Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Fitzsimmons v Coles Supermarkets Australia Pty Ltd [2013] NSWCA 273
• Hearing dates: 16 July 2013
• Decision date: 29 August 2013
• Before: Basten JA at [1]; Emmett JA at [60]; McDougall J at [142].

Decision

(1) Grant leave to appeal against the judgment given in the District Court on 5 April 2012.

(2) Deem the notice of appeal filed on 5 July 2012 to have been properly filed and served in accordance with the rules.

(3) Allow the appeal and set aside the judgment for the defendant given in the District Court, except the order as to costs.

(4) In place thereof, give judgment for the plaintiff against the defendant in an amount of $886.50, such judgment to take effect on 5 April 2012.

(5) Order that the appellant pay the respondent's costs in this Court.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: TORTS - negligence - occupier's liability - appellant fell in respondent's supermarket - where appellant slipped on wet floor left unattended for several minutes while wet floor warning signs were in place - whether respondent breached its duty of care to appellant in circumstances by failing to take reasonable precaution against risk - causation - where primary judge took into account own observations of appellant in witness box - assessment of damages where medical expert witnesses not cross-examined despite conflicting opinions - contributory negligence; TORTS - negligence - whether appeal as of right under s 127 of District Court Act 1973 - where primary judge assessed damages, if respondent were liable, at $1773 - sufficiency of appellant's affidavit as to whether appeal as of right under UCPR r 51.22(2) - leave granted
• Legislation Cited: Civil Liability Act 2002, ss 5B, 5G, 5H, 5R, 16; District Court Act 1973, s 127; Evidence Act 1995, s 79; Law Reform (Miscellaneous Provisions) Act 1965, s 9; Uniform Civil Procedure Rules 2005, rr 51.22, 51.53
• Cases Cited: Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479; Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353; Council of the City of Greater Taree v Wells [2010] NSWCA 147; Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304; McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306; Morvatjou v Moradkhani [2013] NSWCA 157; P&M Quality Smallgoods Pty Ltd v Leap Seng [2013] NSWCA 167; Skulander v Willoughby City Council [2007] NSWCA 116; (2007) 73 NSWLR 44; Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141; Stojan (No. 9) Pty Ltd v Kenway [2009] NSWCA 364; Strinic v Singh [2009] NSWCA 15; Timberland Property Holdings Pty Ltd v Bundy [2005] NSWCA 419
• Category: Principal judgment
• Parties: Leslie Fitzsimmons - Appellant; Coles Supermarkets Australia Pty Ltd - Respondent
• Representation: Counsel: R de Meyrick - Appellant; D Priestley - Respondent; Solicitors: CBD Law - Appellant; McCabes - Respondent
• File Number(s): CA 2012/128388

Decision under appeal

• Jurisdiction: 9101
• Date of Decision: 2012-04-05 00:00:00
• Before: Olsson DCJ
• File Number(s): DC 2010/244910

Judgment

1 BASTEN JA: On 6 December 2009 the appellant (the plaintiff in the court below), Leslie Fitzsimmons, slipped and fell on a wet floor in Coles Supermarket at Gorokan on the New South Wales central coast. In proceedings brought in the District Court at Gosford, she alleged that the respondent (the defendant in the court below), Coles Supermarkets Australia Pty Ltd ("Coles"), had breached a duty of care which it owed to her to take reasonable precautions for her safety. She claimed that she suffered a number of injuries when she slipped and fell, to her right ankle and, most significantly, to her back. The proceedings were heard in February 2012; the trial judge, E Olsson SC DCJ, dismissed the plaintiff's claim and ordered her to pay the defendant's costs. The primary basis for dismissing the claim was her failure to establish that Coles was in breach of its duty of care, having taken adequate precautions to warn customers of the slippery condition of the floor, of which it was aware.

Leave to appeal

2 An appeal to this Court lies only with leave of the Court, unless there is a basis for concluding that the amount in issue is at least $100,000: District Court Act 1973 (NSW), s 127(2)(c). Although she dismissed the case on liability, the trial judge assessed damages in an amount of $1,773. The appellant challenged that assessment, but the fact of the assessment demonstrated that there was a large question as to whether the claim was anything like $100,000.

3 The appellant, in filing the notice of appeal, was required to file and serve an affidavit setting out the material facts upon which she relied to show that the restriction on the right of appeal did not apply: Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), r 51.22(2). The appellant's solicitor filed an affidavit stating his belief that the appellant's claim was worth more than $100,000 and annexing a schedule of damages tendered at the hearing. Such an affidavit is inadequate. Accordingly, leave was required. However, the respondent took no objection to the competency of the appeal, nor, ultimately, to a grant of leave, should it be required.

4 Without conceding that leave was required, counsel for the appellant should be taken to have sought leave in the course of the hearing, when he referred to the issue of leave being raised by the respondent and stated that "if it were [thought] to be necessary, I'd give an undertaking that the appropriate document be filed if it need to be ex post facto": Tcpt, 16/07/13, p 55. Because, for the reasons indicated below, the trial judge erred in addressing the question of liability, and because there are serious issues as to the assessment of damages, there should be a grant of leave to appeal.

Liability

5 That the defendant owed a duty of care to the appellant was not in doubt: the question was whether it failed to take reasonable precautions against a risk of harm of which it was aware: Civil Liability Act 2002 (NSW), s 5B. This was the question posed and answered by the trial judge in her reasons at [27] and [34]. The trial judge also referred to reliance in the defendant's pleading on there being "an obvious risk" within the terms of ss 5G and 5H of the Civil Liability Act. How those provisions were relied on is not apparent: the parties did not condescend to provide this Court with a copy of the defence and there is no reference to "obvious risk", or to the relevant provisions of the Civil Liability Act, in the defendant's oral submissions to the trial judge.

6 If the trial judge made a finding that the risk was obvious (which is by no means clear) that would have been erroneous. That the risk of slipping on a wet polished floor is obvious is not to the point, unless the wetness is also obvious. In the present case, the respondent deemed it appropriate, correctly, to place warning signs with respect to the slippery floor. Clearly the risk was not "obvious" absent the signs: nor was the Civil Liability Act intended to deal with the question of obviousness by reference to the adequacy of any warning which was appropriately given.

7 Section 5G states that in determining liability for negligence the plaintiff "is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk": s 5G(1). That provision involves a reversal of the burden of proof. It could not assist the defendant in the present case, whether or not the risk was obvious, because it was common ground that the plaintiff did not see the warning signs and did not know the floor was slippery. Section 5H provides that a person in the position of the defendant does not owe a duty of care to warn of an obvious risk. Once it is held that a warning is required, implicitly because the risk is not obvious, the adequacy of the warning is to be determined by reference to questions as to breach. Those questions cannot be determined by reliance on s 5H, which is directed to the existence of the duty. Accordingly, neither of these sections had applied in the present circumstances.

8 Slipping cases are common; where the risk of slipping is uncontroversial, the cases raise two broad areas of contest, namely:

(a) whether the defendant knew or should have known of the risk, and

(b) what steps the defendant should have taken (if any) as precautions against the risk materialising.

9 This was not a case in which the first kind of question arose: having deliberately created the risk, the defendant was aware of the risk. The only question was whether the precautions which it did in fact take were adequate to satisfy its duty of care to the plaintiff.

10 The trial judge found that an employee of the defendant placed three "wet floor" signs in a rough triangle around the area where the plaintiff slipped: at [33]. The plaintiff said that she did not see any warning signs, a fact recounted by the trial judge as part of the plaintiff's case, at [8]. The trial judge made no explicit finding with respect to that evidence, but there was no reason to reject it. Indeed, the defendant's case (at least on appeal) was that the plaintiff failed to observe any of the yellow warning signs which were in place: written submissions, par 13(d).

11 The plaintiff's circumstances, as described in her evidence, were that she was hurrying, she was carrying her daughter on her hip, she had come to the supermarket for the specific purpose of finding a birthday cake for her daughter and she was looking down the aisles as she walked past them in order to find the right section. There was also some suggestion that she had been arguing with her boyfriend, but it is not clear how that affected the circumstances of slipping, which were fully accounted for by the factors set out above.

12 None of these factors was remarkable. The duty of care owed by the respondent extended to a person acting as the appellant was on the occasion of her accident.

13 The warning signs were deployed at floor level. They were not readily within the line of sight of a shopper focused on the goods on display and the signs at the end of aisles. A person with a trolley may perhaps be more conscious of obstacles at floor level than a person without: the appellant did not have a trolley.

14 The risk posed by the wet floor had been created by the respondent's own staff in cleaning the floor. An attempt to dry the floor had failed and one member of staff had been dispatched to obtain absorbent material. The person who dispatched her did not expect that she would be gone for more than a couple of minutes. It would have been a simple step for the dispatcher to stay on or by the wet area in order to direct customers away from it for that very short period of time. In the terms of s 5B, the risk was foreseeable and foreseen; it was by no means insignificant; the precaution required imposed a minimal burden on the respondent; the precaution was likely to be far more effective than the three "wet floor" signs which had been deployed and that extra precaution would almost certainly have prevented the accident suffered by the plaintiff. It was a step which should have been taken. The respondent was negligent in not taking it.

Contributory negligence

15 Having found no liability on the part of the defendant, the trial judge, appropriately, did not attempt to assess contributory negligence. Although it might have been possible to determine in what respects, if any, the plaintiff failed to take reasonable care for her own safety, it is not meaningful to attempt an apportionment as between the plaintiff and a defendant found to have taken all steps necessary to fulfil its duty of care.

16 Each of the circumstances relating to the plaintiff and identified at [11] above was relied upon by the defendant as indicating a failure on her part to take reasonable care for her own safety. To that may be added the fact that she was wearing thongs.

17 People frequently wear thongs or slip-on shoes in public places: they may cause risk if they come off the foot or if something heavy falls on the foot. Those risks did not eventuate. Nor was there any evidence that the soles of thongs are inherently more slippery than other common forms of footwear.

18 The idea that a mother fails to take reasonable care for her own safety by carrying a two-year old child on her hip needs only to be stated to be rejected. (The same would be true of a father.)

19 That leaves, as part of the circumstances relevant to an assessment of her conduct, the facts that the plaintiff was hurrying and that she was looking for a specific item on the supermarket shelves. No doubt those elements distracted her from possible hazards on the floor. Nevertheless, they are forms of distraction which are common to customers in supermarkets from time to time and do not necessarily demonstrate any failure to take reasonable care for one's own safety.

20 Contributory negligence is to be assessed by applying the principles applied in determining the negligence of the respondent: Civil Liability Act, s 5R. That calls into play the general principles identified in s 5B. Nevertheless, the nature of the exercise being undertaken is somewhat different, being undertaken for the purpose of determining the plaintiff's share of the responsibility for the harm according to the "just and equitable" test: Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 9(1); Council of the City of Greater Taree v Wells [2010] NSWCA 147 at [107]-[108]. The standard of care which an individual owes to herself when shopping in a supermarket is not readily comparable with the standard of care which the supermarket owner owes to a class of individuals with greatly variable characteristics, comprised of its customers.

21 That the appellant was inadvertent and inattentive to the risk which materialised must be accepted. However, whether such inadvertence or inattention constituted contributory negligence is a separate question: McLean v Tedman [1984] HCA 60; 155 CLR 306 at 315. Failure to notice the slippery state of the floor would not have constituted contributory negligence, absent any warning. However, failure to notice the yellow "wet floor" signs did constitute a failure on the part of the appellant to take reasonable care for her own safety, but, given the nature and placement of the signs, it was not carelessness of a high order. An appropriate apportionment would be achieved by reducing any award of damages by 25% for contributory negligence.

