, damages for gratuitous or commercial care which exceeded the threshold in s 15 (Civil Liability Act); or that there were reasonable prospects to commence proceedings (s 345 Legal Profession Act).

181 The last point in that submission is at odds with what Basten JA said at [45] of Baker-Morrison – “the subsection refers to knowledge of identified facts, and not to an assessment of prospects of success in the prospective proceedings”. Sections 50C and 50D are concerned with when a cause of action is discoverable, not with the prospects of success of any proceedings brought in respect of it. It might be patently obvious that an injury and its effects are sufficiently serious to exceed all of the thresholds that have been referred to but the evidence to prove the claim might be entirely deficient. It would be anomalous if it could be said that the cause of action is not discoverable until more evidence became available to satisfy a lawyer that there was a reasonable prospect of success.

182 Moreover, I do not understand Basten JA to have held that all of the heads of damages that might be available must be known to the person. To know that an injury is sufficiently serious to justify the bringing of an action requires legal and medical expertise, as I have earlier referred to his Honour having said. But the degree to which matters within such expertise need to be known with precision will depend upon the circumstances of the individual case. There will be cases in which it will be patently and immediately obvious that an injury is so serious that all of the statutory thresholds will be exceeded without having to wait until the injury has stabilised. There will be cases in which it will be obvious that some thresholds will be exceeded whilst others cannot yet be determined. The nature of the thresholds will then require consideration in order to decide whether it was possible to determine at that point that the bringing of an action is justified, or whether such a determination could only be made at a later point when the position is clearer.

183 In the present case there was no need for the plaintiff to know with absolute certainty prior to 12 October 2004 whether an action might include a claim for damages for non-economic loss before she could know whether the bringing of an action was justified. By that date it would have been well apparent that the plaintiff had significant out of pocket expenses, past economic loss and past domestic assistance for which claims could be made and there was a realistic prospect that a claim might also be made for future domestic assistance at least for the short to mid term. The state she was in by October 2004 must also have given rise to there being an extremely high likelihood of recovering for non-economic loss. Enough was known, or could have been known if reasonable steps were taken to explore the issue, prior to that point that it was highly likely that the nature of her injury and the effect it had upon various aspects of her life would not be less than 15% of a most extreme case (s 16 Civil Liability Act). Cf, e.g., Owners – Strata Plan 156 v Gray [2004] NSWCA 304 at [43] and Bon Appetit Family Restaurant Pty ltd v Mongey [2009] NSWCA 14 at [22] – [27].

184 One of the “thresholds” to which attention was invited by senior counsel for the plaintiff was said to be the provision of s 198L of the Legal Profession Act “where if you recover less than a hundred thousand dollars the costs are capped at $15,000” (T338.25). There may be a transcription error but I take this to be a reference to the provisions of Division 9 of Part 3.2 of that Act. It is difficult to see how a provision concerning the costs that a lawyer might recover can be relevant to a determination of when a cause of action might be discoverable.

185 It was submitted on behalf of the plaintiff that Mr Lindsell was advising the plaintiff in 2004 and 2005 that he was unable to give her an assessment of whether a claim was justified until her condition had stabilised (T379.46 – 381.9). Mr Lindsell said no such thing and I do not interpret what he did say as carrying this implication. I have earlier set out the terms of his advice and the instructions he had been given at his first meeting with the plaintiff in February 2004. True it is that he referred to a “potential negligence claim against Woolworths”. Contrary to the submission that was made (T378.31 – 379.30), however, it was not expressed to be a “potential” claim because of any question about the injury not having stabilised and what might be recoverable in terms of damages. I am satisfied that Mr Lindsell expressed it as a “potential” claim in the sense that it was a possible course of action open to Ms Harris but one with attendant risks in establishing liability and it had the disadvantage if a favourable verdict was obtained of bringing to an end her rights in relation to workers’ compensation.

186 Basten JA referred to “ought to know” as an objective test. The definition of the phrase in s 50D(2) he said (at [57]) required an assessment to be made of what would have been ascertained had all reasonable steps been taken by the person to ascertain the fact in question.

