Phillips v Woolworths (Queensland) Pty Ltd [1999] NSWSC 678

New South Wales Supreme Court CITATION : Phillips v Woolworths (Queensland) Pty Ltd [1999] NSWSC 678 CURRENT JURISDICTION : Common Law Division FILE NUMBER(S) : NR 600022/98 HEARING DATE(S) : 23 June 1999 JUDGMENT DATE : 24 June 1999

PARTIES : Sally Phillips v Woolworths (Queensland) Pty Limited JUDGMENT OF : Grove J at 1

COUNSEL : B. Murray QC with G. Petty (Plaintiff) P. Crittle (Defendant) SOLICITORS : Pollack Greening & Hampshire (Plaintiff) Blake Dawson Waldron (Defendant) CATCHWORDS : Negligence - Industrial Accident - Supermarket - Employee slips on leakage from stacked chickens - Damages assessed DECISION : Judgment for plaintiff in the sum of $680,786.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MICHAEL GROVE J

Grafton: Thursday 24 June 1999

600022/98 - SALLY PHILLIPS v WOOLWORTHS (QUEENSLAND) PTY LIMITED

JUDGMENT

1 HIS HONOUR: In this action the plaintiff seeks damages from her former employer in connection with injuries sustained in an accident on 24 December 1996. 2 The plaintiff is a young woman born on 19 November 1976. She was educated at the Grafton High School where she completed her education sitting for the Higher School Certificate. Apparently she did not attain a very high mark in English, and this becomes relevant as she apparently did not achieve the level required to enter into a course for kindergarten teaching or child minding which was an ambition of hers. I mention this at present because whilst the ambition is the subject of reference in a number of places throughout the evidence there is nothing to found a conclusion that the plaintiff would eventually have achieved that ambition. 3 After leaving school she commenced to work full-time for the defendant in its supermarket, an occupation which she had pursued part-time whilst she was a school girl. In the light of all the evidence it seems reasonable to postulate any findings as to damages on a career in the employment of the defendant. As noted, the action had occurred on Christmas Eve. Although the pleading gives a different time I accept that it happened at about four or 4.30 in the afternoon. I am satisfied that the supermarket was very busy at that time. 4 The plaintiff on that day was rostered to work in the serving of customers in what is known as the delicatessen area. The store also makes available to the public chickens cooked on a rotisserie, those chickens also being available for sale in fresh form. The chickens are delivered to the store but require preparation, that is to say, the tucking of the wings into part of the carcass of the bird and the placing of the legs in a position so as to make rotisserie cooking possible. Other staff of the defendant had attended to this in relation to a large number of chickens. There is an estimate in the evidence that some 800 kilograms of chickens were stacked onto a three level trolley. The chickens are delivered in boxes containing about ten carcasses. After preparation they are returned into the boxes. 5 It has been observed that juices, blood and other fluid, leaks from the carcasses and although there is some plastic lining within the boxes it was a common experience for liquid to leak onto the floor. On the day in question this large accumulation of stock had apparently been standing in an area for about an hour. The preparation had been done and it was intended to move the carcasses back into the coolroom. 6 This task was to be performed by an employee Mr Darren Demmery. The movement of the trolley could not effectively or conveniently be done by him alone and he acquired the assistance of the plaintiff and one other female staff member to perform the move. Mr Demmery was pulling the trolley from one end and the two women were pushing from the other. The accident happened when the plaintiff's foot encountered leakage from the chickens which had been stacked on the trolley and she slipped and fell to the ground striking her knee. 7 I accept the evidence of Mr Simpson that the hazard encountered by the plaintiff could very simply have been avoided if the trolley had been fitted with a catch tray or any other simple gadget to prevent such leakage. Indeed the negligence of the defendant in the circumstances I have described is almost self-evident, as was recognised by counsel for the defendant when with some understatement he submitted that that the defence case on liability was not his strongest point. 8 After some objection I admitted a statement by Mr Darren Demery. That statement reveals that it was a common occurrence for liquid to drip through cartons onto the floor. The matter had been reported to superiors. I accept that evidence. Indeed it seems to me that a mesh trolley of the type depicted would inevitably allow such leakage onto the floor if it was stacked with items such as chicken carcasses. 9 A more focused submission was made by the defendant in relation to the assertion of contributory negligence. The defendant's case was based upon two aspects of the evidence principally. The first a concession in cross-examination by the plaintiff that she was not looking at the ground as she was walking and, the second, an exercise in motion physics derived by the defendant in cross-examination of the plaintiff herself concerning the location of her foot, the movement of the trolley and a consequent assertion, if one accepted her evidence precisely, that the single step forward she said she had made could not have brought her foot into contact without any leakage from underneath the trolley. 10 I do not accept that those concessions in cross-examination should be taken as literal measurements of what occurred. Quite obviously a motion was going on at the time. The existence of the spill from the trolley and its connection with the fall was evident in the defendant's own report to its insurer. 