Injuries caused by slip and fall

22 The evidence as to the injuries suffered by the plaintiff in her fall was inconsistent and confusing. The appellant gave evidence as to how she fell and the consequences as she perceived them. However, there was some psychiatric evidence that she suffered from an underlying borderline personality disorder which may have affected her perceptions and response to pain. Further, she saw a number of medical practitioners, some at least of whom were satisfied that she was exaggerating her symptoms. The picture was further complicated by the fact that she suffered other physical injuries between the date of the accident and the trial.

23 Some of the issues might have been resolved by reference to the medical evidence. Unfortunately, there was a high degree of variability and inconsistency between the opinions of medical practitioners called for the plaintiff and those called for the defendant: neither side sought to cross-examine any expert called by the other. There was, indeed, no oral evidence from any medical practitioner. As the Court has commented on previous occasions, this situation gives rise to great difficulty for a trial judge required to assess conflicting medical evidence and determine factual issues as to injury and causation: for recent examples, see Morvatjou v Moradkhani [2013] NSWCA 157 at [110]-[113] (Tobias AJA) and P&M Quality Smallgoods Pty Ltd v Leap Seng [2013] NSWCA 167 at [104] (Hoeben JA, Tobias AJA agreeing). Despite these complaints, trials are not run for the ease of the court and if the parties decline to incur the expenses involved in calling experts, they cannot be required to do so, nor should they be. It is a matter for the court to apply appropriate principles in resolving the inconsistencies in the evidence proffered by the parties.

24 Bearing these considerations in mind, it is necessary to consider the findings made by the trial judge. First, she set out the evidence given by the plaintiff as to the injury to her ankle and her back in the accident. She noted that whatever injury she sustained to her ankle, the effects were short lived and that her ongoing problems related to her lower back: at [38]-[40]. The trial judge rejected claims that a degree of bladder incontinence and seizures from medication were causally related to the accident, because there was "no medical support for either complaint": at [41]. This finding was not challenged on appeal.

25 The plaintiff gave evidence that she had, since the accident, been assaulted by her boyfriend on a number of occasions and had been "in a couple of car accidents", having to be cut from the car and taken to hospital in the course of one accident. She said that she sustained injuries to her back and stomach in the accident, although the detail of those injuries was not established: at [42]-[44]. The trial judge made the following findings at [59]:

"I have concluded that the plaintiff did sustain an injury to both her ankle and back in the fall, but that both resolved within a few months of the incident. I accept that she experiences some pain or discomfort but I do not accept that she has an ongoing and severe disability occasioned by the fall in Coles. She has pain in her back, spine and leg but given the evidence about being bashed and being involved in at least one serious car accident since the fall, I cannot be satisfied that it was caused by the fall."

26 The trial judge also expressed concern about "many troubling aspects" of the plaintiff's evidence. The reservations were twofold. First, the trial judge noted that there was disconformity between her appearance in the witness box, together with information she supplied to a Centrelink job capacity assessor and to a physiotherapist, on the one hand, and complaints of extreme disability made to medical practitioners and an occupational therapist, on the other. The second reservation related to a concession that she used cannabis occasionally, as contrasted with a record made at Gosford Hospital on 13 December 2009 that both she and her partner smoked "very heavily": at [60] and [61].

27 It is necessary to give careful consideration to this evidence and the findings and, in particular, any explanation the witness may have given in the course of her evidence for such inconsistencies. It may be that the inconsistencies are such that it is not possible for the trial judge to resolve them in a manner favourable to the plaintiff. On the other hand, the fact that the plaintiff exaggerated her symptoms on one occasion to a particular medical practitioner does not necessarily mean that her evidence in court is not credible.

28 With respect to the consumption of cannabis, the appellant was asked by her counsel if she occasionally smoked marihuana for pain relief since the accident: Tcpt, 23/02/12, p 17(5). She agreed that she had done but was no longer doing so. She also agreed that when she was younger she had tried "a lot of different drugs including marihuana". She denied that she was "a regular drug user at the time this accident occurred", stating that she was actually not taking anything: p 17(18). In cross-examination she was asked if she was using cannabis heavily before the fall at Coles and denied that she had smoked while she was pregnant with her daughter Crystal, or thereafter: Tcpt, p 34(5). It was also put to her that she had told a child protection social worker at Gosford Hospital, about nine days after the fall that both she and her boyfriend smoked cannabis "very heavily". Her answer and the ensuing questions were as follows (Tcpt, p 35):

"A. I said I would have had marihuana in my system, but I didn't say that I smoke it, because I had a lot of people smoking it around me.

Q. It was the case wasn't it that you were smoking marihuana heavily leading up to the fall as way of dealing with your life situation, isn't that right?

A. I didn't smoke it, I had people around me smoking it.

Q. You said that to that social worker didn't you?

A. I don't remember saying them words to her at all."

29 It appears that, at least implicitly, the trial judge rejected her oral evidence, which she described as "at odds with" the notes from Gosford Hospital, and disbelieved her explanation. (The judge attributed the date of the interview at Gosford Hospital to 13 December 2009, but, as put to the plaintiff in cross-examination, it in fact took place on 18 December.) The interview took place whilst the plaintiff was a patient in the hospital, at a time when her boyfriend came to visit and an argument erupted, leading to the intervention of the social worker and later security staff. What turned on the discrepancy as to the statements about cannabis use was not clear.

30 The other matter, which appears to have directly affected the assessment of the plaintiff's evidence, was the proposition that her presentation to medical practitioners and to the occupational therapist as "extremely disabled and unable to perform even basic daily tasks ... was entirely at odds with her presentation in the witness box ...": at [60]. That matter was raised at an earlier point in the reasons where, after setting our her evidence of her injuries and current symptoms, the trial judge stated:

"45 I had the opportunity of closely observing the plaintiff when she gave evidence. She walked unaided and without any sign of disability from the body of the court to the witness box and back. She sat in the witness box for almost three hours without a break. She did not shift position or complain of any discomfort in that period. It is possible that she was being stoical but that explanation does not sit conformably with the way in which she presented to the various medical practitioners.

46 In the witness box, she presented with a particularly flat affect, but denied taking any medication or drug prior to giving evidence. It is possible, as her counsel suggested, that she is severely depressed.

47 I can only assess the plaintiff based on how I observed her to be, and in accordance with the evidence."

31 There are three difficulties with this passage. First, the estimate of time was significantly inaccurate. The transcript recorded that she was affirmed and commenced her evidence at 11.31am: Tcpt, p 7. Assuming that the lunch adjournment was taken at 1pm, she was therefore in the witness box for a period of 1.5 hours. It is clear that the lunch break did not end at the usual 2pm, as her counsel apologised for the delay at the recommencement: Tcpt, p 39(20). Her subsequent evidence extended for approximately one-third of the transcript of the morning's evidence: accordingly, she was probably in the witness box for half an hour after lunch. The proposition that she "sat in the witness box for almost three hours without a break" was mistaken.

32 Secondly, there are great dangers in a trial judge seeking to assess the severity of a medical condition or disability by watching the person's presentation in court: in Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353 I noted that a trial judge is entitled to take account of observations of a witness, or party, in the courtroom, including whilst not in the witness box: at [31], referring to Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304 at 313 and 323. I suggested that such an exercise should be approached with caution, whether the plaintiff was in the witness box or not, reasons for caution including "the possibility that a condition may fluctuate; that a person unfamiliar with the courtroom environment may react differently in the courtroom and outside it, and that the judge does not have medical expertise": at [31]. (This was not an extreme case of a trial judge reaching a view based on his or her own reading of an MRI or scan, but the underlying concern is similar: cf Strinic v Sing [2009] NSWCA 15; 74 NSWLR 419 at [58]-[64].)

33 Thirdly, and related to the second point, the trial judge should not have drawn inferences from the presentation of the plaintiff in the witness box as to the seriousness of her medical conditions without identifying the possibility of such an inference being drawn and inviting counsel to raise it with the witness or, if they did not wish to do so, raising it herself. Failure to take that step, at least where the available inference was not obvious to others in the Court, involved an element of procedural unfairness. (Even if a judge considers a possible inference is obvious, it will usually be desirable at least to alert counsel to the possibility.)

34 The trial judge concluded that "there is a degree of exaggeration by the plaintiff of her symptoms, particularly when she was presenting to various medical practitioners": at [62]. (Some of the practitioners took a similar view.) However, read in the context of her reasons as a whole, it appears that her own assessment of the plaintiff in the witness box influenced her assessment of the plaintiff's current state of disability. It is not possible to dismiss the procedural unfairness as having no possible influence on the outcome of the trial: cf Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 at 147. To the extent that the outcome in the present case depended upon the proper assessment of the plaintiff's evidence, there would need to be a retrial.

35 Whether that result follows requires some further assessment of the way in which the trial judge disposed of this aspect of the case. The relevant passage, at [59], is set out at [25] above. Two significant findings derive from that passage. First, although the trial judge apparently thought that the plaintiff exaggerated her symptoms, she held that the plaintiff continued to suffer pain in her "back, spine and leg". On that view, it might be arguable that the "many troubling aspects" of the plaintiff's evidence were not ultimately relied upon to dismiss her complaints of suffering. (If that were correct, it would also follow that little turned for present purposes on the inconsistencies within the medical evidence.)

36 Secondly, and more plausibly, the passage suggests that the assessment of the plaintiff's claim of injury suffered in the fall turned not on her description of her disabilities, but on the issue of causation. That issue required findings as to other possible causes of the disabilities she continued to suffer. At [42] the trial judge said:

"She also said that since the accident, she has been assaulted by her boyfriend on a number of occasions, and required treatment from her general practitioner. She said that she was 'bashed pretty badly' on one occasion and that he kicked her."

37 It was true that the plaintiff continued to suffer assaults from her boyfriend after the accident, but the one to which the trial judge referred occurred almost a year before the accident. In chief, the plaintiff gave evidence that she had attended Gosford Hospital after being assaulted: it was put to her that the date was March 2008, although she was not sure of the date: Tcpt, p 18(10)-(20). No further detail as to that event was adduced. The evidence continued in relation to a later event:

"Q. I think you saw Dr Haberfield on 29 January 2009?

A. Dr Habberman.

Q. Did you tell him you had been in a car accident?

A. Yes.

Q. And was that a correct statement to that doctor or not?

A. No I --

Q. What had in fact happened to injure you at that time?

A. I actually got bashed pretty badly by Clinton.

Q. And was that something you didn't want to tell the doctor?

A. Yes."

38 The plaintiff was cross-examined in respect of this incident and asked, at Tcpt, p 30(20):

"Q. Why did you make up that story that day?

A. Well I was scared it would have happened, I would have got beaten worse, because I thought the doctor would have had to say something to someone and he would have got into trouble for it, and I didn't actually want him to get into trouble because he was the father of my daughter."

39 The plaintiff was cross-examined about the nature of the injuries and said that she was "limping a little bit, it was because I had pretty bad bruising", which she identified as being "up on my side" and said that she had been kicked twice by her boyfriend. She denied suffering back problems immediately before the slip at Coles.

40 The words quoted by the trial judge at [42] make it clear that this was the incident to which she was referring. It was not an incident that had occurred since the accident, but prior to it. There was no reference in the evidence to her having received medical treatment for domestic violence after the accident.

