District Court New South Wales Medium Neutral Citation: Horsburgh v Coles Supermarkets Australia Pty Ltd [2016] NSWDC 344 Hearing dates: 9 and 10 November 2016 Date of orders: 21 November 2016 Decision date: 21 November 2016 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Judgment for the plaintiff for $99,417.50. (2) Defendant to pay the plaintiff's costs. (3) Liberty to apply in relation to costs. (4) Exhibits retained for 28 days. Catchwords: TORT – negligence – personal injury – plaintiff claims supermarket employee pushes a trolley into him, causing him to fall – whether accident occurred as alleged – credit issues – damages – application on first day of hearing to amend defence to plead a defence under s 50 Civil Liability Act 2002 (NSW) – application refused (Aon Insurance Ltd v Australia National University (2009) 239 CLR 175) – assessment of damages Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D, 5E, 5F, 5G, 5H, 5R, 5S and 50 Cases Cited: Aldi Foods Pty Ltd v Young [2016] NSWCA 109 Aon Insurance Ltd v Australia National University (2009) 239 CLR 175 Australian Safeways Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 Boral Bricks Pty Ltd v Cosmidis [2013] NSWCA 443 Coles Supermarkets Australia Pty Ltd v Haleluka [2012] NSWCA 343 Ferguson v McDonald's Australia Pty Ltd [2005] NSWCA 401 Gulic v O'Neil [2011] NSWCA 361 Jackson v Lithgow City Council [2008] NSWCA 312 Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Metaxoulis v McDonald's Australia Ltd [2015] NSWCA 95 Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116 Purkiss v Crittenden (1965) 114 CLR 164 Ridolfi v Hammond [2012] NSWCA 3 Seltsam v Ghaleb [2005] NSWCA 208 Thornton v Telegraph Media Group Ltd [2011] EHWC 1884 (QB) Tolhurst v Cleary Bros (Bombo) Pty Ltd and Anor [2008] NSWCA 181 Varga v Galea [2011] NSWCA 76 Whalan v Kogarah Municipal Council [2007] NSWCA 5 Category: Principal judgment Parties: Plaintiff: Gavin Horsburgh Defendant: Coles Supermarkets Australia Pty Ltd Representation: Counsel: Plaintiff: Ms M Campbell Defendant: Mr I Griscti Solicitors: Plaintiff: Brydens Law Office Defendant: McCabes Lawyers File Number(s): 2015/242684 Publication restriction: None Judgment Introduction 1. The plaintiff, by statement of claim filed on 19 August 2015, brings proceedings against the defendant, the occupier of the Coles Supermarket store at Ashfield, arising from injuries he suffered while shopping in the vegetable section of the store. The pleadings 1. The way in which the case was conducted by the defendant needs to be seen in context of the pleadings. The plaintiff's accident was described in the Statement of Claim as follows: "3. On or about the said date [5 July 2013] the plaintiff was present within the said store for the purpose of shopping. 4. Whilst the plaintiff was so present a pallet was being moved by a servant or agent of the defendant by use of a handheld forklift. 5. The plaintiff turned to continue with his shopping at the same time the pallet was moved into his path. 6. The said pallet collided with the plaintiff causing him to fall onto the pallet." 1. There then followed a list of particulars of negligence (set out at paragraph 8 below). 2. The defence responded to the facts and particulars set out in the statement of claim as follows: 1. The defendant admitted paragraphs 1 and 2 of the statement of claim concerning occupation. 2. At paragraph 2 of the defence it was noted that "the defendant does not admit paragraphs 3, 4, 5 and 6 of the statement of claim". These are the paragraphs set out above. 3. The defendant did not admit that the plaintiff had sustained personal injury or was entitled to the relief claimed (paragraphs 4 and 5), and at paragraphs 6 and 7 relied in general terms upon "the provisions of ss.5B-5H" and ss 5R and 5S Civil Liability Act 2002 (NSW). 1. The following particulars of contributory negligence were pleaded: 1. failing to take adequate care for his own safety; 2. failing to maintain any or any proper lookout; 3. failing to observe his surroundings; 4. failing to perceive and avoid an obvious risk (which is not admitted); 5. failing to proceed with care. 1. As can be seen from the structure of the defence, a non-admission was pleaded in relation to both the circumstances of the accident as set out in paragraph 36 and the particulars of negligence, with the additional pleading of contributory negligence by the plaintiff in those actions. 2. The particulars of negligence pleaded by the plaintiff similarly reflected the plaintiff's version of the accident: 1. Failure to take any or any adequate precautions for the plaintiff's safety; 2. Putting the plaintiff in a position of peril in the circumstances; 3. Operating the handheld forklift in close proximity to the plaintiff; 4. Failing to control or adequately control the handheld forklift; 5. Failing to stop, swerve or otherwise manoeuvre the handheld forklift so as to avoid the plaintiff; 6. Allowing the handheld forklift to collide with the plaintiff. 1. This was not how the case was conducted at trial. Instead, the defendants called a witness to say that the plaintiff's accident happened in an entirely different manner, and made no mention of any contributory negligence claim. The defendant also made a late application to amend the defence on other grounds, namely that the plaintiff was intoxicated at the time. I have addressed these issues at the end of the section of this judgment on liability. The injuries pleaded and particularised 1. In the second amended statement of particulars filed on 28 April 2016 the plaintiff sets out that he suffered injuries to his left shoulder, arm, leg, both knees and neck as well as shock. He has required surgery to his left shoulder and will require further surgery and a series of restrictions of movement of the left shoulder and neck are set out. The injury he suffered to both knees has since recovered. 2. The defendant does not admit that the plaintiff suffered injury (paragraph 4). 3. The plaintiff had retired before the accident and no claim for economic loss is brought. Apart from non-economic loss, he brings a claim for past and future medication and a modest claim for home care expenses. The plaintiff's evidence 1. The plaintiff, who was born in 1948, attended St Aloysius and then Christian Brothers St Kilda and thereafter worked for about 13 years as a jockey, a deck hand and then a seaman. 2. After his marriage, the plaintiff became an opal cutter and appraiser. After his divorce in 1999, he moved to Lightning Ridge, where he continued his trade as a cutter and polisher of opals until 2005, when he completed a computer course and a course of teaching English as a secondary language (TEFL) at the Australian Training Academy. He resided between Australia and Japan between 2006 and 2012, teaching English as a foreign language, before he retired in 2012. 3. During this time the plaintiff was a fit and healthy man, with many sporting interests. These included archery and he held a position in relation to the Victorian Archery Championships between 1991 and 1999. He was also a keen exponent of martial arts. He continued these sporting activities into retirement. This included attending a local club with a gym 5 days a week for 1½ hours, participating in martial arts activities. 4. At the time of the accident the plaintiff was living in a one bedroom flat by himself. The two adult children from his marriage resided in Queensland. The circumstances of the plaintiff's accident 1. The plaintiff attended Coles at approximately half past eight or twenty to nine on 5 July 2013 to purchase fruit and vegetables. He was in the fruit and vegetable section, looking for hot chillies, when he suffered the following accident. "Q. What happened? A. Okay. There was a pallet alongside - a pallet alongside me, I was standing there looking at the vegetables, there's a pallet laying there not moving. As I went to move, I stepped to the left and the manager, which I found that was, had put the forklift underneath the pallet, lifted it and pushed it into my feet, causing me to fall onto the pallet, then they helped me to my feet. HER HONOUR Q. Who's "they"? A. They were the - the assistant that was with the manager. Q. And the manager was the other person? A. Yeah, yeah, yes, yes. Q. Did you discover these people's names at some later stage? A. Yes, what happens, when I got up or they helped me up to my feet, the manager and the girl, the assistant, as soon as I went to one of the aisles, she followed me and she stopped me and said, "No, no, go and see him, he's the manager, Michael, to make a report." So I walked up, it was either aisle 1 or 2, that I'm not sure what aisle it was, so I was rubbing my knee as I was walking along, and then I approached him, he tried to avoid me at first, then I stopped him and we went to - we leant on a bin, a fruit - large fruit bin, and there he discussed the accident and made some particulars and wrote them down. Is that all you want?" (T 17-18) 1. The plaintiff described the employee's movement of the pallet as follows: "Q. Yes. When you first arrived in that section and you saw the pallet, was there anything on the pallet? A. No, there's nothing on it. Q. At that time did you see any staff near the pallet? A. No, no, there was no one near, no one near at all, no. Q. When you've turned and the pallet came into you, did you see someone using the pallet then? A. Yes, as I found out, it was the manager because he'd put the forklift into the - under the pallet and lifted it and pushed it into my feet. Q. Then when it hit into you, what did you do, what happened to your body? A. Well, I fell, put the left hand out to stop my fall, then my knees fell onto the pallet. Q. The person that was pushing the pallet, what did he do then? A. Well, he immediately came around, helped me to my feet with the other assistant, the, the girl. Q. Did you feel any pain? A. Yes, my knees were pretty sore, yeah. Q. Then you say you walked away. A. Yes. Q. Were you able to walk away properly? A. I was – I, I limped a bit because I was rubbing the knee and that's when the, the girl, the young girl, his assistant, stopped me and pointed out, that's Michael." (T 18) 1. It was put to the plaintiff that the accident occurred because he was not looking at where he was going, but at the young lady the employee with the pallet was looking at: "Q. I also want to suggest to you that at the time that you approached the area, there was a Coles employee near the pallet and also a female shopper. A. There was a female shopper. She's standing, I'll say an elderly woman in her 70s, of European, in a trench coat. That's right, and she saw the accident. Q. Well, in fact, I want to suggest that the female shopper was a younger woman probably in her mid-20s. A. No, this one was in her 70s, at least. About 5'6", 5'7". She was of European because she said to me, "You stay, you be careful," after the fall. Q. I want to suggest to you that in fact that you were, prior to the fall, you were standing between the pallet and the egg display and that you walked backwards and tripped over the pallet. A. I didn't trip over it at all. They put the crown underneath the forklift and forced it into my feet as I turned left to walk away. The pallet was stationary. There's no one around it." (T 31) 1. It is clear from both the plaintiff's version of events and from the defendant's version of events that there was a Coles employee near the pallet, as well as a female customer, although the age of both those persons is not agreed upon. It is also clear from both accounts that the plaintiff's fall, however it occurred, is alleged to have been seen by both these witnesses. 