District Court New South Wales Medium Neutral Citation: Haleluka v Coles Supermarkets Australia Pty Ltd [2011] NSWDC 47 Hearing dates: 16/6/11, 17/6/11 Decision date: 23 June 2011 Jurisdiction: Civil Before: Elkaim SC DCJ Decision: See paragraphs 56 and 57 Catchwords: Occupier's liability. Legislation Cited: Civil Liability Act 2002 Cases Cited: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 Category: Principal judgment Parties: Maria Haleluka (Plaintiff) Coles Supermarkets Australia Pty Ltd (Defendant) Representation: A Lidden SC and M Daley (Plaintiff) S Torrington (Defendant) Brydens Law Office (Plaintiff) Lander & Rogers (Defendant) File Number(s): 2010/00261191 Judgment 1The defendant operates supermarkets throughout Australia. One of them is in the Kellyville Plaza. On 19 August 2008 the plaintiff was shopping in this supermarket. She was squatting as she examined products 'on special' near ground level. She was struck by a "dairy flat top trolley" laden with boxes. The plaintiff was injured. She seeks damages arising from her injuries. 2The defendant denied liability and alleged contributory negligence. There was little basis for either stance. One only has to look at the defendant's incident report and investigation (Exhibit B) to see that there is little dispute about the facts. 3The plaintiff alleges that she injured her right hip and low back. She seeks damages under the following heads: non-economic loss, past and future economic loss, past and future domestic care and medical expenses. The defendant disputed the extent of the plaintiff's injuries and the size of the damages that she sought. 4The action is governed by the Civil Liability Act 2002 (the "CLA"). The plaintiff's background 5The plaintiff is 51 years of age. She left school in 1975 armed with the School Certificate. She tried various employments but soon began her training to be a registered nurse. She achieved this position in 1980. 6The plaintiff then pursued a number of different jobs but generally all were associated with nursing. For example she worked in a high level care spinal unit called Ferguson Lodge, she had some time at a weight reduction centre followed by the Prison Nursing Service and she worked in aged care at the White Court Private Hospital. She also worked for pharmaceutical companies and on one occasion for a film company as the nurse on set. The production company provided her with a glowing reference (Exhibit A). 7The plaintiff also enrolled in various courses, some of which she did not complete. She did complete a Bachelor of Health Science at the University of New England. 8The plaintiff was first married in 1986. This relationship, which produced no children, ended in December 2002. In January 2005 the plaintiff married for the second time. Again there were no children despite entry into an IVF programme. At one stage the plaintiff and her current husband tried to adopt a child. This endeavour was put on hold when the plaintiff was diagnosed with breast cancer in January 2008. Following this diagnosis the plaintiff had breast surgery (a lumpectomy) and also radiation therapy. It is a mark of her fortitude that while recuperating from the surgery she completed her Bachelors degree. 9The plaintiff had low back pain in October 2006 and started to consult an osteopath. She said her back would tighten and might interfere with her activities for a short time. 10By about June 2008, following successful treatment for breast cancer, the plaintiff said she was feeling happy and looking forward to enjoying life. By August of 2008 the plaintiff was planning to return to work, initially on a part-time basis and then, if she was happy in her job, progressing to fulltime. 11The plaintiff and her husband lived, and remain, in a large two storey freestanding house. Besides four bedrooms and a multitude of bathrooms, there is a study, a family room and a billiards room. She took care of the inside; he looked after the outside. The accident 12As stated above, on 19 August 2008, the plaintiff was struck by a trolley being manoeuvred, obviously negligently, by an employee of the defendant. She was struck on the right side, in the hip area, and pushed over onto her left side. The plaintiff saw a general practitioner in the shopping centre later that day. After the accident 13The doctor referred the plaintiff for physiotherapy, which she had. She also returned to the osteopath she had earlier seen. The plaintiff described her right hip pain over the next few months as "dreadful" . The plaintiff also noticed problems in her low back although these do not affect her to the same extent. 14The plaintiff has continued to have treatment and seek medical advice. She has consulted doctors in relation to surgery. At present her right hip never feels normal. At best there is a low dull pain. At worst she has a heavy throbbing pain. The latter occurs three or four times a week. She takes pain relief to combat the increased discomfort. Certain activities, such as too much walking, or carrying a weight, aggravate her pain. 15The plaintiff's low back continues to be a problem although she said it seemed to be more uncomfortable when her right hip was also aggravated. There were times when her low back did not cause any discomfort. 16The plaintiff said that she found housework very difficult because of her hip. It was now done by her husband. Her mother also helped. In 2009 her husband had a work injury, which led to back surgery in March 2010. The workers compensation insurer paid for six to eight weeks of domestic assistance. 