41 The trial judge then noted at [43]:

"43 She said that she had been in a couple of car accidents since the fall in Coles. In the first accident she said she was hurt but said nothing so as not to 'get the driver into trouble'.

44 In the second accident, however, she had to be cut from the car and taken to hospital because 'I couldn't feel my legs'. She said that she hurt her back and stomach in the accident. No evidence was led as to the injuries she had sustained in the accidents and the likely effect of those injuries on her back pain."

42 The plaintiff gave evidence in chief as to those accidents, which it was suggested to her occurred in April 2011 and August 2011: Tcpt, p 19(25). Counsel was apparently questioning on the basis of references "in medical material". With respect to the first accident, she gave the following evidence as to her injuries, at Tcpt, p 19(42):

"Q. What did you injure in that incident?

A. My back and I didn't have a - I lost a bit of the feeling in my leg I didn't feel, I couldn't feel it properly.

Q. Was that the same or different sensation to what you'd been feeling since the slip and fall in Coles?

A. It was the same sensation that I was getting.

Q. Do you think your back and/or leg felt permanently worse or temporarily worse after that motor accident?

A. Well I didn't --

...

Q. Did it get worse and stay worse or was it just a short term thing?

A. It got better after a little bit.

Q. You haven't put in any claim or court papers or anything in relation to that incident?

A. No."

43 The plaintiff then gave evidence of a further accident in which she had to be cut from the car and taken to hospital "because I couldn't feel my leg at all": Tcpt, p 20(23). Again she described pains in her back similar to that which she had felt since December 2009, "like it was just a sharp cramping pain and like it just felt like it was stabbing and burning my back": Tcpt, p 20(35). She said it got better "a short time after" and that she had made no claim in relation to that incident: Tcpt, p 20(45).

44 The plaintiff was asked no questions about injuries suffered in the 2011 car accidents in cross-examination. She was, however, asked about "other incidents of violence" between her and her boyfriend since the fall at Coles. It was put to her that in one of those incidents she had hurt her back, a proposition with which she agreed: Tcpt, p 47(30). It was also put to her that one was a few weeks after the fall, namely in February 2010. She said she did not know the date but agreed there was a time when she went to Wyong Hospital as a result of an incident: Tcpt, p 47(30)-(39). That incident was not relied upon by the defendant as giving rise to further injury; rather it was relied upon as the occasion on which the plaintiff was seen by a physiotherapist who made a record consistent with the plaintiff no longer suffering significant physical disabilities. The cross-examination (Tcpt, p 46) was as follows:

"Q. A note from the physiotherapist of 24 May 2010 it says 'Patient 30 minutes late for appointment', do you remember being late for a physio appointment around that time, that's about six months after the fall at Coles?

A. Is that the one where I had to go into the hydro pool or the other, because I actually had to do a hydro physio.

Q. I can't help you. Do you remember being 30 minutes late for an appointment around that time or not?

A. Possibly could have been late if I was having another argument with Clinton.

Q. The note says something 'Report much improved, only very occasional spasm', do you remember saying something like that, 'Much improved' around that time?

A. I told them once that it was getting better because of Clinton said he wasn't going to be taking me in there to do it any more and I wasn't able to get into the hospital any other way.

Q. The note goes on to say 'Able to run, do sit ups and pick up child', you said those things to the physiotherapist on 24 May 2010 didn't you?

A. Yes only because I knew I wasn't going to be able to get back in there to do any more physio because Clinton had told me he wasn't going to help me to take me in there any more.

Q. So your evidence is that you couldn't do any of those things but you made that up to the physiotherapist is that right?

A. Yes, so then --

Q. Because you knew you weren't going back anyway so you might as well tell a lie about it is that right?

A. Because when I spoke to her about it she said that I needed to keep going and doing more and I said 'Well I won't be able to get in anyway to come in and do them' and she wasn't like listening so I just told her that when I went back the next time that I was able to do heaps of things that I couldn't actually do so she wouldn't sit there and ask me questions.

Q. So you told her could do all those things just so you wouldn't be asked any more questions is that right?

A. Yeah."

45 The trial judge relied upon the notes of the physiotherapist as one of the "troubling aspects" of the plaintiff's evidence at [60]. However, if by that remark she intended to indicate that that material supported her conclusion that the plaintiff's injuries from the fall had "resolved within a few months of the incident" (at [59]), it was necessary to make a finding that some subsequent injury was the cause of her current disabilities, from which it was expressly accepted she still suffered. Those can only have been the car accidents, about which the plaintiff gave evidence in chief and as to which the trial judge had no medical evidence of any specific injuries. No doubt there was some inconsistency in the plaintiff's evidence in acknowledging that the pain she suffered following the car accidents was similar to that arising from the fall at Coles, but that it had resolved after a short time, in each case. A possible finding, on the basis of that evidence, was that the plaintiff no longer suffered pain in her back or legs; however, the trial judge made a contrary finding, namely that she continued to suffer such pain.

46 These difficulties with the findings made, when related to the chronology and the evidence, demonstrate that the finding as to lack of causation cannot stand.

Damages

47 The trial judge disposed of the claim for non-economic loss on the basis that there was "no demonstrable nexus between the fall and the pain of which the plaintiff complains": at [66]. For the reasons set out above, the finding as to lack of causal connection must be set aside, with the result that an assessment of the proportion of a most extreme case must be made, in accordance with s 16 of the Civil Liability Act.

48 With respect to past economic loss, the trial judge found that, on the probabilities, the plaintiff would not have worked, absent the accident. She based that on the psychiatric assessments and, implicitly, that of Dr Ann Stephenson, whose opinions she preferred to those of the respondent's psychiatrist: at [56].

49 The trial judge described the question of future economic loss as "more vexed": at [73]. What precisely she meant in that regard was not explained. She dismissed the claim for future economic loss on the basis that the plaintiff did not continue to suffer from injuries sustained in the fall. Again, once the finding with respect to causation is set aside, that conclusion must also be revisited.

Conclusions

50 The Court was taken through much of the medical evidence, on the basis that it might need to assess damages if otherwise persuaded with respect to liability. However, findings as to loss must depend to a significant extent on the existence of a current and significant disability referrable to the accident. That in turn depends, at least in part, on an assessment of the plaintiff's evidence. Because there are flaws in the assessment undertaken by the primary judge, that is not an exercise which this Court, which did not see the plaintiff give evidence, can properly undertake.

51 The result is that the judgment below for the defendant must be set aside and the matter remitted to the District Court for a new trial. That is not a course which recommends itself. At least on one reading of the medical evidence and the evidence given by the plaintiff, it would be difficult to be satisfied on the balance of probabilities that any significant loss has been suffered, which can be attributed to the accident at Coles. On the other hand, the trial having miscarried for the reasons noted above, it cannot be said that there has not been a substantial wrong or miscarriage, for the purposes of UCPR, r 51.53. Accordingly, there must be a new trial, limited to the question of damages, including causation with respect to specific injuries.

52 In my view the Court should make the following orders:

(1) Grant leave to appeal against the judgment given in the District Court on 5 April 2012.

(2) Deem the notice of appeal filed on 5 July 2012 to have been properly filed and served in accordance with the rules.

(3) Allow the appeal and set aside the judgment given in the District Court.

(4) In place thereof, give judgment for the plaintiff against the defendant for damages to be assessed, such damages to be reduced by 25% on account of contributory negligence.

(5) Order that the respondent pay the appellant's costs in this Court.

(6) Remit the matter to the District Court to determine:

(a) the injuries suffered by the plaintiff in the accident;

(b) the damages to be awarded for those injuries, and

(c) the costs of the trial, including the costs of the first trial.

Orders

53 Each member of the Court has come to a different view as to the appropriate outcome of the appeal, beyond the agreement that there should be a grant of leave to appeal. With respect to liability, McDougall J and I would uphold the appeal, accepting that the appellant has established a breach of duty on the part of the respondent. (Emmett JA would dismiss the appeal on the ground that no error had been made by the trial judge in this respect.)

54 With respect to contributory negligence, the conclusion as to liability reached by Emmett JA leaves the plaintiff entirely responsible for her injuries; McDougall J concludes that her responsibility was 50%; in my view it was 25%. With respect to damages, McDougall J is of the view that the plaintiff failed to prove damage beyond the agreed amount for out-of- pocket expenses, namely $1,773. On the basis that contributory negligence should be assessed at 50%, she would be entitled to a verdict in the sum of $886.50.

55 Although Emmett JA does not reach any concluded view in that regard, his assessment of the medical evidence, contingent on his conclusion on liability not being accepted, is closer to that of McDougall J than to my reasoning. I was not prepared to reach that conclusion, or indeed any conclusion as to the appropriate award of damages.

56 The appropriate course to be taken in these circumstances was discussed by Mason P (with the agreement of Beazley JA and me) in Skulander v Willoughby City Council [2007] NSWCA 116; 73 NSWLR 44. The circumstances in that case were not dissimilar to the present, with one member of the Court (Mason P) not satisfied as to liability and the two members who upheld liability differing in their respective assessments of contributory negligence, Beazley JA assessing it at 20%, whereas I assessed it at 50%. The course taken by the President in that case was to agree with my orders, they being the intermediate position and closer to the conclusions of the President than were those of Beazley JA. It is appropriate to adopt a similar course in the present case.

57 As to contributory negligence, I accept that it should be 50%, as assessed by McDougall J, as that figure is between the primary conclusions reached by Emmett JA and me. I also accept that the appropriate order as to damages is that proposed by McDougall J.

58 It follows that the orders as to costs should be as proposed by McDougall J.

59 Accordingly, with the concurrence of other members of the Court, the orders are as follows:

(1) Grant leave to appeal against the judgment given in the District Court on 5 April 2012.

(2) Deem the notice of appeal filed on 5 July 2012 to have been properly filed and served in accordance with the rules.

(3) Allow the appeal and set aside the judgment for the defendant given in the District Court, except the order as to costs.

(4) In place thereof, give judgment for the plaintiff against the defendant in an amount of $886.50, such judgment to take effect on 5 April 2012.

(5) Order that the appellant pay the respondent's costs in this Court.

60 EMMETT JA: This appeal is concerned with a fall suffered by the appellant, Ms Leslie Fitzsimmons, in a supermarket operated by the respondent, Coles Supermarkets Australia Pty Ltd (Coles), at Gorokan on the Central Coast of New South Wales. Ms Fitzsimmons sued Coles in the District Court, claiming that Coles was in breach of a duty of care owed to her as a customer of the supermarket. After a trial before a judge of the District Court, the primary judge gave judgment for Coles and ordered Ms Fitzsimmons to pay Coles' costs. The primary judge concluded that, if Coles were liable, Ms Fitzsimmons' damages would have been $1,773.

61 By notice of appeal filed on 5 July 2012, Ms Fitzsimmons appealed to this Court. In her notice of appeal, Ms Fitzsimmons seeks orders that the appeal be allowed, the judgment of the District Court be set aside and in lieu thereof verdict and judgment be entered for Ms Fitzsimmons in such amount as is determined by this Court. In the alternative, she claims an order that the matter be remitted to the District Court for further hearing on damages in accordance with the reasons of this Court.