2. The plaintiff was asked if he had any other contact with the store or this gentleman and he replied: "A. Yes, about a week later I thought I'd better go and make - and make sure if a report was done, and there's a person that was leaning over putting groceries away, like, near the - not far from where the incident happened, he's leaning over, so I said to him, "You're Michael, aren't you? Did you put that report in?" He said, "Yes." Q. This is the following week when you went back to the store. A. Approximately a week, maybe eight days approximately, yeah. Q. And you saw him again. A. Yes, yeah." (T 18-19) 1. The plaintiff's description of how his injuries occurred is also relevant in terms of consistency of the plaintiff's account of the accident. The plaintiff's description of his injuries 1. The plaintiff was asked: "Q. When you went home that night, how were you feeling? A. Well, the, the - both knees were pretty sore, so I went to sleep, and in the morning I couldn't walk, and that's when I rang an ambulance and the ambulance came and picked me up at the house, or at the bus stop, I was waiting on the road at the bus stop, bus shelter, and he stopped there for a lengthy time, maybe 45 minutes, close to an hour, and then he drove me down to the - the medical clinic in Ashfield. Q. Was that your usual doctor? A. Yes, at that time it was, yes. Q. By that stage where was the pain? A. The pain had been - the neck and shoulder were playing up but the knee was sore, that's - like, I had to get the ambulance cause I couldn't walk. Q. Did you continue to see that doctor at Ashfield? A. Yes, she organised a - what's the name, what do you call it? Q. A scan? A. No. Yeah, a scan was done at the Ashfield centre there, X-rays were done and I also had massage to the shoulder and that was done by a - not a masseuse, the-- Q. Physio? A. Physio. Q. Did that help? Did you recover? A. Ultrasound and that was done on the neck and shoulder. Q. Did it help improve your-- A. A little bit but not that much. And I said "How long before this shoulder heals?" and she said "Normally they don't"." (T 19) 1. In cross-examination it was put to the plaintiff that he had described the accident to his doctor on the following day as follows: "Q. Do you recall telling that doctor what had happened to you on the previous day? A. Yes. Q. You told that doctor, didn't you, that you tripped on a pallet? A. Yes." (T 26) 1. The plaintiff was also asked about his description of the accident to Dr Zavattaro: "Q. You gave that doctor a history of what happened in the incident in Coles, didn't you? A. Yes. Q. You told Dr Zavattaro, didn't you, that you tripped over a pallet in Coles in Sydney in July in the previous year? A. Yes. Q. What I want to suggest to you is that what occurred in this incident is that you tripped over a stationary pallet that was present on a pallet jack in Coles? A. No, that's not correct at all. The pallet was stationary until they moved it into my feet. They put a crown forklift into and lifted it up and directed it into my feet as I turned to walk away. Q. It's the case, isn't it, that the first time you told a doctor that your fall was caused by a pallet being pushed against you was when you saw Dr Lee for the purpose of this court case? A. No, that's not correct. I did say that to him, but whether I actually said to Zavattaro that, I'm not sure what you're saying there, that's correct, but I might have said to him that it was pushed into my feet, or I did trip over the pallet that was pushed into my feet, yes." (T 26-27) 1. The plaintiff was also asked at T 31: "Q. If you say you didn't trip over it, why did you tell, for example, Dr Zavattaro that you tripped over the pallet? A. Well, I'm not sure I did say it to him. Q. I want to suggest to you that you took a couple of steps backwards with your back to the pallet and you tripped over the edge of the pallet because you were not looking at the direction that you were moving. A. I was watching what I was doing, all right and the pallet was stationary, I went to move away and I took a step but unfortunately he'd put a forklift underneath or into the pallet and lifted it up." The plaintiff's description of the store 1. The plaintiff was also challenged as to his description of where the accident occurred and the layout of the store. It was put to the plaintiff that the pallet was near the egg stand, which was at the rear of the section where the vegetable section was situated but he did not accept this: "Q. I suggest to you that that was situated closest to the stand where the eggs are contained, which is immediately to - if you're facing the vegetable section, it's immediately to the left of the vegetable section? A. No, I was looking at the vegetables. The pallet was about a foot away from my feet, stationary, not moving, until they put a forklift under it and lifted it up and directed it into my feet, causing me to fall." (T 28) 1. When showed a photograph he indicated the position where he said the pallet was located, which was not the position. The plaintiff said that the fruit was kept in bins in an area adjacent to the area shown in the photographs. This was later agreed to by Mr Vartuli (the "Michael" to whom the plaintiff spoke). The plaintiff's description of the store manager, "Michael" 1. The plaintiff was asked about his conversation with the person he called "Michael": "Q. Just getting back to Michael, was he, he was obviously a Coles employee. Was he of a similar age to you? A. No, no, he was younger. Gee, 20s? Maybe say 24, 20 - black hair, not that tall. Yeah, because when I approached him seven to eight days later, he was leaning over at the back there, putting something away, and I asked, asked him then, I said, "Did you put that report in?" And he very arrogantly said, "Yes, I did." He wasn't very happy about it. Q. Are you sure you didn't speak to someone from Coles at the time who was in their 60s? A. Not about 60s." (T 33) 1. The plaintiff repeated this evidence at T 33 line 45, when the following conversation was put to him: "Q. Do you recall being asked after the incident if you were all right, and you said, "Yes"? Do you recall that? A. I didn't say I was all right. How long after the incident? Is that the day of the, the day of the incident, is it? Q. Yes, just-- A. The day of the incident. Q. Just after you got up, after you-- A. Yeah, well, he said, "Are you all right?" Well, I walked away rubbing my knee. If that's about-- HER HONOUR Q. You're being asked if you remember a conversation with this gentleman-- A. No, no. Only he, he said, "Are you all right?" and just helped me to my feet. Well, I walked away, he didn't say anything more to me." (T 33-34) 1. In re-examination the plaintiff again marked the spot where the pallet was with an "X" (T 40). 2. In re-examination the plaintiff reiterated his account of the events in question. He said he had recognised Mr Vartuli as the "Michael" he had spoken to, both on the day of the accident and approximately 7 or 8 days later. He was asked if he had made a note of this person's name (T 74) and said that he had done so the next day and then passed that note on to his solicitors. That note was tendered and is in the following terms: "5 July, Friday 8.30 am Fell. Dr Zofia Perkowskr-Guse 6 July 240-242 Liverpool Road Ashfield, X-rays Monday 8 July. Michael, night manager took report. Again spoke to Michael to confirm 1/8/2013. Lack of care, didn't want to know. Staff followed and told me "Don't go" – arrogance on both occasions." 1. Mr Vartuli was called by the defendant to give evidence. The evidence of Mr Michael Vartuli 1. As seen in the witness box, Mr Michael Vartuli was a short man with dark grey hair who, while he did not look to be in his 60s, looked much older than a man of 24. He said he had been employed by Coles as an employee and then as a manager for 34 years and 11 months. He was the duty manager on the evening of 5 July 2013. 2. His evidence was as follows: "A. Yeah, well, that - that night I was talking to a girl and we were talking together about eggs, and the gentleman come past with his basket, he was - he went past me and he was sort of looking at the girl and went past the girl and then he missed the - the corner of the pallet, he slipped on the pallet and fell. I went to help him up and he was a bit embarrassed of the girl so I said, "Are you all right?" and he says, "Yeah," he started brushing himself off and he says, "Yeah, I'm all right," and that was - he picked his basket up and went. And I tried to go around the shop to try and find him to see - see what his name was and I couldn't find him." (T 53) 1. Mr Vartuli described how he put the pallet there himself with the pallet jack and then pulled the jack down so that the pallet would not move (T 54). 