17The plaintiff's husband, Mr Peter Haleluka, is a cabinet maker. He is employed as such and also teaches at a TAFE. He currently leaves for work at about 3.30am to enable him to return at 1pm and carry out domestic activities. He has given up overtime and working on Saturdays for the same reason. He does most of the housework although the plaintiff is still involved in cooking and some aspects of washing and ironing. 18The plaintiff estimated that, on average, her husband took about seven hours per week to do the necessary tasks. This estimate affirmed my impression of her honesty. It was reasonable and far from the embellished estimates one often receives in cases of this nature. It was also not challenged although the plaintiff's capacity to do the work was questioned. 19The plaintiff's evidence about her capacity was corroborated by her husband. He said his wife " suffers for doing things ". He presented as a gentle giant. He spoke glowingly of his wife. When he met her she was " the nicest person I've ever met ". She was very positive especially after surmounting the hurdle of breast cancer. Since her accident the plaintiff had changed. She cried out against the " unfairness " of her predicament. 20Bedsides giving up working hours Mr Haleluka had also surrendered his very large waterbed. His wife found it very uncomfortable after her accident. They could not share a bed until the waterbed was replaced with a custom built (normal) bed able to cater for Mr Haleluka's almost 7 feet in height. 21In respect of the future the plaintiff said she would prefer to have paid care. This is a reasonable request considering the sacrifices Mr Haleluka makes to find time for the domestic activities. She estimated that her house would require some six hours per week. Her husband would then still need to do about two hours per week of domestic activity. The latter could not be compensable because of the thresholds under the CLA. 22A major development that has occurred since the accident is that in June 2009 the plaintiff and her husband became the long term foster carers for a 10 month old child called Isaac. They are hoping to adopt him. Isaac has some developmental abnormalities, such as a mild hearing loss, diminished muscle tone and delayed speech. He is also very active. At this stage it is anticipated that he will attend a special school. The plaintiff said that but for the accident she would have tailored any return to work around Isaac's needs, perhaps working one or two days a week and then increasing her hours when he went to school. 23Despite her problems Mr Haleluka said the plaintiff was totally devoted to Isaac. He was the couple's " No. 1 priority ". 24It was put to the plaintiff in cross-examination that she was capable of many of the lighter jobs that she had done in her past. For example, it was suggested she could work at the Red Cross, or in a medical clinic, or perhaps at a doctor's surgery. The plaintiff agreed but said she would be unreliable. She felt that if she had a job, for example, on a set day per week, there might be days when she could not attend because her hip was particularly bad on that day. 25The plaintiff graphically and, to my observation, sincerely described the upset that has flowed from her hip injury. The optimism that had blossomed after her recovery from breast cancer has been destroyed by the pain she suffers from her right hip. The plaintiff said that she "hates" what has happened to her. She said "this has just wrecked everything" . She said she "should be enjoying Isaac" . She puts on a subterfuge so that the child does not suffer and endeavours to do things despite the pain she endures. She was anxious that "Isaac doesn't suffer" because of her disability. 26By way of treatment the plaintiff sees a physiotherapist from time to time, but more often attends the osteopath. She takes a muscle relaxant that helps with severe spasm. She is reluctant to have cortisone injections but will undergo surgery if necessary. 27The plaintiff was shown DVD footage that had been exposed of her (Exhibit 1). The footage includes a good deal of time during which the plaintiff is carrying Isaac on her right hip. I asked her why she carried him on this hip rather than the left. She said it was because she was right handed and her right arm was stronger. This was consistent with an earlier answer in which she said that she used her arm to take the weight of Isaac. 28It was also put to the plaintiff that she was able to walk freely. This was not my observation of the footage. I thought there was a limp, in particular demonstrated by the extra raising of the plaintiff's right foot. The limp is not marked but I thought it was apparent. I also noticed that the plaintiff, when she bent down, did so making use of her knees rather than through flexion of her lumbar spine. 29The DVD tendered by the plaintiff (Exhibit C) clearly depicts the plaintiff rubbing her hip consistent with her evidence of pain in that location and the " catching " sensation she described. Liability 30The defendant made no submissions in respect of negligence or contributory negligence. This approach was soundly based on the evidence. The defendant did not, however, concede the issues. Its learned counsel said he had no instructions to do so. There can be little doubt that the employee pushing the large trolley should have taken care not to collide with a customer such as the plaintiff. 