62 In her written submissions, Ms Fitzsimmons asserts that her claim was worth many times more than the sum of $100,000, being the amount involved required for an appeal as of right. She asserts that a proper assessment of damages by the primary judge would have given her a right of appeal and that her appeal clearly has prospects of success. She says that a substantial injustice has occurred warranting the grant of leave, if leave be required. In its written submissions, Coles points out that Ms Fitzsimmons, despite saying in her notice of appeal that damages could be determined by the Court of Appeal if her appeal on liability be allowed, contends in her written submissions that the only practical result if the appeal on liability be allowed would be a new trial on damages. It says that if Ms Fitzsimmons needs leave to appeal a formal application should be made. Coles gave no indication in its written submissions that leave would be opposed.

63 Ms Fitzsimmons has made no application for leave to appeal. However, an affidavit was filed on her behalf attaching a schedule of damages prepared for, and tendered at, the hearing before the District Court. The total of damages shown in the schedule is in excess of $1,000,000. If that indeed be the amount in issue, leave would not be required. However, as I have said, the primary judge, after finding for Coles on the question of liability, concluded that, even if Coles were liable to Ms Fitzsimmons in respect of the fall that she suffered, the damages would be $1,773. The affidavit is quite inadequate to demonstrate that the amount at stake in the appeal is in excess of $100,000.

Findings of the Primary Judge

64 Ms Fitzsimmons went to the Coles supermarket (the supermarket) with her daughter and partner on 6 December 2009 to buy a birthday cake for her daughter's second birthday. The supermarket was fairly busy and Ms Fitzsimmons was carrying her daughter. She was wearing light clothing and a pair of thongs on her feet. She accepted that she was hurrying because she does not like being in supermarkets and does not like crowds. She accepted that it was possible that she was having a fight about the birthday cake with her partner. She also admitted the possibility that she was not looking where she was going when she fell.

65 Ms Fitzsimmons said that she did not see any warning signs and did not see anything on the floor before she fell. Her right foot unexpectedly went out from under her and she fell to the ground. Ms Fitzsimmons said that the floor felt wet after she slipped over. She said the wetness looked like a big circle and that it went close to where the aisles were.

66 Mr Sandra Carroll gave evidence for Coles. At the time of the incident, Ms Carroll was the customer service manager in the supermarket. On the day in question, Ms Carroll "noticed" that there was a dirty patch on the floor in front of a drink refrigerator. The primary judge accepted that but also said that Ms Carroll was "told" and "notified" by Ms Kim Smith, another Coles employee, whom Ms Carroll then asked to clean up the dirty patch. Ms Smith retrieved a mop and bucket in order to do so.

67 Ms Carroll said that she or Ms Smith placed yellow "wet floor signs" on the floor, in preparation for the floor to be mopped and the dirty patch removed. The "wet floor signs" were triangular in shape, bright yellow in colour and, needless to say, warned of the presence of a wet floor, which might constitute a slip hazard to anyone walking nearby. She said that she thought three or four wet floor warning signs were displayed about one and a half to two metres apart. Ms Carroll did not have a distinct recollection of the position of the signs. She said that customers were "cranky" because they had to walk around the signs. No barricades were put around the area.

68 Because the mop brought by Ms Smith was new, it did not absorb all of the water on the floor. I interpolate that, at the time the floor was being mopped and at the time the floor had finished being mopped and there was residual water on the floor not absorbed by the new mop, it appears that the wet floor warning signs were already in place, warning people of the presence of a slip hazard. Ms Carroll also referred to them as "slippery floor signs". Ms Carroll told Ms Smith to "get a paper towel or Chux or something" to dry the floor. Ms Carroll saw Ms Smith go to get the paper towel or Chux. Ms Carroll said that, as she turned around, she saw Ms Fitzsimmons on the floor. She thought that approximately a minute elapsed between Ms Smith's going to get the paper towel and Ms Fitzsimmons' fall. Ms Carroll said that Ms Fitzsimmons was quite distraught and that she said "I wasn't paying attention. I was in such a hurry".

69 The length of time that elapsed between Ms Smith's departure to retrieve the paper towel or Chux and Ms Fitzsimmons' fall is not entirely clear. The primary judge found that not more than a minute elapsed between Ms Carroll being told by Ms Smith that there was water on the floor and Ms Smith "picking up paper towel or Chux in order to clean it up". It is also unclear whether Ms Carroll stayed at the site where the wet floor warning signs were displayed, in the light of Ms Carroll's evidence that at that time she saw Ms Smith walk over to the cupboard and go into the kiosk to get the paper towel or Chux and that Ms Carroll had to turn back to see Ms Fitzsimmons on the floor. Ms Carroll conceded that an employee of Coles could have been placed near the wet floor to warn people further of the hazard, in addition to the wet floor warning signs. That indicates that Ms Carroll did not remain at the site. The evidence of closed circuit television footage (CCTV footage), which was before the primary judge and the Court of Appeal, indicated that there was no Coles employee in the area when Ms Fitzsimmons fell.

70 Ms Smith corroborated Ms Carroll's evidence that there were dirty marks on the floor and that she was instructed to get a mop and to clean the floor. Ms Smith said that Ms Carroll told her that the floor was still wet and she went "and grabbed some Chux". Ms Smith said that wet floor warning signs had been placed on the floor, but she was not sure of their position. She thought there were "about two" of them.

71 Ms Ashleigh Hands, who was a service assistant with Coles working in the bakery on the day in question, also gave evidence on behalf of Coles. Because Ms Hands had a first aid certificate, she was called to the site of Ms Fitzsimmons' fall. Ms Fitzsimmons told her that she had come to buy candles and that she was rushing to get to a birthday party and slipped on the wet floor. Ms Hands said that she saw three wet floor warning signs on either side of the wet area and in the aisle. She thought that they were triangular in shape and were two to three metres apart.

72 The primary judge found that each of Ms Carroll, Ms Smith and Ms Hands was honest and reliable and that each made appropriate concessions in cross-examination. Her Honour observed that there was a divergence of evidence as to the number of wet floor warning signs that had been placed around the area.

73 The primary judge considered that Ms Hands in particular was an impressive witness. Although the three witnesses called by Coles were not certain as to the number of wet floor warning signs, each one of them thought there were at least two and probably more. Her Honour formed the view that Ms Hands' recollection of events was reliable. Her recollection was that there were three wet floor warning signs placed in a triangular pattern. Her Honour found that that evidence was broadly consistent with the evidence of Ms Carroll and was not inconsistent with the evidence of Ms Smith.

74 The CCTV footage indicates that when Ms Fitzsimmons came into view of the camera, and up to the time when she fell, she was looking to her right up an aisle of the supermarket. One of the wet floor warning signs is visible in the CCTV footage but, because of the camera's position, it is not possible to see whether there were any other signs. Her Honour found that the lighting in the supermarket was good and that the relevant area of the supermarket was relatively clear of other materials, such as product displays. The CCTV footage shows other shoppers walking backwards and forwards in the vicinity of the area where Ms Fitzsimmons fell. The CCTV footage suggests that Ms Fitzsimmons fell forwards, although that is by no means certain.

75 The primary judge accepted that the floor had been dirty and that Ms Smith had been asked to clean it. The mop used to clean the dirty area did not absorb all of the water, leaving some water on the surface of the floor. Her Honour found that "three yellow warning signs", that is, the wet floor warning signs, were placed "in a roughly triangular pattern around the area in question". Her Honour also found that, at the time of the accident, Ms Fitzsimmons was hurrying and was not looking directly ahead of her, "but rather to the right and up one aisle". As mentioned above, her Honour found that not more than a minute elapsed between Ms Carroll being told by Ms Smith that there was water on the floor and Ms Smith "picking up paper towel or Chux in order to clean it up". It is unclear whether "picking up" referred to the moment when Ms Smith had returned to the site. What is clear is that, however long the period was when the area where the floor was wet was unattended by Coles staff, during the whole of that period the wet floor warning signs were in place, as they had already been displayed in preparation for the floor being mopped to remove the dirty patch.

76 In determining whether Coles had met its duty of care to Ms Fitzsimmons to the appropriate standard, the primary judge considered whether the action of barricading the area to stop shoppers from using it was called for and reasonable in the circumstances. Her Honour was not persuaded that, in order to fulfil its duty to the requisite standard, Coles was obliged to use ropes or barriers to barricade off the area where the cleaning was in process. Again, I interpolate, that was in a context where the area where the dirty patch was to be mopped clean was already demarcated by three wet floor warning signs that warned of the hazard of a slippery floor. The residual wetness on the floor was within that area demarcated by the three wet floor signs and was only left unsupervised by any Coles employee for approximately a minute before Ms Smith returned with a paper towel or Chux to remove the residual water on the floor. Her Honour was of the view that, to fulfil its duty to the proper standard, Coles was only obliged to warn Ms Fitzsimmons, by the placement of adequate signs of a prospective risk, and that Coles did not breach its duty to Ms Fitzsimmons.

77 Section 5G of the Civil Liability Act 2002 relevantly provides that, in proceedings relating to liability for negligence, a person who suffers harm is presumed to be aware of the risk of harm if it was an obvious risk, unless the injured person proves on the balance of probabilities that he or she was not aware of the risk. Section 5H then provides that a person does not owe a duty of care to another person to warn of an obvious risk to that other person.

78 The primary judge concluded that the findings of fact referred to above were conclusive in relation to the reliance by Coles on the provisions of s 5G and s 5H of the Civil Liability Act. Her Honour considered that the determination of whether something constitutes an obvious risk must be made in the context of the findings of fact. Her Honour considered that the obviousness of a risk depends to a significant extent on the circumstances and position of the perceiver. That which is obvious from one position or at one time of day or in some circumstances may not be obvious where those factors change. Her Honour held that, to determine what is obvious in a particular case, it may be useful to take the specific circumstances of the plaintiff into account and then to enquire whether there was some aspect of those circumstances that was not reasonably foreseeable by an occupier. So long as there was no such unforeseeable circumstance, the question of obviousness must, her Honour said, be answered by reference to the particular circumstances of the plaintiff (see Timberland Property Holdings Pty Ltd v Bundy [2005] NSWCA 419 at 25). Accordingly, her Honour found that Coles succeeded in its defence under s 5H of the Civil Liability Act.

79 Nevertheless, the primary judge dealt with Ms Fitzsimmons' case on damages. Her case was that she injured both her ankle and her back in the fall. Her Honour found that whatever injury Ms Fitzsimmons sustained to her ankle had resolved. Prior to the fall, she had had no problem with her back of any significance. The ongoing problems that she claimed she was experiencing were related to her lower back. Her Honour referred to the evidence given by Ms Fitzsimmons that, for the first three months after the fall, her back was very sore and she could not do any housework or care for her young daughter. She therefore moved back with her mother and temporarily separated from her partner. She said that initially she gave custody of the child to her partner because of her physical disabilities. That arrangement apparently ended in May 2011, when her partner was arrested and imprisoned.

80 Ms Fitzsimmons said in evidence that she still gets pain that shoots up her back and into her neck and that it has become more difficult since she became pregnant for the second time. She said she had difficulty sitting for long periods of time. She said that when she sits for a long period of time she tries to sit on her left side so that she does not feel the pain as much. She said that if she sits for too long for two or three hours in the one spot she gets a pinching feeling in her lower back and a burning. She said that if she stands for lengthy periods of time her right leg gets "really weak" and gives out on her. She said she finds it difficult to walk on stairs and hills and does not like doing so as her leg has given out on her a couple of times. She said that her leg in fact gave out on four occasions and that when it did so she would lose most of the feeling to her leg and that it then gives out and she falls back to the ground. Ms Fitzsimmons also said that she had experienced some bladder incontinence since the fall and that she has suffered seizures as a side effect from pain relief medication that she was taking. However, her Honour found that there was no medical support for either of those complaints.