187 In the present case the plaintiff was aware of a number of matters prior to 12 October 2004 including the following:

a) Treatment she had received in the previous 15 months had thus far been unsuccessful.

b) That treatment included 2 surgical interventions.

c) There were lengthy periods in which she was in plaster and/or using crutches and/or a Cam Boot.

d) Pain and associated symptoms had made a substantial impact upon her working, domestic and social life. She had not been able to work for the majority of the time. She had difficulties driving a car. She was impaired in relation to domestic tasks.

e) In January 2004 she had doubts about whether she would ever fully recover.

f) She was aware at least by February 2004 that an option available to her was to take common law proceedings against Woolworths. She instructed her solicitor that she did not want to do so but wanted to continue with the reassurance of receiving her workers’ compensation entitlements. That remained her choice until 2007.

g) By April 2004 she was described as being “really quite desperate for a solution to this ongoing problem and ... remains quite disabled”.

h) Her back started to be the source of significant pain and she associated this with the injury to her ankle.

i) In August 2004 her orthopaedic surgeon told her that notwithstanding she remained in significant pain there was nothing more he could do for her. He told her he thought she may have a pain syndrome and she was referred to a pain clinic.

j) On her attendance at the pain clinic she was in “fairly severe” pain. It impacted upon daily tasks such as washing and dressing. It rendered her largely inactive. She could not sleep well. He sex life and social life had been severely restricted. She rated herself high on all seven scales in a Pain Disability Index.

k) In September 2004 she was told by a doctor at the pain clinic that he thought she had Reflex Sympathetic Dystrophy.

l) She thought that her injury appeared to be a “long term” one and that it was “not a usual condition” that had developed.

m) She was doubtful about her future employment prospects as she was unsure of her ability to return to her pre-injury duties.

188 I am satisfied that the plaintiff had actual knowledge by February 2004 that her injury was sufficiently serious to justify the bringing of an action on the cause of action. She had been told so by Mr Lindsell in her conference with him and this had been confirmed to her in his subsequent letter. There was no equivocation in Mr Lindsell’s advice that a claim against Woolworths was contingent upon the seriousness of her injury. The only question was the risks associated with the difficult task of proving liability. The cause of action was discoverable by at least mid February 2004 when the plaintiff received Mr Lindsell’s letter and it was certainly discoverable before 12 October 2004.

189 If I be wrong in that conclusion I am nevertheless satisfied that, having regard to the situation the plaintiff found herself in by the end of September 2004, she “ought to have known” that her injury was sufficiently serious to justify the bringing of an action on the cause of action. I am satisfied of this because she had not taken all reasonable steps before that time to ascertain that fact. I am satisfied that if she had done so, by way of seeking the advice of her solicitor, she would have ascertained that fact. She had foreclosed on Mr Lindsell giving her any further advice by having instructed him that she did not want to pursue a common law claim. A reasonable step in the circumstances would have been to ask for more detailed advice about the prospect of commencing the action he had told her was available. If she had done so I am satisfied that she would have ascertained from him, perhaps in conjunction with some medical expertise, that her injury was sufficiently serious.

190 I am satisfied that the proceedings were not commenced until after the expiration of the three year post discoverability limitation period in s 50C(1) of the Limitation Act and that as a consequence, in the terms of the subsection, the action is not maintainable.

Conclusions

191 I have concluded:

I am not satisfied that there was liquid on the floor in the area in which the plaintiff slipped and fell.

I am satisfied that the defendant breached its duty of care by failing to take reasonable precautions against the risk of harm to a person such as the plaintiff.

I am not, however, satisfied that even if there was liquid on the floor that the defendant’s negligence was a cause of the harm that the plaintiff sustained.

In any event, the commencement of proceedings was outside the three year post discoverability limitation period provided by s 50C of the Limitation Act and as a consequence the action is not maintainable.

Orders

192 There will be a judgment for the defendant.

The plaintiff is to pay the defendants costs.

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LAST UPDATED:
10 February 2010