31The duty of care owed by an occupier to a legal entrant was plainly set out in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488. An occupier has a duty to a lawful entrant to "take reasonable care to avoid a foreseeable risk of injury to the person concerned" . This formulation is consistent with Section 5B of the CLA. Even if some distinction could be discerned from the section I am satisfied that the risk of harm to the plaintiff was foreseeable and the risk was not insignificant. I am further satisfied that a reasonable person in the defendant's position would have taken precautions against the risk. 32In relation to contributory negligence the plaintiff said that she had no warning of the approach of the trolley. There was no suggestion that it was anywhere near her before she bent down to examine the shelf. I can see no basis for any finding of contributory negligence. Damages 33Dr Edwards, for the defendant, in his report dated 12 November 2010 (Exhibit 2) stated that the plaintiff "appears genuine in her complaints" . Despite this he thought she was fit for her normal work duties and "for any activity she may wish to attempt" . I find a certain inconsistency in accepting the plaintiff as being genuine, which includes her telling the doctor that she is unable to do various things, followed by an opinion that she is able to do those things. 34Dr Edwards thought the plaintiff's back pain was an aggravation of pre-existing degenerative change. There does not seem much controversy about this finding. In relation to her hip Dr Edwards was "unclear" about the cause of the pain. The difficulty with Dr Edwards' opinion is that it ignores the basic fact that before being struck on the right hip the plaintiff had no problems with that area of her body. It is a matter of common logic that there would be a connection between the accident and the then beginning right hip pain. 35In case logic does not suffice Dr Deveridge (Exhibit E) had little doubt about the link between the accident and the plaintiff's ongoing condition. In his report dated 5 May 2011 he expressed his opinion in this way: "The clinical presentation and medical imaging indicates that there has been a derangement in the region of her right hip - a gluteal tendinosis and a cleavage tear of the labrum of the hip joint. This is consistent with the clinical presentation of "deep hip pain" stemming from the original injury. The mechanism of the injury described could well have resulted in post traumatic changes of the nature demonstrated." 36It is further worth noting that Dr Deveridge thought the plaintiff's condition was "chronic and stabilised" . He did not "anticipate any significant change in the foreseeable future" . He also was of the view that the plaintiff would have difficulty with the demanding tasks associated with nursing. 37The plaintiff was seen by a Dr Rowe, an orthopaedic surgeon, on behalf of the defendant. His report was not served. I draw an inference that Dr Rowe's opinion would not have assisted the defendant's case. 38Accepting the plaintiff as I do and preferring the opinion of Dr Deveridge to that of Dr Edwards, I am satisfied that as a result of the trolley striking the plaintiff she suffered injury to her right hip as well as an aggravation of pre-existing degenerative change in her low back. I am satisfied that her injury will continue to affect her for the remainder of her life, although there will no doubt be periods when the severity fluctuates. 39The depth of feeling expressed by the plaintiff about her condition emphasises the significance of the effect it has had upon her. The defendant submitted that non-economic loss should be in the order of 22% of a most extreme case. The plaintiff submitted that 33% was the right assessment. In my view the plaintiff's figure is closer to the mark and I assess non-economic loss at 30% of a most extreme case. This equates to $115,000 pursuant to Section 16 of the CLA. 40Past out of pocket expenses were agreed at $14,170.94. The defendant has paid $5,930.90 of the above sum. The parties agreed that the judgment sum should include the unpaid balance of $8,240.04. 41The plaintiff's claim for future medical treatment consisted of a general buffer of $20,000 plus a weekly amount of $80 for osteopathic or physiotherapy treatment. The plaintiff has certainly had both osteopathic care and physiotherapy but not on a weekly basis. There is no medical evidence to support a weekly allowance for the balance of her life. In addition to these types of treatment the plaintiff also takes some medication but I cannot see any basis for the general allowance of $20,000. In my view a global amount for all forms of treatment of $40,000 is reasonable. 42The defendant submitted that there should be no past economic loss. The plaintiff requested $300 per week from the date of accident to the present. The difficulty I have with the plaintiff's submission is two-fold: (a)The plaintiff was not working at the time of the accident and was contemplating a return on a part-time basis some time in the future, although probably the near future. (b)The plaintiff has devoted her time to Isaac since June 2009. Having regard to her evidence and that of her husband I have little doubt that had she been working when Isaac arrived that she would have given that work up to care for him. I understood this to be her evidence, or at least its effect, especially when she said that but for her injury she would have sought work when Isaac started school. 