81 The primary judge also referred to evidence given by Ms Fitzsimmons that, after the fall, she had been assaulted by her boyfriend on a number of occasions and required treatment from a general practitioner. She had also been involved in two motor vehicle accidents since her fall in the supermarket. In the second accident, she had had to be cut from the car and taken to hospital. She said that she had hurt her back and stomach in that accident. However, no medical evidence was led as to the injuries she had sustained and the likely effect of those injuries on her back pain.

82 Reports by various medical practitioners were tendered and accepted into evidence, for the most part without objection. The primary judge had before her reports from the following:

• Dr Peter Buchanan, a radiologist;
• Dr T Mathews, a radiologist;
• Dr Alan W Searle, a consultant orthopaedic surgeon;
• Dr Ann Stephenson, a psychiatrist;
• Dr John P H Stephen, an orthopaedic surgeon;
• Dr W A Stening, a consultant neurosurgeon;
• Dr Phil Lucas, a musculoskeletal radiologist;
• Dr Leonard Lee, a consultant medico-legal psychiatrist;
• Ms Coralie Brock, a psychologist; and
• Associate Professor Robert Heard, a neurologist.

83 On 3 June 2010, Ms Fitzsimmons was seen by Dr Alan Searle, a consultant orthopaedic surgeon, for the purpose of independent medical examination. Dr Searle referred to various radiological investigations as follows:

• X-rays of the pelvis on 11 December 2009;
• a CT scan of the lumbar spine on 11 December 2009;
• an MRI of the lumbar spine on 16 December 2009; and
• a bone scan and CT scan on 15 January 2010.

84 Dr Searle expressed the opinion that Ms Fitzsimmons' fall at the supermarket on 6 December 2009 caused a sprain of the right ankle but, more importantly, caused injury to the lumbar spine, including a protrusion of the L5-S1 disc, and also caused autonomic dysfunction in the form of central nociceptive sensitisation, which causes the pain to be felt all the way up the spine and radiating down the right leg. Dr Searle also considered that there was some evidence of radiculopathy, consistent with the bulge of the L5-S1 disc to the right side. He considered that the ongoing symptoms from those injuries were almost certainly permanent and caused a severe degree of disability.

85 Therefore, Dr Searle said, Ms Fitzsimmons was permanently unfit for activities, including work, that require prolonged sitting or prolonged standing, lifting or repeated bending, twisting movements of the trunk, going up and down steps and stairs and slopes or having average agility. He considered there would probably be no change in those conditions with the passage of time. He concluded that her injury had caused a great deal of pain and suffering and severely impaired any social, domestic and recreational activities and any employment prospects on the part of Ms Fitzsimmons. He estimated that, because of the injuries, Ms Fitzsimmons requires domestic assistance that he estimated amounted to about four hours a week on average, including handyman assistance. Dr Searle said that Ms Fitzsimmons would need to visit her general practitioner once a month for prescriptions for her medications and that each visit would probably cost about $70.

86 Dr John Stephen, an orthopaedic surgeon, examined Ms Fitzsimmons on behalf of Coles. Dr Stephen observed that Ms Fitzsimmons was markedly hyper-reactive, wept at times and walked with a "rather bizarre right sided limp". He observed that lumbar movements were performed "in a jerky fashion and were accompanied by weeping". Vertical compression produced a loud complaint of neck pain shooting all the way to the sacrum. Whole body rotation to either side also produced much in the way of complaint. Dr Stephen observed no muscle wasting in the lower limbs. He could not test heel and toe walking as Ms Fitzsimmons complained that she could not put full weight on her right leg because it might give way.

87 Dr Stephen reported that there was marked complaint of pain on testing of superficial tenderness and that "[t]his exaggerated superficial tenderness" was widespread over the sacrum and lumbar region, and was felt not only in the midline but on either side of her spine, extending up to the mid-thoracic region and above. He could not test hip rotation in the prone position because of loud complaints of back pain also accompanied by tears. Ms Fitzsimmons was able to raise both her legs in the straight position to approximately 10 degrees, with complaint of much back pain. However, she was able to sit "almost bolt upright" with her knees not quite fully extended without such complaint.

88 Dr Stephen could find no evidence of any physical basis for the complaints made by Ms Fitzsimmons. He described her symptoms as being "quite bizarre". He considered that complaints of complete numbness in either or both legs and giving way, and of occasional urinary incontinence, were not supported by any physical or radiological findings. The complaint of the pain extending proximally to the thoracic and cervical regions he also described as "bizarre". He considered that the "[w]idespread exaggerated superficial tenderness" was a "well established non-organic finding", as was the complaint of pain on vertical compression and whole body rotation. He described the latter complaint of pain as "a flagrant response". In addition, he found that there was voluntary restriction of lumbar movement and of straight leg raising.

89 Dr Stephen could find no physical relationship between Ms Fitzsimmons' fall in the supermarket and the disabilities she alleged. He could find no physical explanation for Ms Fitzsimmons' complaints. Consequently, he could find no reason why Ms Fitzsimmons should not be fit for pre-accident domestic tasks and chores and pre-accident social and recreational activities. He could find no reason why Ms Fitzsimmons should not be employed as a child care worker. Dr Stephen believed that Ms Fitzsimmons' prognosis for improvement "in terms of actual complaints" was thought to be very poor. Since he could find "no physical basis for Ms Fitzsimmons' complaints", there was, "purely a physical point of view", no reason to consider that the prognosis was anything but good.

90 Dr W A Stening is a consultant neurosurgeon. He saw Ms Fitzsimmons on behalf of Coles on 25 October 2010. After referring to his examination of Ms Fitzsimmons and to references in Dr Searle's report to the CT scan and MRI, Dr Stening said that, without the appropriate images he could not form a firm opinion. He said that Dr Searle's report did not state whether Dr Searle has seen the original CT scans and MRI or only a report of them. Dr Stening said that it was not possible to ascertain whether the disc bulge at L5-S1 was actually real. That bulge was mentioned by Dr Searle in reference to the CT scan of 11 December 2009 and the CT scan of 15 January 2010, but not mentioned at all as being shown by the MRI of 16 December 2009, including as to whether any such bulge was significant or otherwise. Dr Stening said that there were "psychogenic features" present, in that the alteration to Ms Fitzsimmons' sensation in her right leg did not follow a physiological or anatomical pattern. He said that, without access to the imaging, he was not able to give an accurate prognosis.

91 Subsequently, Dr Stening was provided with the various radiological investigations. In a subsequent report, he said that the lumbar CT scan of 11 December 2009 showed very minimal prominence of the L4-5 and L5-S1 disc and that that prominence was centrally placed and "almost within normal limits". He said that there was no evidence of any nerve root compression. He said that the lumbar MRI of 16 December 2009 showed that the disc prominences that were "very minimal" on the lumbar CT scan were even less obvious on the MRI and that certainly there was no evidence of any nerve root compression. Finally, he said that the scan of 15 January 2010, which was "a whole body SPECT/CT" scan, showed that Mr Fitzsimmons' lumbar spine was "entirely normal throughout". Indeed, the only area "of increased uptake", which refers to the uptake of the radionuclide involved in the scan that indicates physiological dysfunction such as would be seen in the case of lumbar disc bulge, was seen in Ms Fitzsimmons' left great toe at its terminal phalanx.

92 Dr Stening's diagnosis was that the radiological investigations were "within normal limits for the average patient". Despite a comment in Dr Searle's report that the lumbar MRI showed a slight narrowing of the L5-S1 disc space, Dr Stening found that any such narrowing was within normal limits. He said that the L5-S1 disc space can normally be narrower than those above it. Dr Stening said that the abnormality of sensation in Ms Fitzsimmons' right leg did not correspond to any physiological or anatomical distribution. Therefore, he said that he could not find a physical cause for her ongoing symptoms. He said that he would defer to the opinion of psychiatrists, but that it was possible that Ms Fitzsimmons had a post-traumatic stress disorder. Dr Stening said that Ms Fitzsimmons' prognosis was that, from a purely physical point of view, she was fit for her normal duties. However, a psychiatrist might state that she was unfit from the point of view of her possible post-traumatic stress disorder.

93 Dr Phil Lucas is a musculoskeletal radiologist. He was asked to offer an opinion on Ms Fitzsimmons' radiological material, to describe the nature of the pathology sustained by Ms Fitzsimmons in her fall at the supermarket and to describe any pathology that may have arisen as a result of that fall. Dr Lucas said that the x-ray of the pelvis and lower lumbar spine of 11 December 2009 showed no evidence of an acute fracture and that the coccygeal segments aligned normally. Dr Lucas said that the CT scan of the lumbar spine of 11 December 2009 showed that alignment was normal and that there was no fracture or any focal bone lesion. He said there was no evidence for any disc protrusion or significant disc bulging and the discs appeared within normal limits. He said that the paraspinal soft tissues appeared normal.

94 Dr Lucas said that the MRI of the lumbar spine of 16 December 2009 showed that the lumbar and lower thoracic discs appeared normal. He said that there was no evidence for any disc protrusion or significant disc bulge, with the posterior portions of the disc margins within the normal range for a patient of Ms Fitzsimmons' age. He said that the spinal cord and cauda equina appeared normal and that the sacrum was unremarkable, with no evidence of a fracture.

95 Dr Lucas said, in relation to the whole body SPECT/CT scan of 15 January 2010, that he did not routinely read nuclear medicine studies. He noted the findings of Dr Peter Buchanan in relation to that scan. He said that that scan seemed to show some increased activity in the sacroiliac joints and in the lumbo-sacral junction. He said that that did not correspond to any of the findings on the plain films (which I take to mean the x-rays), the CT scan or the MRI, which appeared to be within normal limits for a patient of Ms Fitzsimmons' age.

96 Dr Lucas' overall impression of the imaging, being the x-rays, the CT scan and the MRI, was that the imaging was of normal appearance. He could not see any structural injury to Ms Fitzsimmons' spine. As a radiologist, he could not comment on the level of disability, the capacity for employment or domestic activities or the extent of any clinical findings.

97 Ms Fitzsimmons was also assessed by two psychiatrists, Dr Ann Stephenson, for Ms Fitzsimmons, and Dr Leonard Lee, for Coles. The primary judge considered that Dr Stephenson presented a fairer, more detailed and more balanced assessment. Dr Stephenson thought that Ms Fitzsimmons had a depressive disorder, exacerbated by a chronic pain disorder. Her Honour referred to Dr Stephenson's opinion that Ms Fitzsimmons was physically and mentally unfit for her chosen career of child care but that, with psychotherapy and pain management programmes, she would improve her ability to live with and manage her condition. Her Honour referred to Dr Stephenson's opinion, in a supplementary report, that Ms Fitzsimmons' musculoskeletal/neurological impairment and its psychiatric consequences, chronic pain disorder associated with neuropathic pain and significant comorbid depression, continued to impress as substantially the result of the fall at the supermarket on 6 December 2009.

98 The primary judge also referred to Dr Lee's assessment that Ms Fitzsimmons probably had a borderline personality disorder and was therefore likely to be chronically unstable. Though not mentioned by her Honour in her judgment, in relation to Ms Fitzsimmons having borderline personality disorder, Dr Lee noted that Dr Stephenson in her report had commented that while she diagnosed Ms Fitzsimmons with depression, she also considered borderline personality disorder a possibility. Dr Lee noted that Dr Stephenson had said in her report that borderline personality disorder also required consideration, given what Dr Stephenson described as Ms Fitzsimmons' "history of severely impaired attachment in early life and the history of self-injury".