11 Mr Demmery saw what occurred. I accept the plaintiff's evidence in relation to it. Despite the concessions in cross-examination I am comfortably satisfied what happened was that the trolley began to move and the plaintiff stepped forward into the area where the trolley had been and her foot contacted the detritus on the floor causing her to fall. 12 In relation to her concession that she was not looking at the time, I do not find it a requirement of a prudent employee to cast her eyes to the floor in order to perform the task which she was asked to undertake on this occasion. I am not satisfied that the defendant has demonstrated that the plaintiff was herself a significant contributor to the accident or her consequent damage. There will be a finding of negligence as has been established but contributory negligence has not been established. 13 There will therefore by a verdict for the plaintiff undiminished by any discount for contributory negligence. 14 I turn therefore to the issue of damage. I should specify at the outset I have formed the impression that the plaintiff was a very vulnerable young lady. There is evidence that she was afflicted by what was described as dizzy spells and she gave evidence of occasions when she had, to use her description, hyperventilated. She consulted a medical practitioner and was told she suffered from stress. 15 These matters give some explanation to the rather tragic and extraordinary results from what must be described as a minor injury, but is of course of no benefit of the damages to the defendant which, it is trite to say, must take a plaintiff as it finds her. 16 The injury to the knee seems to have been minor indeed. The plaintiff's response to this minor injury seems to have been, and this is my description rather than that of any medical practitioner, almost hysterical. Regrettably, the evidence does not give me any psychiatric opinion as to this extraordinary and extravagant response to her minor injury, although I note that the defendant arranged for consultation and the plaintiff was examined by a psychiatrist called Dr Petroff, but no report from him was served. I infer that anything that Dr Petroff would have said would not advance the defendant's case. 17 I have said that the injury itself was minor, as I shall note in a few minutes time when I refer to the medical evidence, apart from a chrondromalacia nothing could be found that was wrong with the knee. An MRI scan showed total normality and indeed the disastrous situation of the plaintiff's knee is, in my finding, entirely due to her perception of pain and her inability to appreciate that there is no substantial injury in the physical sense to the knee. That is not to say that the syndrome that has developed has not now led to a situation where there is damage to the leg. 18 There is damage also to other parts of her body because to favour that leg she has hopped on her left leg causing damage there. She has back pain and contractures are developing. 19 In substance there is no real dispute amongst the medical examiners, the evidence of all of whom was received by way of reports tendered by consent. It is appropriate to extract some of the material from the reporting doctors. 20 The history of injury was that the plaintiff after bumping her knee during the fall worked on for about half an hour to the end of her shift. She was off work for the next four days during the Christmas break. She noticed her knee was swollen and she noticed it did not improve. She returned to work but it was not improving. She saw a locum of her general practitioner and later her general practitioner, Dr Terrey. Her complaints provoked him to refer her to Dr Hefner an orthopaedics surgeon and it was he in February 1997 who admitted her to private surgery for arthoroscopy. 21 It is convenient to take up the story, as it were, from the findings of Dr Hefner. He said: "I could move the knee through all perfectly normal range of movements without any clunks and without any ligamentous problems. However I then went onto perform arthroscopy and found that she had a pristine knee in terms of menisci, cruciate ligaments and articular surface of the tibia and femur. There were no loose bodies. Behind the medial facet of the patella there was a divot, like a long gutter with a flat tear in it on the articular cartilage. This obviously represented a chrondromalacia and could be caused by direct trauma, so I then undertook to use a chondrotome to smooth this off." 22 It might be observed that this finding was the only initial physical indication of injury that was detected by any examination until a later time when non-use led to the dystrophy. Indeed Dr Hefner in 1997 predicted what was to occur. Referring to his examination of the plaintiff during the ensuing year he added: "When I saw her at that stage I stated to her that her leg had that motley blue colouring to it associated with non-use and I wondered whether she may have had a reflex dystrophy developing as a result of not using the leg." 23 Then (in response obviously to a question from the solicitors) he reported: "It would appear from the fall that she had that she sustained some degree of damage behind the patella, however she has gone onto develop a reflex dystrophy of the knee and the only treatment required is prolonged time and encouragement to use it and walk upon it." 24 The tragedy to which I have made reference is that the plaintiff has not used or walked upon the leg. Her response has been such that she complains that even a drop of water falling upon the leg causes her pain. She refuses to allow medical examiners to touch her. 25 There is evidence of a relationship of a sort which she has with a young man called Smith who gave evidence corroborating the matters to which I have referred. It should be stated however that it was not suggested to the plaintiff that she was feigning or malingering these symptoms. 