43Past economic loss can therefore not extend beyond 4 June 2009. Prior to this period the plaintiff certainly had an incapacity but it would only have been productive of limited economic loss because she was not working nor had even commenced seeking employment. I do accept that she would have sought and probably found employment although given it up in June 2009. In relation to this period I think a small buffer of $8,500 is appropriate. This is equivalent to a little over $200 per week. 44In respect of the future and for purposes of Section 13 of the CLA, I am satisfied that but for the accident the plaintiff would have returned to part-time work at the beginning of 2013 and then gradually built up her hours, perhaps over two or three years to fulltime work which she would have maintained to age 65. I am also satisfied that the vicissitudes should be slightly higher than normal, at say 20%, to take into account that the plaintiff's care for and devotion to Isaac, bearing in mind his developmental problems, may have increased the likelihood of her perhaps not reaching fulltime employment as soon as anticipated and there being periods when she did not work. The base rate for nurses of the plaintiff's experience seems to be in the order of about $1,000 per week net (Exhibit D). The plaintiff has submitted that she should receive half of this amount for the remainder of her working life, reflecting a 50% incapacity. 45The defendant suggested a buffer around the $30,000 mark. While I agree that 50% diminished capacity is about right I do not think it should be applied to a wage of $1,000. Firstly, for reasons I have set out above, I think the commencement of future economic loss should be delayed until 2013 and it should then reflect a graduated return to the work force. Taking these matters into account I will assess the plaintiff's future economic loss at an average of $300 per week for 13 years, deferred for 18 months and then reduced by 20% for vicissitudes. On the 5% tables the calculation is as follows: 300 x 502.3 x .929 x .8 = $111,992.80. 46The total amount I have awarded for economic loss is $120,492.80. The lost superannuation benefit on this amount, at 11%, is $13,254.20. 47Turning now to past domestic assistance, the applicable section in the CLA, is Section 15. It imposes a "six hour, six month" threshold. The defendant does not challenge the plaintiff's evidence that her husband provides about seven hours of care a week. It does, however, say that the threshold is nevertheless not met because the plaintiff has the capacity to do the work but does not do so because she is pessimistic about her ability and is also otherwise occupied by caring for Isaac. 48The plaintiff is certainly frustrated by her disability but that does not equate to pessimism about her capacity. I accept her evidence about her capabilities in relation to the various tasks of housework. I also accept her evidence about the number of hours performed by her husband and I accept his evidence concerning his observations of the plaintiff's ability to do the work. 49The plaintiff's claim is for 2.5 years. A more precise calculation is that there have been 148 weeks since the accident. This should be reduced by the eight weeks when Mr Haleluka's employer provided paid assistance. 140 weeks at the agreed rate of $23 per hour for seven hours a week produces a total of $22,540. 50The plaintiff's claim for future care is six hours per week for the remainder of her life expectancy. The defendant submitted that at best a small buffer should be allowed. 51The plaintiff has support from Dr Matalani for four to five hours per week (Exhibit E). The plaintiff's senior counsel said I should reject this assessment and prefer the evidence of the plaintiff that six hours was required. I enquired of counsel why he had tendered the report if he did not rely on its conclusions. The response was that I could accept parts of a report but not the whole of it. No attempt was made to tell me, in relation to the plaintiff's medical evidence, which parts I should accept and which I should not. 52A more sound basis for adjusting Dr Matalani's hours stems from his assessment being based on a four bedroom house with two bathrooms and a large yard. As seen above, the evidence was that the house is more extensive so that extra time would be needed in its cleaning. Against this approach, however, is Dr Matalani's inclusion in the tasks to be performed of "gardening, lawnmowing, external maintenance of the house such as cleaning gutters and heavy handyman's work" . 53I do accept, especially in a case where I have entirely accepted the plaintiff's evidence, that her opinion about the number of hours needed to clean her house is significant. However, I must also have regard to medical opinion concerning her capacity to carry out various tasks. Dr Matalani provides this opinion. It seems to me that balancing his opinion with his incorrect history of the size of the house, but on the other hand the inclusion of tasks the plaintiff would not do in any event, that a reasonable assessment for paid care in the future is five hours per week. This also takes into account the likely efficiency of paid cleaners. 54The plaintiff is now almost 51 years of age. Her life expectancy is a further 37 years. The only hourly rate of which there was evidence is $39.80 (Exhibit D). I will apply that rate. On the 5% tables the calculation is as follows: 893.6 x 39.8 x 5 = $177,826.40. 55A summary of the damages I have allowed is as follows: Non-economic loss $115,000.00 Out of pocket expenses $8,240.04 Future medical treatment $40,000.00 Past economic loss $8,500.00 Future economic loss $111,992.80 Lost superannuation benefits $13,254.20 Past care $22,540.00 Future care $177,826.40 Total $497,353.44 56Accordingly there will be judgment for the plaintiff in the sum of $497,353.44. 57Subject to any special costs orders, I order that the defendant pay the plaintiff's costs of the proceedings. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 June 2011