99 Dr Lee did not believe that Ms Fitzsimmons' fall had caused her to suffer from a major depressive disorder, given her presentation and given her history of multiple accidents and symptoms as contrasted with the lack of objective findings. Dr Lee considered that it was difficult to conclude that the fall in the supermarket in December 2009 had caused any psychiatric disorder in Ms Fitzsimmons, referring to the various opinions of Dr Stephen, Dr Stening and Dr Searle. Regardless of whether any depressive disorder was caused by that fall or not, Dr Lee found that there was no objective evidence of clinical depression and that Ms Fitzsimmons' background history of abuse and neglect and a chaotic life history was consistent with borderline personality traits. Dr Lee said that persons with borderline personality traits tend to complain of pain and other physical symptoms in the absence of organic causation.

100 Dr Lee said that it was "difficult to form a dogmatic view" as to Ms Fitzsimmons' fitness for pre-accident domestic tasks and chores and pre-accident social and recreational activities, as people with borderline personality traits typically are "frequently unreliable historians". He considered that people with borderline personality traits are typically unsuited for work as child care workers due to their chronic instability. He considered that Ms Fitzsimmons' prognosis was guarded, since dysfunctional personality traits tend to be lifelong.

101 While the primary judge accepted that Ms Fitzsimmons experienced some pain or discomfort, her Honour did not accept that Ms Fitzsimmons had an ongoing and severe disability occasioned by her fall in the supermarket. While her Honour accepted that Ms Fitzsimmons had pain in her back, spine and leg, her Honour was not satisfied that it was caused by her fall.

102 Mr Craig Martin, a rehabilitation counsellor, provided a written assessment of Ms Fitzsimmons' current occupational earning capacity. Mr Martin concluded that Ms Fitzsimmons currently has insufficient marketable skills, abilities and knowledge with which to seek employment as a sales clerk, enquiry clerk or clerical or office support worker on the open labour market and would require retraining. Mr Martin identified those vocational positions as appropriate vocation options for Ms Fitzsimmons. He said that Ms Fitzsimmons would require training in computer operating systems and software, administrative and clerical and office procedures and terminology. He considered that Ms Fitzsimmons was likely to have difficulty undertaking studies in order to be competitive in the open labour market in a clerical role, given her reported symptoms, functional abilities and her psychological status. Mr Martin concluded that, given her current circumstances, it was highly unlikely that Ms Fitzsimmons would complete any recommended retraining and become a qualified job seeker. He said that, even if Ms Fitzsimmons were able to complete the recommended retraining, he had reservations about her ability to sustain employment as a sales clerk, enquiry clerk or clerical and office support worker, because her expressed vocational interest was as a child care worker, not performing clerical type work.

103 Mr Martin concluded that Ms Fitzsimmons, at the time of his report, was not employable on the open labour market and had no earning capacity such that her calculated weekly earnings capacity was zero dollars per week. Mr Martin considered that Ms Fitzsimmons would probably have attained employment as a child care worker.

104 Ms Jacqueline Henry, an occupational therapist, provided a report on Ms Fitzsimmons on 13 August 2010, which assessed her daily living and care needs. Ms Henry was provided with Dr Searle's report but none of the other reports. Ms Henry concluded that Ms Fitzsimmons' presentation during assessment was consistent with "the reports", the clinical evidence and with Ms Henry's expectations, given the injury description, diagnosis and prognosis. Ms Henry concluded that Ms Fitzsimmons' daily life was severely restricted, her condition prevented her from caring for her infant daughter and that she was suffering symptoms of psychological distress.

105 Ms Henry reported that Ms Fitzsimmons was physically incapable of independently performing all aspects of daily life activity, including managing routine domestic chores, activities related to physical child care, travelling around the community and participating in social, recreational or anticipated employment related activities. Ms Henry made recommendations as to the type and extent of domestic assistance that Ms Fitzsimmons would most likely need in the future.

106 The primary judge considered that there were many troubling aspects to Ms Fitzsimmons' evidence. She presented to many medical practitioners and to the occupational therapist consultant as extremely disabled and unable to perform even basic daily tasks. Her Honour considered that that was at odds with her presentation in the witness box, with answers she gave to the Commonwealth Government job capacity assessor and with answers she gave to a physiotherapist whom she saw on 24 May 2010.

107 The job capacity assessor's report appears to record an interview with Ms Fitzsimmons that occurred on 17 June 2010. The report says that Ms Fitzsimmons indicated that she lives with her mother, who has a physical disability and serious psychiatric issues, including schizophrenia. Ms Fitzsimmons indicated that she had no assistance in caring for her mother and was responsible for managing the household finances, paying bills, shopping, managing her mother's medication, accompanying her mother to appointments, cooking and cleaning and assisting her mother with self-care, such as reminding her to eat and assisting her out of the shower.

108 The primary judge also referred to a record made by a physiotherapist on 24 May 2010 that Ms Fitzsimmons was much improved and only very occasionally had a "spasm", presumably of her back. The record indicated that she was able to run, do sit ups and pick up her child. Ms Fitzsimmons was advised to continue core stability exercises for another month or so and to incorporate them into all her activities, such as by walking up steps. The note recorded that no further physiotherapy input was needed and that Ms Fitzsimmons was managing herself well.

109 The primary judge concluded that there was a degree of exaggeration by Ms Fitzsimmons of her symptoms, particularly when she was presenting to various medical practitioners. Her Honour was not persuaded that there was underlying pathology that was consequential upon the fall at the supermarket on 6 December 2009. Her Honour therefore found that Ms Fitzsimmons had not established a nexus between the fall and her current symptoms.

110 That appears to be a finding that, whether or not Coles breached a duty of care owed to Ms Fitzsimmons, as a customer in its supermarket, any symptoms that she presently has are not causally related to the fall that she suffered. Nevertheless, her Honour proceeded to assess damages in case her Honour's conclusion on liability was incorrect, that is, that Coles did breach its duty to Ms Fitzsimmons.

111 The primary judge concluded that, since there was no demonstrable nexus between the fall and the pain of which Ms Fitzsimmons complained, nothing should be allowed for general damages. Ms Fitzsimmons claimed that she should be awarded general damages in the amount of 30 per cent of the most extreme case, as provided for in s 16 of the Civil Liability Act. Coles, on the other hand, contended that, if such an assessment should be made, 5 to 10 per cent would be more appropriate.

112 Under s 16(1) of Civil Liability Act, no damages may be awarded for non-economic loss, unless the severity of the non-economic loss is at least 15 per cent of a most extreme case. If the severity of the non-economic loss be equal to or greater than 15 per cent of a most extreme case, the damages for non-economic loss are to be determined in accordance with the table set out in s 16(3). Although the primary judge did not make any findings in terms of s 16, it is tolerably clear that her Honour concluded that, apart from the lack of causal connection, the severity of any non-economic loss suffered by Ms Fitzsimmons was less than 15 per cent of a most extreme case.

113 Her Honour then considered the question of past economic loss. Her Honour found that Ms Fitzsimmons had never worked outside the home. Her Honour concluded from reading the psychiatric assessments that Ms Fitzsimmons, in all probability, would not have worked in the future, irrespective of her fall in the supermarket. Ms Fitzsimmons gave evidence about an ambition to open a family day care centre in the home of a friend. The only document evidencing Ms Fitzsimmons' qualifications was a certificate of partial completion of the requirements of a certificate in children's services. Her Honour found that there was no evidence of concrete plans on the part of Ms Fitzsimmons for the establishment of such a family day care centre. There was no business plan, no enrolment forms, no application for registration as a business and no application for a licence to operate such a centre. Her Honour concluded that Ms Fitzsimmons' ambition to run a family day care centre was not realistic.

114 The primary judge concluded that it was unrealistic to suggest that Ms Fitzsimmons would be able to take any managerial role in a child care centre. She was not working at the time of the fall and had never worked or applied for a job. She had merely looked at the newspaper to see if there were any jobs in which she was interested. While she had had a child by the age of 17, from shortly after the fall until May 2011 she relinquished the care of her child to her partner. Her Honour concluded that nothing should be allowed for past economic loss.

115 The primary judge said that, in order to be satisfied that Ms Fitzsimmons' earning capacity had been affected, it would be necessary for her to be satisfied that Ms Fitzsimmons continued to suffer from injuries sustained in the fall and that the injuries would impact upon her ability to earn an income. Her Honour was not so satisfied and therefore allowed nothing for future economic loss.

116 Her Honour referred to Ms Fitzsimmons's evidence that there were many household activities that she could no longer perform. However, there was no evidence that anyone provided care for her. Rather, there was evidence that she told the Commonwealth Government job capacity assessor that she was responsible for managing the household finances, paying bills, cooking and cleaning and assisting her mother with self-care. Her Honour referred to the absence of evidence from Ms Fitzsimmons that she would obtain domestic assistance if it were allowed by the court. In any event, her Honour was not persuaded that Ms Fitzsimmons required paid care to assist her in her activities of daily living.

117 The primary judge concluded, from the history and observations recorded by Ms Henry, that Ms Fitzsimmons was greatly exaggerating her symptoms, having regard to her Honour's own assessment of Ms Fitzsimmons in the witness box. Once again, her Honour took into account her own observations of Ms Fitzsimmons in reaching a conclusion as to her capacity.

118 The parties agreed that Ms Fitzsimmons' out of pocket expenses as a result of the fall amounted to sum of $1,773. Her Honour would have allowed that sum as damages, if she had concluded that Coles was liable to Ms Fitzsimmons. However, her Honour was not persuaded that Ms Fitzsimmons required recompense for future medical expenses. Ms Fitzsimmons said that she was not going to return to physiotherapy and denied any current use of pain medication, other than analgesics. Accordingly, her Honour concluded that Ms Fitzsimmons, if Coles were liable, would be entitled to damages in the sum of $1,773. Her Honour made no finding as to contributory negligence on the part of Ms Fitzsimmons.

The appeal

119 In her notice of appeal filed on 5 July 2012, Ms Fitzsimmons relies on the following grounds:

(1) Her Honour gave no or inadequate reasons for preferring the witnesses called by Coles on liability over the evidence of Ms Fitzsimmons as to the position and number of warning signs.

(2) Her Honour erred in finding that there were three warning signs in place.

(3) Her Honour gave insufficient weight to the objective facts discernible from the CCTV footage of Ms Fitzsimmons' fall.

(4) Her Honour erred in holding that the risk of injury was obvious within the meaning of the Civil Liability Act.

(5) Her Honour gave no or inadequate reasons for rejecting the lay and medical evidence on quantum adduced on behalf of Ms Fitzsimmons.

(6) Her Honour's assessment of damages was outside the boundaries of any reasonable exercise of discretion.

(7) Her Honour erred by failing to determine a percentage for non-economic loss under s 16 of the Civil Liability Act.

120 In essence, the questions on the appeal are as follows:

(1) Whether Coles was in breach of a duty of care that it owed to Ms Fitzsimmons and other customers in the supermarket by failing to respond to the risk of injury from the wet floor by requiring a supervisor, such as Ms Carroll, to stand by the area until Ms Smith returned with paper towels or Chux, in order to warn customers of the danger or to prevent customers from entering the area.

(2) Whether, if Coles were in breach of its duty, Ms Fitzsimmons was responsible to some extent for her fall and, if so, to what extent.