2. Once he had the pallet in position and was replenishing the eggs, he said that no-one, including himself, moved the pallet and that the pallet jack was connected to the pallet at all times and was down. He was asked about the lever as follows: "Q. What about the lever, where was that? A. Well, the lever, once you press it, it'll go down, then you've got to push it down to push - push the pallet up if you want to move the pallet." (T 54) 1. Mr Vartuli described the lady he was having the conversation with as follows: "Q. The lady you were having a conversation with, I take it that she was a customer? A. It's a customer, yes. Q. How did you come to be having a conversation with her? A. She - a lot of people come past me when I'm doing the eggs and they want to know why this is a low price and why that's a high price and why is it free range and why it's not free range and stuff like that. Q. Do you recall is that the sort of inquiry that happened on this occasion? A. Yes, about, about the eggs, we were talking about the eggs. Q. Whilst you were doing this task, was there any other employee in the area? A. Not that I noticed. There could have been - could have been the fruit and veg bloke going up and down but I never seen him around, you know. Q. The egg stand, if I can call it that, where is that located in the store? A. They're alongside the fruit and veg and there's - it's four module shelves." (T 54-55) 1. In cross-examination Mr Vartuli said he had been working at Coles for nearly 35 years. He had not received any training in relation to using the pallets because, as he said on three occasions on T 57, "You don't need pallet training". 2. He described the plaintiff's fall as follows: "Q. You've seen this gentleman fall. Can you describe how he fell? A. He fell, like - he bumped on the corner of the pallet, bumped along the corner of the pallet and feel straight down on his hands, down like that, and I helped him up. He got up and then I said, "Are you all right?" and he says, "Yeah," so brushed himself off and went. Q. He fell all the way to the floor? A. Yes. Q. On his hands? A. Yeah, the whole - the whole body went. Q. His whole body fell on the floor? A. Yes. Q. You were able to help him up all by yourself? A. No, he got up himself and I helped him up, you know, like, "Are you all right?" Q. He was able to get up by himself? A. Yeah, he got up by - he got up and I said, "Are you all right?" and he says, "Yes," and he brushed himself off and went. He picked up his basked and went." (T 64) 1. When Mr Vartuli said "Down like that" he put out his two hands in front of him to show the plaintiff falling straight down on his hands. 2. On this occasion Mr Vartuli had a second opportunity to describe his conversation with the plaintiff. His evidence on both occasions was that the only conversation he had with the plaintiff was "Are you alright?" 3. Mr Vartuli was asked (T 60, lines 30-32) whether the plaintiff came back to see him again: "Q. Now he actually came back about a week later to see you again, didn't he? A. No, I never seen him before. I seen him about four, four or five weeks after with a - with a - with a - with a basket doing his shopping. That's it." 1. In cross-examination Mr Vartuli was asked when he had first turned his mind to these events. He said that he had been asked to give a statement a few months before the hearing, namely about August 2016. If so, that means that he provided that statement after the defence had been filed, which may account for the inconsistency between the defence and the way that the case was conducted. It was never clear how or when the defendant came to know that the plaintiff had spoken to an employee named "Michael"; it might be because the plaintiff had provided answers to particulars in relation to the circumstances of the accident, or it may have been information he gave to a doctor. Whatever the reason, it is clear that no interview of Mr Vartuli took place until after the defence was filed. Reconciling the different versions of the accident 1. Counsel for the plaintiff submits, and I agree, that only one of the versions of this event can be accepted. 2. The plaintiff points to the following corroboration: 1. The account given by the plaintiff is the only way to explain how it is that he identified the person named: "Michael". According to Mr Vartuli's account of the conversation, the plaintiff merely said that he was all right and immediately left, not leaving his name, let alone asking Mr Vartuli's name. 2. While the note written by the plaintiff which is Exhibit N was clearly not prepared "the next day" as the plaintiff said, it was prepared shortly afterwards, and his account that he gave this note to his solicitors when he consulted them, is not challenged. That note not only records that he "fell" but also records the name "Michael" and his subsequent visit. That means that any allegation of reconstruction of evidence after consulting solicitors could not be established. 3. The plaintiff's reference to the female assistant who followed the plaintiff and encouraged him to make a report, was not challenged in cross-examination. The plaintiff asks the court to draw the inference that she did so as she knew the plaintiff had been injured as a result of Mr Vartuli's conduct. Mr Vartuli admitted there were several employees of Indian heritage in the store at the time (T 60). 4. Mr Vartuli agreed there were fruit bins in the area stated by the transcript (T 66), although repeating that there were no fruits in the egg section, where he said the pallet was. This meant that the plaintiff's description of the fruit bins (which was inconsistent with the photographs taken by the defendant) was correct at the time of the accident, which occurred before the current layout of the store as shown in the photographs. 5. The dramatic circumstances of the plaintiff's accident as described by Mr Vartuli must have resulted in some form of report, whether Mr Vartuli was able to obtain the plaintiff's name or not. Ms Campbell submits, and I agree, that a person like Mr Vartuli who had been a manager and a store employee for a period of decades, was familiar with the procedure for reporting injuries and knew he should have taken a proper report and included in that the name of the alleged witness, namely the lady who was talking to him about free range eggs. I also accept Ms Campbell's submission that logic would dictate that if a customer suffered a fall in which the customer was in fact asserted to be a responsible, the defendant would be particularly keen to have a record of the incident and of any witnesses, should that person attempt to sue the store. 6. The description of the accident by Mr Vartuli shows the plaintiff falling on his hands, not his knees. That is inconsistent with the plaintiff's description of the accident and of his injuries to his knees. There is no evidence of injuries to his hands. Inconsistencies in the plaintiff's account 1. However, there are inconsistencies in the plaintiff's account. First, he described the person he was in contact with on the two occasions as a much younger man "maybe say 24, 20 years of age" (T 33). He was asked whether he remembered talking to a man in his sixties and said: "I don't remember talking to a man in his sixties, the man wasn't in his sixties, no." (T 33) 1. In his evidence in reply, the plaintiff accepted that this was wrong and that Mr Vartuli was in fact the person he spoke with on the day (T 74) as well as seven to eight days later (T 74). It was in this context that he provided the note that he prepared in which he stated: "Q. Did you make a note of this person's name? A. Yes, I-- Q. When did you make that note? A. I made it the next day because when - when the accident happened and there was a girl with him, they both helped me to my feet except he went off with the pallet and she followed me into either aisle 1 or 2 and she said that's Michael, the manager. Q. You say the next day you made a note? A. I wrote down myself, yes. Q. What did you do with that note? A. I think that could be that - one of those notes there after I saw Dr Zofia-- DOCUMENT SHOWN TO WITNESS Q. Is that the note you're talking about? A. Yes, that's about it, yes, yes. Q. At some point did you give that note to somebody? A. No, no, no, not to anyone, no. Q. Did you pass it on to your solicitors? A. This note I must've, yeah." 1. This evidence was also incorrect. He agreed in cross-examination that in fact he wrote it about a month later (T 81). He was cross-examined about this as follows: "Q. You accept that, don't you, that you wrote that note-- A. A couple of weeks later. Q. At least four weeks later? A. Yeah, four weeks later. Q. That's right, isn't it? A. Three weeks later, yep. Q. On the first - either on 1 August or after 1 August. A. That's right, yes, yep. Q. Was that a note that you wrote at the request of your solicitors? A. No, I suppose I was trying to recollect what happened and you're keeping track of talking to the person, which is Michael, and seeing what would happen afterwards whether you might be asked again in the future. Q. It's the case, isn't it, Mr Horsburgh, that you've given evidence here on oath stating that you wrote that note on the day after the fall, but, in fact, you didn't write that note on the day after the fall? A. I made a mistake with the date. Q. You made a mistake. You've also given evidence that Michael, the Coles supervisor, was a gentleman in his twenties, maybe 24, and it transpires that he's - you were also mistaken about that, weren't you? A. Age, yes, but I did describe him as short and black hair. Q. So they were two things that occurred in relation to the fall that you must accept now that you were mistaken about, weren't you? A. I'm mistaken about a date that I put down, yes, three weeks later, or close to four. Q. You were mistaken about the date you wrote the note and you were mistaken about Michael's appearance because you said he was a younger man? A. I did say younger, yes. I made that mistake there, but not by height and black hair, no. Q. I want to suggest to you that you don't actually have a very good recollection of this incident at all? A. I've got a very good recollection of it." 1. Mr Griscti put to the plaintiff: "Q. If you knew what happened, you wouldn't be wrong about when you wrote the note. I want to suggest that to you? A. Well, I made a mistake with the date here, but I didn't make a mistake about Michael. I recognised him as soon as he walked in and that he's short with black hair, but I did make a mistake about the age. Q. You recognised him, but this morning you gave evidence to my direct questioning, when I asked you about his age and his appearance, and you said he was as young man, maybe 24. A. I made a mistake about the age, yes." 1. The third reason why the defendant submitted the evidence of Mr Vartuli should be preferred is that the histories recorded by the health professionals consulted by the plaintiff refer to "trip and fall" (in the case of the ambulance report the next day) and "patient had a fall at the supermarket Coles last night, tripped on the pallet". 