26 As I have already remarked, it would have been possibly helpful to have some psychiatric opinion, but it seems to me doing the best I can on the material before me that the plaintiff's reaction is likely to be found in her own personality as manifest in what I referred to as vulnerability. 27 The plaintiff has also been examined on a number of occasions by Dr Ian Chan an orthopaedic surgeon to whom she was referred to a second opinion. He confirmed that the plaintiff had suffered an autonomic dystrophy secondary to the injury to her knee when she slipped over at Woolworths. I note that in the course of his consultations with the plaintiff he reported that he told her not to stop using the leg, as to do so would worsen her situation. 28 Unfortunately, the plaintiff has not seemed to be able to comply with that advice. In a report dated 29 May 1998 Dr Chan said this: "I said to Sally and her mother that definitely at this stage I have no reason to subject her to another operation as it may worsen her symptoms. She is still extremely tender in all areas of her lower leg. It is a shiny leg. There is some wasting of her calf which is not surprising and a blueness to it. She has however some tenderness in her back and as a back lesion may cause right leg pain and disability. I feel it would be worthwhile to investigate her spinal region to see if anything in particular may be found which might be causing her symptoms." 29 As I have said in passing, the non-use of the leg has as a secondary consequence provoked symptoms in other parts of the body particularly the other leg and the lower spine. 30 There is a report from Dr Gregory Carr a rheumatologist. This report was tendered both by the plaintiff and by the defendant. In the light of that unanimity it is perhaps worth quoting the final observations of Dr Carr. He said: "She truly has had gross pain in her right leg and extreme sensitivity and temperature and colour alteration from this injury. She has not responded to sympathetic blockade. She is unfit for employment that involves any standing work. She would be fit to do some work in a sitting position. However of a part-time nature, say, beginning with about 12 hours a week. The prognosis is guarded. Only about 25 per cent cases of sympathetic dystrophy respond to any medical treatment and it certainly does not look as though Sally is going to respond. It may take seven to ten years for the effect on the nervous system to slowly abate. The ultimate prognosis is uncertain. There is a direct relationship between her fall onto her right knee and her ongoing right leg symptoms. There is an indirect nexus between her low back, left leg symptoms and the aches and pains in the hands, shoulders and wrists as these have occurred as a compensation for long periods of weight bearing on one leg and the use of crutches." 31 Next I should refer to a report tendered by the plaintiff of Dr Miller a specialist and general surgeon. He noted it was extremely difficult to examine the plaintiff as she would not allow him to touch her leg. She complained that even slight tactile stimulation caused extreme pain. Dr Miller reported in part this opinion: "As a direct result of a fall at work this lady injured her right knee. She unfortunately developed the serious complication of reflex sympathetic dystrophy. She has had all the known treatments for this condition and has failed to respond to date. From the appearance of her right lower limb now she appears to be developing a fixed flexion deformity of her right ankle and right knee and considerable muscle wasting of the quadriceps and calf musculature. Even if her reflex sympathetic dystrophy resolves in the future it is apparent that she will be left with a useless right leg due to the development of contractures in her right ankle and right knee joints. It would appear that the compensatory overuse of her left leg and lower back are leading to further symptoms. In regard to her back she has congenital scoliosis and it is clear that the continued use of crutches and favouring of the right leg is beginning to cause her back symptomatology." 32 The final medical opinion to which I will make reference is a report from Associate Professor Jones which was tendered on behalf of the defendant. A quotation from his report will confirm my earlier statement that there is in essence no real issue about the medical situation of the plaintiff. Professor Jones stated in his conclusion: "Miss Phillips suffered what would seem to have been a minor accident in an industrial accident on 24.12.96 following which she developed disuse atrophy of her right leg and a reflex sympathetic dystrophy. At this time she is not in any treatment program, her condition is not improving and there is little functional use of her right leg which she holds in a position of flexion contractures. I believe her to be independent in personal care and many activities of daily living principally as a one legged person and she would have potential to undertake vocational pursuits of a clerical capacity. Her condition as described is one of reflex sympathetic dystrophy - the cause of which in this instance is difficult to determine. Unless she comes to terms with her perceptions of impairment and uses her right leg then it will become progressively atrophic, contracted and useless and pain will increase ultimately leading to rather radical decisions of management."