(3) Whether the evidence of Ms Fitzsimmons, Dr Searle, Mr Martin and Ms Henry, on the balance of probabilities, indicates that Ms Fitzsimmons is entitled to damages for non-economic loss, being pain and suffering, loss of amenities of life, loss of expectation of life or disfigurement, as a result of the fall and, if so, what proportion does the severity of that non-economic loss bear to a most extreme case.

Liability

121 I do not consider that a basis has been established for interfering with the factual conclusion of the primary judge that three wet floor warning signs were displayed around the part of the floor of the supermarket that was wet. Her Honour made an assessment of the credibility of the three witnesses called to give evidence on behalf of Coles and accepted Ms Hands, in particular, as a reliable witness. Certainly, Ms Hands was not responsible for deploying the wet floor warning signs and saw them only after Ms Fitzsimmons had fallen. However, it was not suggested to any of the witnesses that the number or location of the wet floor warning signs was changed after Ms Fitzsimmons fell. Accordingly, the conclusion by her Honour that there were three wet floor warning signs forming a roughly triangular shape around the affected part of the floor should be accepted.

122 As the operator of its supermarket, Coles was under a duty to take reasonable care to avoid foreseeable risk of injury to persons coming into the supermarket. That duty extended to a requirement to have in place such precautions against risk of harm through slipping as, in the circumstances, a reasonable person in the position of Coles would have put in place.

123 The conclusion of the primary judge concerning s 5G and s 5H of the Civil Liability Act may involve a misapprehension. The effect of s 5H is that Coles would not be required to warn Ms Fitzsimmons of the risk of her slipping on the wet floor, if it were an obvious risk to Ms Fitzsimmons. The fact that Coles took steps to warn its customers of the risk of slipping on the wet floor was an acceptance by Coles that the risk was not an obvious one. Coles accepted that it was under a duty to warn customers of the risk constituted by the wet floor. The question is whether it took adequate steps to do so. Her Honour found that Coles had adequately warned Ms Fitzsimmons and, accordingly, was not in breach of its duty of care to her as a customer of its supermarket. That led to the verdict for Coles.

124 For Ms Fitzsimmons to succeed in establishing that Coles was in breach of duty, it would be necessary for her to demonstrate that the operator of a supermarket in the position of Coles would have taken the precaution of stationing someone near the wet floor, in addition to the three wet floor warning signs, in order to warn customers away and that Coles' failure to take that extra precaution was a necessary condition of the occurrence of Ms Fitzsimmons' fall. Counsel for Ms Fitzsimmons contended that, even if the finding as to the deployment of the three wet floor warning signs were to stand, the primary judge nevertheless erred in concluding that Coles was not in breach of its duty owed to Ms Fitzsimmons. The contention was that a reasonable response would have been for Ms Carroll to have stood by the affected area, while Ms Smith obtained paper towels or Chux, in order to warn customers who either ignored or failed to see the warning signs. To do so would not have involved any great burden for Coles or Ms Carroll, in that it would be expected that Ms Smith would return within a matter of minutes with the means to remove the water from the floor. Ms Smith in fact returned within approximately a minute.

125 There is no doubt that the risk of slipping on the wet floor was a risk foreseeable by Coles. Indeed, it foresaw that risk. The question is whether it took adequate precautions to warn its customers of the presence of the risk. While it would have been possible to take the additional step of stationing an employee nearby, I do not consider that in failing to do so it was in breach of its duty to Ms Fitzsimmons, as one of its customers, to take reasonable care for her safety. The three wet floor warning signs were clearly visible and were adequate to alert any customer taking reasonable care for his or her own welfare to the presence of the risk.

126 It may be accepted that it is common for customers in the supermarket to be hurrying. It may also be accepted that it is common for customers not to be looking at the floor, but to be looking at the goods stocked on shelves or at signs indicating the location of particular goods. It might also be accepted that some customers might have responsibility for small children and could indeed be carrying a child. Nevertheless, I am not persuaded that Coles owed a duty to such customers beyond the placement of three clear and obvious warning signs that there was water on the floor and that that may be a hazard. I am not persuaded that the duty of Coles to warn customers that there was a hazard extended beyond what was actually done. I do not consider that the primary judge erred in the conclusion that her Honour reached on the question of liability.

Damages

127 In the light of the conclusion reached concerning liability, it is not necessary to consider the other issues raised in the appeal. However, since other members of the Court have reached a different conclusion on the question of liability, it is desirable to say something about the questions of quantum raised in the appeal.

128 The medical evidence before the primary judge is summarised above. Her Honour also recorded that she had had the opportunity of closely observing Ms Fitzsimmons when she gave evidence. She walked unaided and without any sign of disability from the body of the court to the witness box and back. Her Honour said that Ms Fitzsimmons sat in the witness for almost three hours without a break and that she did not shift position or complain of any discomfort in that period. Her Honour said that it was possible that Ms Fitzsimmons was being stoical, but that that explanation did not conform with the way in which she presented to various medical practitioners. Her Honour said that Ms Fitzsimmons could be assessed only on how her Honour observed her to be and in accordance with the evidence.

129 The primary judge and counsel for Coles both asked Ms Fitzsimmons whether she had taken any medication. She denied having done so on the day she gave evidence. In the course of oral argument, her Honour referred to the fact that Ms Fitzsimmons was in the witness box for about an hour and a half and did not appear to be in any discomfort.

130 There does not appear to have been any submission made on behalf of Coles that Ms Fitzsimmons did not shift position or complain of any discomfort while she was in the witness box. Further, the primary judge's reference to a period of almost three hours without a break appears to be mistaken. So far as is possible to discern from the transcript, Ms Fitzsimmons was in the witness box for no more than one and a half hours on one occasion and three quarters of an hour on another, with the luncheon adjournment interposed.

131 There is no doubt that a trial judge is entitled to take account of observations of a witness or a party in the courtroom and, in particular, is entitled to rely on observations of a plaintiff, both while in the witness box and when sitting in the courtroom, in order to assess the level of pain or disability that the plaintiff appears to be suffering. If the plaintiff moves with a degree of agility, or without apparent discomfort, that may be treated as inconsistent with claims of disability or discomfort made to medical practitioners or in evidence. On the other hand, apparent disability or discomfort exhibited in the courtroom may be compared with other evidence of the conduct of a plaintiff behaving without appearance of disability or discomfort. Nevertheless, such an exercise must be approached with caution, because of the possibility that a medical condition may fluctuate. A person unfamiliar with a courtroom environment may react differently in the courtroom compared with outside the courtroom. Thus, judges must not endeavour to assess the medical condition of witnesses from their own observations (Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353 at [31]-[32] (Chaina)). Such observations should be limited to matters such as have been briefly described above.

132 However, whatever use a judge makes of observations of a plaintiff in the courtroom or the witness box, questions of procedural fairness must always be borne in mind. If a judge proposes to take into account observations made by the judge of the plaintiff in the courtroom or in the witness box, it is incumbent upon the judge to inform both parties of the possible use that might be made of those observations. Either party may wish to adduce further evidence to rebut inferences, or make submissions as to the inferences that should or should not be, drawn from the observations by the judge. If the defendant wishes to rely on such matters, it would be incumbent upon the defendant to put those matters to the plaintiff in cross-examination, for the same reason of procedural fairness (see Chaina at [33]).

133 In the course of cross-examination of Ms Fitzsimmons, counsel for Coles asked her whether she was on any medication on the day of the trial. She responded that she takes codeine, but does not like taking it because the doctor said it could do damage to her baby. She was pregnant at the time of the trial. She denied that she had taken any codeine on the day on which she gave evidence. Later in the course of cross-examination, just before the luncheon adjournment, the primary judge also asked Ms Fitzsimmons whether she had taken any medication or drugs that day. Ms Fitzsimmons said that she had not. The primary judge asked a further question as to whether Ms Fitzsimmons had taken medication for her back. Ms Fitzsimmons responded "[n]othing".

134 On the second, and last, day of the trial, before counsel for Coles addressed specific heads of damage, the primary judge referred to the fact that Ms Fitzsimmons had been asked whether she had taken any medication on the day before when she gave evidence and to the fact of her quite strong denial. Her Honour asked counsel for Coles whether she could take into account the fact that Ms Fitzsimmons had been in the witness box for about an hour and a half and did not appear to be in any discomfort. Counsel for Coles responded that her Honour could do so.

135 Having referred to her own observations of Ms Fitzsimmons in the witness box, the primary judge then dealt with the medical evidence summarised above. The medical evidence was somewhat unsatisfactory. As I have indicated, several reports were produced and tendered by the parties. There appears to have been no objection as to the admissibility of their reports, notwithstanding apparent failure to satisfy the requirements of s 79 of the Evidence Act 1995. Further, notwithstanding the conflict between opinions, none of the medical practitioners was cross-examined.

136 Where there is a conflict between the opinions expressed by medical experts in written reports and there is no cross-examination of the experts, it will often be very difficult for a court to resolve the conflict. In some cases it can be shown on the face of one or other of the reports that there is some obvious error or want of logic in the reasoning of the expert. In such cases, the court may be able to resolve the conflict. Otherwise, the deficiency in the assistance given to the court can redound to a plaintiff's detriment if the plaintiff fails to satisfy the onus of establishing, on the balance of probabilities, that a particular medical condition exists and that there is some causal connection between that medical condition and the circumstances alleged to give rise to liability on the part of a defendant. Nevertherless, it seems to be a not uncommon practice for medical reports and medical records to be tendered without oral evidence when there are conflicts in the evidence. In such situations, it is left to the court to attempt to determine, in the absence of the assistance to which it is entitled, what, if any, weight should be given to a particular report and to resolve conflict between the so-called experts (see Morvatjou v Moradkhani [2013] NSWCA 157 at [111] and P&M Quality Smallgoods Pty Ltd v Leap Seng [2013] NSWCA 167 at [104]).

137 In the present case, there were in excess of 125 pages of reports from radiologists, orthopaedic surgeons, neurosurgeons and psychiatrists, as well as medical notes from hospital admissions and physiological and rehabilitation counsellors. In circumstances where Ms Fitzsimmons invites the court to find that she is entitled to damages of some hundreds of thousands of dollars or more, a trial court is entitled to expect a detailed analysis of the medical evidence. It is not clear that the primary judge received such an analysis in the present case. When the evidence is left in such a state such as that in the present case, the consequence may be that a plaintiff will fail to discharge his or her onus of proving that a particular medical condition exists and that that condition is causally related to the incident said to give rise to a defendant's liability.

138 There are good grounds for concluding that the primary judge erred in her Honour's treatment of the conduct of Ms Fitzsimmons in court and in the witness box. Ms Fitzsimmons was not cross-examined about her ability to sit in the witness box without apparent discomfort for an extended period of time, much less the period of time for which her Honour found she had been in the witness box. Further, the fact that none of the evidence of the medical practitioners was tested by cross-examination casts doubt on the weight that should be given to the material.

139 On the other hand, the overwhelming impression created by the evidence as a whole is that Ms Fitzsimmons does not suffer incapacity anywhere near the extent that she claims. Even if Coles were found to be liable for the fall that Ms Fitzsimmons suffered, I am not satisfied that the trial judge erred in her conclusion concerning Ms Fitzsimmons' degree of disabilities. To the extent that she suffers continuing disability, I am also not satisfied that the trial judge erred in her conclusion that that disability has no causal connection with the fall that occurred in the Coles supermarket.