2. The plaintiff was referred to Dr Zavattaro in Queensland who noted a history of: "He tripped over a pallet at Coles in Sydney in July last year." 1. The first time that a medical practitioner records a different version of the accident is the medico-legal report of Dr Lee of 27 January 2016 which records: "Mr Horsburgh was injured on 5 July 2013 when he fell down in a supermarket. He was in the fruit section and there were some pallets being pushed by a worker there. It pushed against his left leg causing him to fall forward with his left hand out. He felt dizzy at that time and he got up and wrote an incident report. There was no severe pain at that time. The left knee was noted to be swollen. He saw the doctor and an X-ray was done…" 1. Dr Smith, who saw the plaintiff on behalf of the defendant, noted the following history: "He was shopping in Ashfield in the fruit and vegetable section and one of the Coles workers was operating a crown lift with an empty pallet. He was struck by this and knocked down. A female employee enquired after his welfare. He asked to see the supervisor whose name was Michael who came to see him and reported it and then he caught the bus home. He saw a doctor the following morning whose name he is not able to recall…" 1. Dr Smith's report of 24 June 2016 states: "He states that he was shopping in the fruit section standing adjacent to an empty pallet. He states that he was unaware that a Coles worker had lifted the pallet with a manual pallet jack. As he turned to his left he fell onto the empty pallet, striking his knee. He put his left hand out. His left arm was jarred. He recalls that he experienced early pain in both knees, which settled within a few weeks. He experienced ongoing pain in his neck and left shoulder. He recalls that he attended a doctor in Liverpool Road in Ashfield. He was sent for X-rays but he is uncertain of the results…" Conclusions concerning the circumstances of the accident 1. In resolving which of these competing accounts I should accept, I have taken into account the following: 1. My findings as to the credit of the plaintiff and Mr Vartuli. 2. Observations by the New South Wales Court of Appeal as to the manner in which treating doctors' reports should be interpreted. 3. Contemporaneous records (or the lack thereof) such as the note the plaintiff made to give to his solicitor and the failure of the defendant to keep any records in relation to the plaintiff's accident. 1. Contemporaneous documents are important tools in determining credibility. In Whalan v Kogarah Municipal Council [2007] NSWCA 5 at [41] the Court of Appeal stated: "To disbelieve a party (or any witness for that matter) who swears his or her oath is a serious finding and not to be undertaken lightly without good and sufficient reasons." 1. That is particularly the case here, where the defendant's inference is that, for the plaintiff to have changed his story as to how the accident occurred, the legal advice he received must have played some part. That is a serious allegation to make and requires more than mere surmise. 2. As to credit, I note the observations by Tugendhat J in Thornton v Telegraph Media Group Ltd [2011] EHWC 1884 (QB) at [73]-[74] as follows: "73. There is great assistance to be obtained from extra-judicial writing of Lord Bingham in a chapter headed "The Judge as Juror: The Judicial Determination of Factual Issues" ("The Business of Judging", Oxford 2000, pages 3ff; Current Legal Problems, vol 38 Stevens & Sons Ltd 1985 page 1–27). Lord Bingham cited Sir Richard Eggleston QC Evidence, Proof and Probability (1978), 155 who set out the main tests to be used by a judge to determine whether a witness is lying or not. (1) the consistency of the witness's evidence with what is agreed, or clearly shown by other evidence, to have occurred; (2) the internal consistency of the witness's evidence; (3) consistency with what the witness has said or deposed on other occasions; (4) the credit of the witness in relation to matters not germane to the litigation; (5) the demeanour of the witness. 74. Lord Bingham then added these observations: "In choosing between witnesses on the basis of probability, a judge must of course bear in mind that the improbable account may nonetheless be the true one. The improbable is, by definition, as I think Lord Devlin once observed, that which may happen, and obvious injustice could result if a story told in evidence were too readily rejected simply because it was bizarre, surprising or unprecedented.… … so long as there is any realistic chance of a witness being honestly mistaken rather than deliberately dishonest a judge will no doubt hold him to be so, not so much out of charity as out of a cautious reluctance to brand anyone a liar (and perjurer) unless he is plainly shown to be such."" 1. In Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [35], Heydon JA states: "It is common enough in litigation for witnesses with a truthful story to succumb to the temptation of gilding the lily or over-egging the pudding. The test for the trier of fact is to separate the truthful parts from the rest." 1. The plaintiff repeated his evidence of the circumstances of the accident several times in the course of his evidence. He never contradicted himself or was caught out in a lie. He made mistakes as to some features such as Michael's age and when he had written the note for his solicitor, but his evidence was otherwise consistent and believable. 2. Some of the medical reports do, however, refer to tripping. I next consider how these accounts of the accident should be considered. The medical reports 1. In Ferguson v McDonald's Australia Pty Ltd [2005] NSWCA 401 at [81] Tobias JA stated: "His Honour's finding that after the first accident he returned to work doing lighter duties and his further finding that the appellant had not given a correct history to either Dr Ellis or Dr Bodel "in the first attempt" (whatever that might mean) is, to say the least, a rather thin reed upon which to base a finding that the appellant's back was no worse after the second accident than it was before. Furthermore, the so-called incorrect history assumes that Dr Bodel recorded the history given to him by the appellant correctly in the first place. As Mason P, with whom Beazley JA and myself agreed, observed in Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]: "Experience teaches that busy doctors sometimes misunderstand or misrecord history of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury." The primary judge himself seems to acknowledge this possibility when he says: "Dr Bodel was given an incorrect history or rather Dr Bodel recorded an incorrect history..." (emphasis added)" 1. In Gulic v O'Neil [2011] NSWCA 361 at [24] the Court of Appeal repeated: "…In undertaking this task, however, I bear in mind that it is necessary to exercise a degree of caution in relation to placing reliance upon histories taken by medical practitioners. The need for caution in this area has been stated by this Court on a number of occasions: Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]; Mason v Demasi [2009] NSWCA 227 at [2]; Container Terminals Australia v Huseyin [2008] NSWCA 320 at [8]; Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366 at [56]; Mastronardi v State of New South Wales [2009] NSWCA 270 at [87]; Hill v Richards [2011] NSWCA 291 at [23]." 1. Particular care is necessary with ambulance notes. In Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366 ambulance notes, which were later copied by the triage nurse, contained an account of events inconsistent with that of the plaintiff concerning how the accident occurred. The Court of Appeal stated at [55]-[57]: "55. It is these records that are said by the Trial Judge to be inconsistent with the version of events given by the appellant. The appellant, in evidence, denies giving the ambulance officers or the triage nurse any such version. The ambulance officers and/or triage nurse were not called. It would not be unusual, in circumstances where the person was brought into hospital by ambulance, for the triage form to reflect the notes from the ambulance officers. 56. Even if the triage nurse's notes were made from a conversation with the appellant it is likely that a treating practitioner would be concentrating on the injury and its treatment rather than the circumstances giving rise to it. In Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 Mason P said: "[35] Experience teaches that busy doctors sometimes misunderstand or misrecord histories of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury. It is possible, and not merely speculatively so, that Dr Middleton misunderstood the precise mechanics of the immediate antecedent of the fall." 57. In this instance, it is more likely that those responsible for the trauma department, and in particular the triage nurse, took the history from the notes of the ambulance. This is normal practice given that a significant number of trauma patients arrive in a state in which they are unable to give their own history." 