140 Even if Ms Fitzsimmons has suffered non-economic loss as a result of her fall, the evidence indicates that loss was well below 15 per cent of a most extreme case. The objective medical evidence indicates that any disability presently suffered by Ms Fitzsimmons was far less extreme than she had endeavoured to make out in the course of her assessments by various medical and other consultants.

Conclusion

141 On one view, leave to appeal was required, although, if Ms Fitzsimmons were to succeed on all of her claims, she would recover in excess of $100,000. The grant of leave was not opposed. To the extent that leave is necessary, I would be disposed to grant leave nunc pro tunc, notwithstanding the absence of any formal application. The appeal should be dismissed. Ms Fitzsimmons should be ordered to pay Coles' costs of the appeal.

142 McDOUGALL J: I have read in draft the judgments of Basten JA and Emmett JA. Their Honours have set out: the relevant facts; the findings and reasoning of the primary judge; the issues on appeal; and the parties' submissions on appeal. I shall not repeat what their Honours have said.

Breach of duty of care

143 I agree with Basten JA, in substance for the reasons that his Honour gives, that, contrary to the conclusion of the primary judge, the respondent (Coles) breached its duty of care to the appellant (Ms Fitzsimmons). My reasons for coming to that conclusion can be stated briefly.

144 Coles' employees were aware of the dangerous situation represented by the wet floor. That is why they placed three (as the primary judge found) "wet floor", or warning signs around the area that remained damp. And that is why Ms Carroll directed Ms Smith "to get a chux or a paper towel or something to dry it up".

145 The precautions that Coles took, to warn those in the vicinity of the wet floor of the danger created thereby, were adequate to warn people who were watching where they were going. They were not adequate to warn people who were (as Ms Fitzsimmons was) looking up the aisles to see where the goods which they sought were located. As Basten JA says at [12], that is not remarkable.

146 I agree, for the reasons Basten JA gives at [14], that there was a risk, which was both foreseeable and foreseen, that in the particular circumstances of this case, the exercise of reasonable care required that Ms Carroll, or someone under her instructions, stay beside the area of the wet floor to warn customers, and to direct them away.

Contributory negligence

147 I do not agree with Basten JA's conclusion, at [21], that an appropriate apportionment of responsibility is 75% to Coles and 25% to Ms Fitzsimmons.

148 There were, essentially, two equally effective causes of the accident that Ms Fitzsimmons suffered. The first was the failure of Coles to take precautions to warn its less attentive customers of the risk of danger. The second was the failure of Ms Fitzsimmons to look where she was going, and thus to observe, and pay attention to the danger indicated by, the three bright yellow warning signs.

149 In those circumstances, I would apportion responsibility for the accident at 50% to Coles and 50% to Ms Fitzsimmons.

Causal connection between accident and alleged ongoing disabilities

150 I turn to the question of whether Ms Fitzsimmons has demonstrated that there is a causal connection between the accident which occurred and the disabilities of which she now complains.

151 I start by observing that in substance, I agree with the conclusion expressed by Emmett JA at [139] that "the overwhelming impression created by the evidence as a whole is that Ms Fitzsimmons does not suffer incapacity anywhere near the extent that she complains".

152 Further, I agree with Emmett JA at [139], substantially for the reasons that his Honour gives, that in any event Ms Fitzsimmons has not demonstrated that any of the disabilities of which she now complains are causally related to the accident on 9 December 2009. Again, I can express briefly my own reasons for coming to that conclusion.

153 This is not a case where, if it is accepted that the plaintiff does suffer from some disabilities of the kind alleged, the accident must have been the cause, simply because there were no other intervening events capable of explaining those disabilities. On the contrary, in this case, Ms Fitzsimmons had been involved in two motor vehicle accidents after 9 December 2009.

154 In the first of those accidents (said to have occurred in about April 2011), Ms Fitzsimmons, on her own evidence, suffered injury to, and apparently some disability of, her back and a leg.

155 The second of those accidents (said to have occurred in August 2011) appears to have been severe. Ms Fitzsimmons said, as Basten JA recounts at [43], that she had to be cut from the car and taken to hospital. Again, Ms Fitzsimmons appears to have suffered injuries and disabilities similar to those which she said she sustained as a result of the fall at the Coles Gorokan Supermarket.

156 In addition, Ms Fitzsimmons had been involved in incidents of domestic violence, in at least one of which, she agreed, she injured her back.

157 The only medical evidence of any physical basis for, or explanation of, the pain and disability of which Ms Fitzsimmons now complains came from Dr Searle, an orthopaedic surgeon. Dr Searle said, based on the results of prior radiological investigations, that as a result of the fall on 9 December 2009, Ms Fitzsimmons sustained injury to the lumbar spine, including a protrusion of the L5-S1 disc. It was his view that the disabilities of which Ms Fitzsimmons complains were consistent with that injury. It is not clear whether Dr Searle viewed the actual films that were taken, or whether he saw only the reports of the radiologists.

158 As against that, Dr Stening, a consultant neurosurgeon, having examined both the reports and the actual films, said that there was only minimal prominence of the disc, "almost within normal limits", and no evidence of any nerve root compression. Indeed, Dr Stening said, on one particular scan, the lumbar spine was "entirely normal throughout". In Dr Stening's view, there was no physical cause for Ms Fitzsimmons' complaints.

159 Dr Lucas, a musculoskeletal radiologist, expressed similar views to Dr Stening. He said that he did not see, on the scans and films that he examined, any evidence of disc protrusion or significant disc bulging.

160 Dr Searle had read reports prepared by two radiologists, Dr Mathews and Dr Buchanan. The results of their investigations were before the primary judge. On 11 December 2009, Dr Mathews reported "a broad based disc bulge at L5-S1 level with ... impingement of the exiting nerve root on the right side" and "a broad based disc bulge at L4/5 level".

161 Five days later, on 16 December 2009, Dr Mathews reported the same broad based disc bulges, but said that the bulge at L5-S1 level "does not cause... impaction of the existing nerve roots". On that date, he characterised these as "minor disc bulges" which "do not cause significant impaction of the exiting nerve roots".

162 On 15 January 2010, Dr Buchanan reported "a mildly active diffuse disc bulge at the lumbar sacral junction", but expressed no view as to whether that "could explain clinical symptomatology".

163 Associate Professor Heard, a neurologist, examined Ms Fitzsimmons on 17 August 2010, on the referral of her general practitioner. He reported "no radicular findings on today's examination" and said that "her neurological examination today is unremarkable".

164 Dr Stephen, an orthopaedic surgeon, could see no abnormalities in the scans that were given to him. He said that there was "no evidence of any physical basis for Ms Fitzsimmons' complaints" and that "[h]er symptoms are quite bizarre". He said that there was no physical or radiological evidence to support her complaints of disability.

165 As Basten JA and Emmett JA have observed, the medical practitioners were not cross-examined. Thus, the primary judge did not have the advantage of hearing (for example) what Dr Searle would say in relation to the views expressed by Dr Stening and Dr Lucas; nor did her Honour have the advantage of hearing what Dr Stening and Dr Lucas would say as to the views expressed by Dr Searle.

166 Emmett JA has set out (at [83] to [101]) in greater detail the findings of the various medical practitioners, including the two psychiatrists Dr Stephenson and Dr Lee, by whom Ms Fitzsimmons was treated or assessed. I adopt his Honour's summary of those matters.

167 Emmett JA has also referred to a job capacity assessment interview and report (see at [106], [107]), and to the report of a physiotherapist who appeared to conclude that Ms Fitzsimmons did not have significant ongoing disability as at May 2010 (at [108]).

168 Thus, the primary judge was faced with the following situation:

(1) even if her Honour had concluded that Ms Fitzsimmons did suffer from at least some of the ongoing disabilities of which she complained, there were incidents subsequent to 9 December 2009 which could explain the existence of those disabilities;

(2) there was a very sharp division in the medical evidence, as to whether in fact Ms Fitzsimmons was suffering from ongoing physical disability ("yes" according to Dr Searle, but "no" according to Dr Stephen);

(3) there was an equally sharp division in the medical evidence as to whether there were any observable physical causes for the disabilities complained of (Dr Searle was the only specialist who would say "yes");

(4) there was also evidence which, if accepted, would suggest that Ms Fitzsimmons was greatly exaggerating her symptoms, and in fact did not suffer from the disabilities complained of - at least, to anything like the extent complained of; and

(5) none of the medical specialists whose evidence was in conflict had been cross-examined.

169 The primary judge was required to decide whether, on the evidence that was before her, Ms Fitzsimmons had discharged the onus of showing, on the balance of probabilities, that she did indeed suffer from ongoing disabilities referable to the accident on 9 December 2009. I repeat that this is not a case where, in the absence of any other cause, acceptance of Ms Fitzsimmons as a witness of truth could support a finding as to the existence of the necessary causal link.

170 The primary judge was entitled to take the view that the overwhelming weight of the medical evidence favoured the proposition that there was no causal link. The evidence of radiological and other examinations is inconsistent with the opinion expressed by Dr Searle, as to the existence of a significant disc protrusion at the L5/S1 level causing nerve root compression. The neurological evidence is flatly against that conclusion. And the evidence of Dr Stephen, if accepted, would support the conclusion that Ms Fitzsimmons was exaggerating her complaints, and behaving in a "bizarre" way in an attempt to give them some appearance of verisimilitude.

171 This court is in as good a position as was the primary judge to consider what conclusion to draw from the medical evidence. In my view, that evidence supports the conclusion that there is no demonstrated physical cause of the disabilities of which Ms Fitzsimmons complains. As I have noted (and as is dealt with in greater detail by Emmett JA), there is evidence from others which is consistent with that conclusion.

172 But it is not necessary to go so far. It is sufficient to say that, in my view, it could not be said, based on the evidence before the primary judge, that Ms Fitzsimmons had discharged the onus, which lay upon her, of proving the necessary causal link between the accident on 9 December 2009 and the ongoing disabilities of which she complains.

173 I accept, as Basten JA says at [23], that it is for the parties to run the trial as they see fit. But if, as a consequence of a decision made (whether for forensic reasons, economic reasons or others is irrelevant), relevant evidence is not called or not tested, and as a result the tribunal of fact is left in a position where it cannot be satisfied that the party bearing the onus on a particular issue has discharged it, the responsibility for, and consequences of, that decision must remain with that party.

174 The result, in my view, is that Ms Fitzsimmons has failed to prove damage beyond the agreed amount of out-of-pocket expenses, $1,773.00.

175 I agree with Basten JA and Emmett JA that the primary judge erred in the way that she made use of her observations of Ms Fitzsimmons during the trial. If that were a decisive factor in the outcome then, I would agree, there should be a new hearing. But since, in my view, Ms Fitzsimmons has in any event failed to make good her claim for damages over and above the out of pocket expenses, there is no reason to order a retrial.

Conclusion

176 Since, in my view, the primary judge erred in finding that Coles had not breached its duty of care to Ms Fitzsimmons, I would not oppose the grant of leave to appeal. On that basis, I would substitute, for the verdict and judgment in favour of Coles, a verdict in favour of Ms Fitzsimmons in the sum of $886.50, with judgment for that amount together with interest. Interest can be accommodated by backdating the judgment to 5 April 2012, the date on which the primary judge gave judgment.

177 By no stretch of the imagination could that be regarded as success on the appeal. Accordingly, I would propose that the appeal otherwise be dismissed and that Ms Fitzsimmons pay Coles' costs of the appeal. I would not disturb the order as to costs made by the primary judge.

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Decision last updated: 29 August 2013