1. Notes taken by general practitioners and ambulance officers are notorious for being hastily prepared and limited. It is for these reasons that the Court of Appeal has warned of the need for caution when interpreting these records. 2. In the present case, all of the medico-legal reports set out the same version of the accident, namely that set out in the statement of claim. The difference between these records and those of the plaintiff's treating doctors is that these doctors are focused upon the legal as well as the medical aspects of the case and, accordingly, must take a careful history of what is alleged. 3. I note the plaintiff agreed in cross-examination that he had made statements to this effect to his doctors. However, at all times he adhered to the accident having occurred the way he said it did. The most likely explanation for these inconsistencies is that not only the medical practitioners but the plaintiff were preoccupied with the plaintiff's personal injuries rather than their cause, and that the medical practitioners noted only that he had tripped and fallen in the supermarket, this being such a common reason for consultation about injuries of this kind. 4. Accordingly, I consider that the manner of recording the plaintiff's mechanism of injury is of little assistance to the defendant in arguing that the accident occurred in the manner described, particularly given my findings concerning the contemporaneous records and the credibility of the witnesses as set out below. The presence – or absence – of contemporaneous records kept by the defendant 1. Slipping accidents in supermarkets represent a well-known risk and supermarkets have many systems in place to deal with it, including regular inspections of places of danger, carefully maintained systems of work for cleaners and special forms for completion by staff to report any accidents or incidents involving members of the public. This also includes training for staff in relation to dangerous equipment such as pallet jacks. The dangers of pallet jacks underneath pallets to customers attempting to make their way along the aisles of a store are well known: see Aldi Foods Pty Ltd v Young [2016] NSWCA 109. 2. In Aldi Foods Pty Ltd v Young, both the incident report and the CCTV were available and were tendered. In these proceedings, the plaintiff has given evidence that he provided information to "Michael" for this purpose and he went back about eight days later to confirm that there was a report. Mr Vartuli says he saw the plaintiff fall full-length onto the floor. 3. Where are the store's documents concerning this fall? This brings me to the question of the inferences (if any) that I should draw from the absence of any such documentation in circumstances where: 1. It is clear from Exhibit N, the plaintiff's contemporaneous note, that he spoke to a person called "Michael Night Manager" who "took report"; 2. Although inadequately addressed (in that they were sent to the supermarket's street address), solicitors acting on behalf of the plaintiff wrote to the manager of Coles Supermarket on 17 April and 28 May 2014 asking for CCTV reports and there was no reply; 3. Subpoenae to the defendant for production of these records has resulted in nil production: see Exhibits K and L. 1. As I have noted above, the plaintiff's accident was a significant and dramatic one, in that he fell full length to the floor. I accept the submissions of counsel for the plaintiff that the defendant's failure to produce any records at all in relation to the accident are telling, and that this absence is supportive of the version of events being given by the plaintiff. The credit of the witnesses 1. The plaintiff is a 68 year old man of limited education. His evidence was unchallenged in every other respect. This was not a plaintiff who exaggerated his injury or ongoing disabilities or "over-egging the pudding", to use the words of Heydon JA in Makita (Australia) Pty Ltd v Sprowles at [35]. 2. Additionally, if he had in fact tripped over the pallet jack protruding into the aisle, that itself may have been evidence of negligence, for the reasons explained by the Court of Appeal in Aldi Foods Pty Ltd v Young. Pallet jacks are low to the ground and the ability of the prongs to protrude at a low level means that they can be a trip hazard. Mr Vartuli acknowledged as much when he stated that the store policy was now not to use them when customers are in the store (T 63 line 25). 3. The plaintiff consistently gave the same description of the circumstances of the accident. He repeated those same versions when confronted with the differing versions of these events in the doctors' notes. I am satisfied that the errors in his evidence as to Mr Vartuli's description and as to when he wrote the contemporaneous notes do not undermine the accuracy of the account he gave in his evidence. 4. By comparison, Mr Vartuli's evidence was only sought in August at the earliest. He made no contemporaneous notes of these events, according to his evidence. The inconsistencies in his evidence as to whether he actually made a note, or telephoned the manager, or both, were unconvincing. I am satisfied that his evidence is, at best, a reconstruction and designed to put himself in a good light in circumstances where he failed to keep a record of this incident because he knew of his own responsibility. In that regard, the plaintiff's note of the "lack of care" and "didn't want to know" and "arrogance on both occasions" in relation to Mr Vartuli are telling. However, the most valuable piece of information is the plaintiff's knowledge of Mr Vartuli's own name, which could only have been obtained if the version of events given by plaintiff is accepted. 5. Accordingly, I am satisfied that the accident occurred as the plaintiff stated. This brings me to the issue of liability and to the Civil Liability Act 2002 (NSW) generally. Civil Liability Act 2002 (NSW) 1. Section 5B Civil Liability Act provides: "5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm." 1. Section 5C Civil Liability Act provides: "5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk." 1. The duty of care owed by the defendant to the plaintiff is agreed by the parties to be that it owed a duty to take reasonable care to safeguard visitors to its premises against risks of harm that were foreseeable and not insignificant: Australian Safeways Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488. 2. The defendant's submission is that on the version of events provided by Mr Vartuli, there has been no breach of duty in that it was not alleged that the presence of the pallet of itself on the shop floor was negligent, nor was there an allegation of failure to warn. If Mr Vartuli's evidence is accepted, the cause of the fall is the plaintiff's inadvertence in not looking where he was walking. 3. As I have not accepted Mr Vartuli's evidence, I shall not deal with this submission further, other than by noting that if I had accepted it, the fact remains that seeing the pallet and seeing the pallet jack protruding underneath it are not the same thing. 4. The defendant's submissions do not address what my findings should be in the event that I accept the plaintiff's version. The closest counsel for the defendant comes is to note that on his own version of events, the plaintiff saw the pallet jack on the ground when he was in its vicinity prior to the accident (T 28). 5. As I have accepted the plaintiff's evidence that the pallet was pushed into him without any prior warning, the issue of liability becomes straightforward. 6. The plaintiff submits that the risk of harm was that a customer could be injured if a moving pallet collided with that customer, that such risk of harm was foreseeable and not insignificant, and that the defendant was clearly on notice of the risk which is demonstrated by Exhibit D (the manual for the pallet jack) which includes as one of the safety points: "Ensure your feet and other people's feet are clear of the pallet when manoeuvring or lowering the pallet jack." 1. The plaintiff also submits that a reasonable person in the defendant's position would have taken the precautions against the risk and also that a reasonable person would have ensured that staff members such as Mr Vartuli were trained and kept up to date with store safety policies. 2. No issue of obvious risk arises on the plaintiff's version of events. However, even on the defendant's version of events, the nature of the pallet jack and pallet are not an obvious risk in any event. 3. Counsel for the plaintiff has provided me with written submissions on the issues of contributory negligence and obvious risk. These issues were not addressed by counsel for the defendant, who appeared to have abandoned the issue of contributory negligence as well as obvious risk. 4. In the event that counsel for the defendant's failure to refer in his submissions to contributory negligence and obvious risk was an oversight, I formally note that I am satisfied that both the presence of the pallet jack and the likelihood of movement were not foreseeable for the plaintiff and no question of obvious risk arises (I note that this is not pleaded as a "warning" case). Similarly, no question of contributory negligence arises. 5. The defendant also submits (written submissions, paragraphs 28-32) that the plaintiff's claim fails on causation issues because the reason for his fall was his failure to look where he was walking in that he knew of the presence of the pallet before he fell. Conformably with my findings of fact as set out above, this submission similarly failed. Application by the defendant to amend the defence 1. On the first day of the hearing Mr Griscti brought an application to amend the defence to plead a defence under s 50(1) Civil Liability Act 2002 (NSW). The amended defence (MFI-1) included an additional paragraph 9 which states: "The defendant says that the plaintiff was, at the time of the act or omission as allegedly giving [sic] rise to the injury or damage, intoxicated by virtue of his recent consumption of alcohol to the extent that the plaintiff's capacity to exercise reasonable skill and care was impaired pursuant to s.50(1) Civil Liability Act 2002. The defendant relies on s 50(2) Civil Liability Act to say that the Court cannot award damages to the plaintiff." 1. Mr Griscti submitted that the plaintiff was on notice of this proposal because on 23 August 2016 the solicitors for the defendant wrote to the plaintiff to advise: "Kindly note that at the hearing of this matter the defendant will seek leave of the Court to amend its defence to plead as follows: "The defendant says that the plaintiff was, at the time of the act or omission as allegedly giving [sic] rise to the injury or damage, intoxicated by virtue of his recent consumption of alcohol to the extent that the plaintiff's capacity to exercise reasonable skill and care was impaired pursuant to s 50(1) Civil Liability Act 2002. The defendant relies on s 50(2) Civil Liability Act to say that the Court cannot award damages to the plaintiff." The defendant will lead evidence of the plaintiff's intoxication." 1. Mr Griscti submitted that this early notice meant that it was not necessary to refer to Aon Insurance Ltd v Australia National University (2009) 239 CLR 175 (T 8). His submission was that it was consistent with the "just, quick and cheap" for amendments of this kind to be brought in this manner (T 10). 2. The evidence to be relied upon was asserted to be "evidence from a witness that was present" who observed the plaintiff's conduct and smelled alcohol. It was unclear how long that evidence had been in the possession of the defendant. Mr Griscti also informed me that there was a notation by the ambulance officer who saw the plaintiff the next day, and who wrote "? alcohol consumption" in the ambulance notes. That document was not tendered on the application, or indeed in the proceedings, and the context in which it is asserted to have been put in is unclear. 3. At the time that I was called upon to make the ruling I did not have the benefit of other evidence in these proceedings. That is one of the reasons why applications of this kind, if made on the day of the hearing, put the trial judge in a very difficult position. It goes without saying that such a late application also puts the plaintiff in a difficult position. 4. Mr Griscti declined to refer to the principles discussed in Aon Insurance Ltd v Australia National University, telling me that it was "neither the time nor the place for lengthy discussion" of these principles (T10). 5. In Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116 at [45] Young AJA stated: "45. Judges should do their best to see that there is as little ambush as possible, and that people are up-front with what the real point is that the Judge needs to decide. If need be the Judge should actually ask the defendant at the commencement of the proceedings what are his or her defences, and if the plaintiff bona fide says that he or she is surprised, it may be preferable to adjourn the matter at that stage. 46. The culture has changed in the Supreme Court. The culture has changed in England, and it would seem, from judgments such as Boyes v Colins [2000] WASCA 344; (2000) 23 WAR 123 and White v Overland [2001] FCA 1333 in other places in Australia. It should also change in the District Court." 1. The witness who would recall, in 2016, that the plaintiff smelled of alcohol four years earlier was not identified for the purpose of the application. As for "the musing or a rumination on the part of the ambulance officer" (Jackson v Lithgow City Council [2008] NSWCA 312 at [39]), I note the observations of the Court of Appeal in Jackson v Lithgow City Council and in the other decisions set out above concerning the dangers of reading too much into the reports of busy health practitioners in general and ambulance officers in particular. 2. Although not forming part of my decision on this issue (because they occurred later), I note other examples of conduct by the defendant which I consider may also fall into the "ambush" category. These are the conducting of these proceedings on a different basis to the defence pleaded (in that the particulars of negligence were not admitted and a defence of contributory negligence asserted) and Mr Griscti's refusal to provide his opponent or the Court with a schedule of damages on the basis that his client contested liability and, even if successful, the plaintiff should not be awarded anything. The Green Sheet provided to practitioners requires compliance by both parties, not least because, even if the defendant is successful, the trial judge is still required to address issues of damages for the benefit of appellate court consideration. Damages 1. The plaintiff pleads the following particulars of injuries: 1. Injury to left shoulder; 2. Injury to left arm; 3. Injury to left leg; 4. Injury to both knees; 5. Injury to neck; 6. Shock. 1. The plaintiff pleads the following particulars of disabilities: 1. Pain and restricted movement of left shoulder; 2. Pain and restricted movement of neck; 3. Pain and restricted movement of both knees (recovered); 4. Requirement to undergo cortisone injections in the left shoulder and neck; 5. Requirement to undergo surgery to the left shoulder (now performed); 6. Difficulties lifting the left shoulder above shoulder height; 7. Difficulties pulling, pushing and lifting weight with the left arm; 8. Disturbed sleep; 9. Requirement to take pain medication; 10. Difficulties driving a motor vehicle; 11. Inability to drive a motor vehicle for a period; 12. Interference with pre-accident pursuits and activities; 13. Interference with pre-accident domestic duties; 14. Requirement to undergo physiotherapy; 15. Requirement to undergo further surgery to the left shoulder. 1. I shall first deal with the issue of causation in relation to damages. The defendant asserts that the onus lies on the plaintiff under s 5E Civil Liability Act 2002 (NSW). I prefer to note that while the burden of establishing whether the extent of the injury arose from the defendant's negligence lies on the plaintiff (Purkiss v Crittenden (1965) 114 CLR 164 at 168, per Barwick CJ, Kitto and Taylor JJ), unravelling the skein of causation in relation to the injury and disabilities is a task for the defendant (Tolhurst v Cleary Bros (Bombo) Pty Ltd and Anor [2008] NSWCA 181 at [118]). 2. The defendant submits that there is an issue as to the extent of the plaintiff's ongoing symptoms as to how much is attributable to the fall, as opposed to degenerative changes. This is particularly the case in relation to a tear to his left shoulder tendon which occurred some time after the accident, in circumstances where the relationship between the injury and the tear is not immediately apparent. 3. All of the medical evidence shows that, while the plaintiff had suffered degenerative changes appropriate or even in excess of those suffered by person in his age group, these were asymptomatic until the accident. This appears to have been because the plaintiff led a healthy life of exercise and has no prior history of surgery, injuries or illnesses of any kind. In particular, he was physically fit, attending the gym five days a week and participating in archery. 4. The plaintiff underwent an arthroscopy to the left shoulder in August 2015, but an MRI scan in August 2016 indicated a tear of the anterior supraspinatus tendon of the left shoulder. This raises the likelihood of further shoulder surgery. 5. Dr Smith's report of 24 June 2016 states: "There would be no symptoms present now that are the result of the accident on 5 July 2013. This would have ceased causing symptoms after 2 or 3 months at the most. He has conceivably, never had symptoms from the degenerative process in the neck and low back prior to that date. Once these two degenerative conditions are rendered symptomatic, he is going to have symptoms from time to time with various activities on his part such as trying to punch a bag, which he can no longer do, and any overhead work that is repetitive, heavy or continuous." 1. Dr Smith considers the diagnosis is an aggravation to cervical degenerative disease which is fairly extensive and an aggravation to an osteoarthritic condition which has yet to be treated. He goes on to state (p.6) that the plaintiff is "manufacturing physical signs" in that the weakness he exhibits in his left arm is "unphysiological". 2. The defendant also relies upon a report from Dr Home which notes that at the time the plaintiff underwent an arthroscopy to the left shoulder in August 2015, his rotator cuff was found to be intact (report at p.6). However, in his supplementary report of 7 November 2016 Dr Home notes that the supraspinatus tear is complete in nature and concludes: "Therefore, from my view of this further information, Mr Horsburgh has gone on to develop a further tear within the anterior supraspinatus tendon. On that basis, as the new tear was not identified on the previous MRI scans or at arthroscopy, that tear arises from some other cause. The cause is likely to be progress of degeneration within the rotator cuff, noting the plaintiff's age of 68." 1. Dr Home goes on to note that the treatment proposed by Dr Lee for surgery is reasonable, although if the current level of functional disability is mild, then the benefits of surgery could be outweighed by the risks having regard to his age. 2. Dr Lee answered this report as follows: "Your request for an additional supplementary report was received. I have gone through Dr Home's report in detail. Dr Home noted that in the previous MRI report and during the arthroscopic surgery, there was no tear of the rotator cuff. His opinion was: "The cause (of the rotator cuff) is likely to be progress of degeneration within the rotator cuff, noting the patient's age of 68." I interpret the implication of this statement is the rotator cuff tear is degenerative in nature and has little to do with the injury. On face value, this seems logical but looking at the whole picture, one would have to draw a different conclusion. Mr Horsburgh is 68 years old. He was very active in his younger days. He used to be a merchant seaman and also worked in the opal mine for eight years. He also did boxing when he was young. After 67 years of active life, his rotator cuff remained intact as observed at the time of arthroscopy. With no intervening injury, why would he have developed a tear at this stage of life? From the MRI description, judging from the size of the tear and there was superior migration of the humeral head, the tear would be quite chronic, occurring some time before the scan was taken and probably not long after the arthroscopy. I have to conclude that the rotator cuff tear, although degenerative in nature, was the result of weakening of the tendon from the fall and/or surgery. If not for the fall, the rotator cuff would not have ruptured at this stage of life." (Emphasis added by Dr Lee) 1. Dr Lee was required to attend for cross-examination but was not called. The question he poses, and which he italicises, is an important one in terms of causation. It is not one for which the defendant has an answer. I accept Dr Lee's argument that the plaintiff developed a tear after the weakening of the tendon from the fall. I see it as significant that Dr Lee considers that, but for the fall, the rotator cuff would not have ruptured at this stage of the plaintiff's life. 2. I should add that the explanation of weakening of the tendon from the fall and/or the surgery undermines not only Dr Home's opinion that it is degenerative, but also Dr Smith's finding that there would be no symptoms present now and the plaintiff is "manufacturing physical signs". At the time that Dr Smith saw the plaintiff (24 June 2016), it was a matter of weeks before the August 2016 MRI scan revealing the tear in the supraspinatus tendon, which a likely explanation of the plaintiff's presentation with symptoms of the kind Dr Smith saw and regarded as exaggeration. 3. The plaintiff's undiagnosed (at the time) rotator cuff tear renders a number of the conclusions Dr Smith came to as being less reliable than those of Dr Lee, whose interpretation of the relationship between the rotator cuff tear and the plaintiff's injury I prefer to that of Dr Home. Failure of the plaintiff to tender reports on this issue by the plaintiff's treating doctors 1. Counsel for the defendant submitted that the reports of Dr Lee and Dr Home were "provided on the basis of additional diagnostic material and not medical examinations". He went on to say: "No reports on the issue (or at all) have been provided by any treating doctor addressing the issue of the causal link between the recent tear and the subject accident. No explanation has been provided for this failure. The defendant submits that the Court to draw an inference that any such report would not assist the plaintiff's position." 1. The plaintiff underwent an MRI scan in August 2016 which demonstrated a tear of the supraspinatus. The question of how it should be interpreted, in terms of assisting the Court with the relevant information for the purpose of determining causation, is an appropriate matter for medico-legal reports. 2. The discovery of the plaintiff's rotator cuff tear was ascertained on an MRI in August 2016, a little over two months prior to the hearing. Supplementary reports from Dr Home (dated 7 November) and Dr Lee (dated 8 November 2016) were able to be tendered by the parties because of their standing as supplementary reports. For the plaintiff to seek a fresh report from the treating surgeon (who I note resides in Queensland) at such short notice could well have imperilled the trial date. 3. Accordingly, I reject this submission. Quantum of damages 1. The plaintiff claims non-economic loss, past and future out of pocket expenses and future home care on a commercial basis. Non-economic loss 1. The plaintiff is 68 years of age and already had significant degenerative changes to his left shoulder and cervical spine, which were rendered symptomatic and aggravated by the accident. 2. The defendant submits that when assessing damages I should take into account the increased possibility that the plaintiff would have suffered injury in any event due to the degenerative changes that predisposed him to such injury, referring to Seltsam v Ghaleb [2005] NSWCA 208 and Ridolfi v Hammond [2012] NSWCA 3. 3. The plaintiff's increased possibility of suffering injury "in any event" (defendant's written submission, paragraph 47) is because of his age. If the defendant's submissions on this issue were correct, then damages would need to be reduced for any claim of a person with degenerative changes of the kind the plaintiff has. 4. That is not the approach that the Court has traditionally taken in relation to claims made by older persons. While it is acknowledged that as persons age, degenerative changes to their body start to become apparent, the correct approach to this issue is set out by McColl JA in Varga v Galea [2011] NSWCA 76 at [72]-[74] as follows: "72. Reece v Reece states the uncontroversial proposition that the plaintiff's age at the time of the assessment of damages is a factor relevant to the assessment of non-economic loss, a proposition Handley JA made abundantly clear when considering Reece v Reece in Marshall v Clarke (Court of Appeal, unreported 5 July 1994); see also Christalli v Cassar [1994] NSWCA 48 (at 3) where Kirby P (with whom Powell and Cole JJA agreed). 73. Age, however, is only one of the numerous matters the Court takes into account in its assessment of non-economic loss, which is defined in s 3 of the 2002 Act as follows: "'non-economic loss' means any one or more of the following: (a) pain and suffering, (b) loss of amenities of life, (c) loss of expectation of life, (d) disfigurement." 74. The assessment of non-economic loss depends on the circumstances of each plaintiff, albeit as s 16 of the 2002 Act now requires, as assessed by reference to a "most extreme case". In this respect, in my view however, Windeyer J's remarks in Thatcher v Charles [1961] HCA 5; (1961) 104 CLR 57 (at 71-72) remain cogent: "Compensable loss depends not only on the severity of the physical injury but on the consequences for the individual. No two injuries are really the same; and the consequences of apparently similar injuries vary infinitely for different individuals. Thus amounts given in different cases may be harmonious on principle, although appearing disproportionate when the physical injuries alone are regarded. Measuring in money such things as pain and suffering or the impairment of capacity to lead life to the full really involves dealing in incommensurables. It is an attempt to weigh imponderables." As Handley JA observed in Dell v Dalton (1991) 23 NSWLR 528 (at 532), although Windeyer J was in dissent, this passage "reflected the previous law"." 1. The plaintiff did suffer from degenerative changes. I note the observations of Dr Smith that the plaintiff's degenerative changes were greater than usual, but some caution should be exercised in relation to Dr Smith's reports generally since he was unaware that the plaintiff in fact was presenting with a rotator cuff injury. What is clear is that the plaintiff has led a very healthy lifestyle for decades and there is no suggestion that his prior medical history indicates that any of these degenerative changes had ever become symptomatic. This is not a plaintiff with prior complaints of back pain, requests for analgesics or ongoing physical disabilities. To the contrary, he was leading a very physically active life, attending the gym and undertaking martial arts for one and a half hours a day, five days a week. He was also practising archery and other sports. He had been fit all his life and lived independently. 2. Following the injury he was treated conservatively with a number of cortisone injections before undergoing surgery. I am satisfied that it is very likely that he will have to have further surgery in relation to the rotator cuff injury. 3. The plaintiff's evidence concerning the impact that this accident had on his lifestyle is convincing. Both he and his son (who Mr Griscti agreed was a credible and honest witness) gave evidence that as a result of these injuries, the plaintiff was no longer able to live on his own and moved to Queensland so that he could live with his son and then live alone. His son lives approximately one kilometre from him and spends about one and a half hours a week assisting him with heavier household tasks and shopping. 4. The plaintiff initially tried to cope with his treatment while in Sydney by undergoing physiotherapy and ultrasound. He was asked whether this helped and he replied: "A little bit but not that much. And I said "How long before this shoulder heals?" and she said "Normally they don't"." 1. As a result, the plaintiff took the decision to move to Queensland to be near his sons: "Q. In around October 2013, so this is just a couple of months, a few months after the fall, you moved to Queensland. Is that right? A. Yes. My son - both my sons are in Queensland and they said "You better come up here and we can look after you better up here. You'll be better off up here with us". Q. So now do you live close to either of your sons? A. Yes, I live - it's 900 metres to Shaun's(?) house or unit, yeah. Q. He's one son? A. That's the youngest son. He's the one that comes around and does most of the work in the place if I want something or shopping, he will drive me down to do the shopping or have the washing done or some of the cleaning in the house, yeah. Q. Whereabouts does your other son live? A. Coomera. Q. How far is that from you? A. I suppose-- Q. In time. A. About 20 minute drive, 25 minute drive, yeah. Q. So then once you moved to Queensland did you find yourself a - sorry. Were your injuries, pain from your injuries continuing? A. Yes they were continuing. Q. Did you find a doctor up there? A. Yes. I went to see Dr Power in - at Gold Coast Highway and he – then he sent me to Dr Zavattaro on Nerang Road and then Dr Zavattaro put some cortisone in the shoulder a couple of times and then he directed me off to Flynn Hospital where I had X-rays done there and a dye put into the shoulder. And then from there they went to Robina Hospital which they did the operation there in August last year." (T 19-20) 1. The plaintiff described his condition prior to surgery as being that there was "no improvement" and that there was muscle atrophy by reason of lack of exercise (T 20). He described his current condition as following: "Q. So then you had the surgery on your left shoulder? Did your shoulder recover after that surgery? A. No, you still have pain sleeping. You don't get say a good seven hours' sleep. It's broken sleep cause you roll and the pain so you don't sleep very well. But simple things, have a shower, you're using a towel to dry yourself, pulling your pants up, tightening a belt, anything that - the movement there it's - you know it's always there. You've got a pain in it. Q. After the operation, immediately after the operation did you have to have a sling or any support of your shoulder? A. Yes. Michael that did the operation, they gave me a sling and he said "I'd rather you don't use the sling". He said, "Go for walks and the movement will try and help the recovery of the arm". And they gave me strong elastic bands, thick ones and different colours, red and blue, that are strengthened and they said put that around the pole and you use that for exercise to exercise your arms or arm, shoulder. Q. Did you have further physiotherapy after the surgery? A. Yes. At the Robina Hospital we had physio there, maybe four to five months and they said "There's not much more we can do. It's up to you now to - your recovery. You've got the exercises to do". They gave me a list of exercises. "And the bands there and just use that". That's virtually about it. Q. Now after surgery, did your shoulder get better, get worse or continue the same? A. No, just continued the same. After the cortisone that gives you relief for about six to eight weeks then it's back to normal again." (T 21) 1. The plaintiff has undergone one such surgical procedure and it appears very likely he will have to undergo a second. He has been in constant pain, requiring a series of cortisone injections. However, I must take into account the issue of age, even though it is only one of "numerous matters" (Varga v Galea at [72]) that the Court takes into account. The assessment by the plaintiff of 30% is in those circumstances too high, taking into account the facts of this case. 2. When these proceedings commenced, counsel for the defendant initially refused to provide a schedule of damages on the basis that the plaintiff should not be awarded anything. In the course of closing submissions he has made some brief comments. They have been of little assistance. 3. Taking into account the plaintiff's age as well as the loss of amenities of life and his level of pain and suffering, I am of the view that the relevant percentage is 26% which equates to $48,500. Past and future out-of-pocket expenses 1. Past out-of-pockets are agreed in the sum of $917.50. 2. Dr Lee and Dr Home agree that surgery is warranted. Counsel for the defendant submits that there is "relative uncertainty" as to whether the plaintiff will undergo this surgery. While I note Dr Home's view that the current disability is mild, the benefit could be outweighed by the risks. I note Dr Lee's response that the plaintiff should ask his surgeon about the expected risk and benefit. Taking that into account, I am satisfied that it is significantly likely that the plaintiff will undergo the surgery, and in those circumstances I propose to award the full sum. There would also be physiotherapy costs of $1,500. 3. The plaintiff may also require further cortisone injections. I note Dr Smith recommended injections into the plaintiff's neck. While the plaintiff does not take analgesics because of his dislike for products such as Endone, he is likely to continue to need to see his medical practitioner and he may have a future requirement for surgery. Taking all of the above into account, I am satisfied that I should accept the estimate of $15,000 for future treatment expenses set out by counsel for the plaintiff in her helpful written submissions. Domestic assistance 1. Counsel for the defendant, as is noted above, agreed in submissions that the plaintiff's son was an impressive witness. He gave sensible and realistic estimates of time, described the tasks he performed and painted a clear picture of his father's dependence upon him for those tasks. 2. The plaintiff's evidence in relation to his need for assistance was as follows: "Q. I want to try and get a picture of how these injuries have affected you. So after the accident were you able to go back to looking after yourself fully? A. Not fully because you have trouble - say with the washing, any great loads so your left arm really can't take that much strain. You haven't got any strength in it and there's a pain. You can lift it up but you have pain lifting it up. Q. Any other housework you have problems with? A. Simple things. Say putting things back on a shelf and just general sweeping up around the - cause you've got a wooden floor so you may not – so much as carpet, vacuum cleaner as sweeping up or - and mopped it mainly when my son comes around they'll sort that. Q. Shopping? A. Yes, Shaun picks me up and takes me down there if there's any heavy shopping to buy, yeah. But local stuff, say small stuff, you do that yourself. Q. So when you moved to Queensland what did you move - where did you live initially? A. I moved around. I lived with Shaun for a while while Shaun was up in Rockhampton. I lived with his mate there. They had a big unit in Miami Beach. I think I stayed with them for - time is not sure there. And then moved with my son in Coomera for a length of time and then moved back to Mermaid by myself then because it was close to Shaun. Q. So now you're living by yourself? A. Yes, that's right. Q. What is the accommodation? Unit or house? A. No, it's a unit. Q. How big is it? A. It's one bedroom, bedroom upstairs and lounge room downstairs. Q. You mentioned that Shaun comes around to help out. How often does he come around to help you out? A. Shaun comes around approximately twice a week and it's about an hour at a time he comes round. Q. Is he always available to do that or does he have other commitments? A. Not always because he starts work early in the morning so they - about four in the morning so you have to fit in with his hours also." (T 22) 1. Both the plaintiff and his son told the Court that this arrangement was not intended to be a permanent one. The plaintiff's evidence was: "Q. Do you want to continue to rely on him or would you prefer to get someone-- A. Well, I won't be able to rely-- Q. Let me finish, please. A. Sorry. Q. Do you want to continue to rely on him or would you prefer to pay a cleaner to come in and help you out once or twice a week? A. Well, I'll probably have to get a cleaner in to help me out once or twice a week. Q. Why is that? A. Well, Shaunie no doubt will be moving away or getting married. He's living with a German girl so he'll probably get married and move away. They're going overseas though." (T 22) 1. As the plaintiff is likely to have surgery in 2017 (T 23), and there is a likelihood that his son will marry and want to start a family, the plaintiff will clearly require domestic assistance of a paid variety and he has indicated that he will seek to obtain this if his son is not available to help him. 2. It is clear from this evidence that the plaintiff has required domestic assistance since the accident. He in fact moved to Queensland so that he could receive this assistance, which is strong evidence in support of there being "a reasonable need for the services" (Coles Supermarkets Australia Pty Ltd v Haleluka [2012] NSWCA 343 at [52]). 3. This brings me to the question of hours, which is "a factual question" (Coles Supermarkets Australia Pty Ltd v Haleluka at [52]). Both parties have obtained statements from an orthopaedic surgeon as to the hours of care needed, a process which was criticised by Basten JA in Boral Bricks Pty Ltd v Cosmidis [2013] NSWCA 443 at [93]. 4. The opinions of the orthopaedic surgeons are that the plaintiff needs assistance. That opinion (if not a quantification of the hours) can be noted. Dr Home states at page 9 of his report of 24 June 2016 that the plaintiff's capacity for domestic activities has been affected on a long-term basis and Dr Lee expressed a similar view. Dr Smith did not agree, but Dr Smith was unaware of the plaintiff's more recent injuries. 5. In cases such as these, the best evidence is lay evidence. This is a particularly strong case in relation to home care, because the plaintiff actually moved interstate in order to receive this assistance, went to live with his son until he was able to improve his ability to cope and is now in a position where he will have to pay for that assistance. 6. No claim for past domestic assistance is made as it is below the threshold and was provided voluntarily. The claim for future domestic assistance is for 1.5 hours per week for the plaintiff's life expectancy ($37,500) and a claim for 6 hours per week for 3 months following surgery (see Dr Lee's report of 2 November 2016, a total of $2,280). This is a total of $39,780. 7. This brings me to the question as to whether there should be a deduction to take into account the observations of the New South Wales Court of Appeal in Metaxoulis v McDonald's Australia Ltd [2015] NSWCA 95. Counsel for the defendant submits that there should be a 50% deduction. If allowed at one and a half hours per week, that would be $44,962.50, 50% of which would be $22,481.25. Fifty percent is a higher percentage than that permitted in Boral Bricks Pty Ltd v Cosmidis. 8. I prefer the plaintiff's submission that only a small deduction should be made as the plaintiff enjoyed very good physical health and fitness at the time of the accident and could have been expected to enjoy a very fit old age in much the same way. In those circumstances, I propose to round down the claim for future domestic assistance to $35,000. Schedule of damages Non-economic loss $48,500 Past out-of-pocket expenses $917.50 Future out-of-pocket expenses $15,000 Future care $35,000 Total $99,417.50 Costs 1. The plaintiff has been successful, and costs must follow the event. I have granted liberty to apply. Orders 1. Judgment for the plaintiff for $99,417.50. 2. Defendant to pay the plaintiff's costs. 3. Liberty to apply in relation to costs. 4. Exhibits retained for 28 days. ********** 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: 13 December 2016