MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: / Jenny Korda vAldi Foods Pty Limited and Brice Australia (NSW) Pty Limited
Citation: / [2016] ACTMC11
Hearing Dates: / 27 - 28 September 2016
DecisionDate: / 2 November 2016
Before: / Magistrate Theakston
Decision: / 1.Judgment is entered for the plaintiff in the sum of $56,054.93.
2.The usual order as to interest, as described at r 1622 of the Court Procedures Rules 2006.
3.The defendant pay the plaintiff’s costs of the proceedings.
4.Order 3 does not take effect if within seven days of this order either party notifies my associate that it wishes to be heard in relation to alternative orders as to costs.
Category: / Decision
Catchwords: / NEGLIGENCE –Occupiers liability – Standard of care – Shopper injured when shopping trolley collided with automatic gate– Precautions to avoid risk –Whether defendant negligent in not providing warning notice that gate does not always open – Contributory negligence
Legislation Cited: / Civil Law (Wrongs) Act 2002ss 42, 43, 44, 45, 46, 102,168
Court Procedures Rules 206, r 1622
Cases Cited: / Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
Bailey v Lend Lease Fund Management Ltd [2013] ACTSC 56 (5 April 2013)
Brozinic v ISS Facility Services Australia Ltd [2014] ACTSC 8 (7February 2014)
Jones v Bartlett (2000) 205 CLR 166
Neindorf v Junkovic (2005) 80 ALJR 341
Shaw v Thomas [2010] NSWCA 169 (23 July 2010)
Vairy v Wyong Shire Council (2005) 223 CLR 422
Wyong Shire Council v Shirt (1980) 146 CLR 40
Texts Cited: / Britts, Comparable Verdicts in Personal Injury Claims, The Law Book Company Limited
Parties: / Jenny Korda (Plaintiff)
Aldi Foods Pty Limited (ACN 086 210 239) (Defendant)
Brice Australia (NSW) Pty Limited (ABN 83 055 370 539) (Third Party
Representation: / Counsel
Mr D Richards (Plaintiff)
Mr W Sharwood(Defendant)
Mr J Pappas (Third Party)
Solicitors
Maliganis Edwards Johnson(Plaintiff)
McCabes Lawyers(Defendant)
Sparke Helmore (Third Party)
File Number: / CS504 of 2015

MAGISTRATE THEAKSTON

Introduction

1.This is a personal injury negligence claim against the defendant as the occupier of the Canberra Centre Aldi Store. The incident occurred on 19 December 2013. The defendant in turn sought indemnity or contribution from the third party as the installer and repairer of the entry gates at the Aldi store. At the commencement of the hearing the defendant withdrew its claim against the third party, and the third party took no further part in the proceedings.

2.The plaintiff is a 64 year old single woman employed as an Australian public servant. She was 62 years old at the time of the incident. The defendant was and remains the occupier and operator of the Aldi store.

3.The incident can be described initially as follows. The plaintiff entered the store while pushing a shopping trolley.The trolley collided with a swinging entry gate that failed to open automatically. The plaintiff struck her lower left shin against the trolley. The plaintiff experienced significant pain and subsequently developed a large infected haematoma at the injury site, which required debridement surgery, followed by a skin graft. The plaintiff has been left with a large, permanentdisfigurement at the site, which has no sensation, and a significant phobia about re-injuring the site.

Pleadings

4.The plaintiff pleadedthat the defendant had a duty to protect the plaintiff’s safety as the occupier of the premises, the defendant breached that duty by reason of the state and operation of the gate assembly, including failing to give any warning that the gates were not operating correctly, and the plaintiff consequently suffered the above injuries and disabilities with associated economic loss.

5.The defendant’s pleadings did not admit the existence of the duty, admitted the incident did occur, but denied any breach of the duty, and did not admit theinjuries and disabilities. The defendant also claimed contributory negligence.

Issues

6.The common law rules about the standard of care that an occupier must show to entrants in relation to dangers on premises have been replaced by s 168 of the Civil (Wrongs) Act 2002 (the Act): Bailey v Lend Lease Fund Management Ltd [2013] ACTSC 56 (5 April 2013) at [67]. Relevant extracts from the Act are reproduced at Annex A. There may not be much difference in substance between the common law rules and those provided by s 168: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488; Brozinic v ISS Facility Services Australia Ltd [2014] ACTSC 8 (7 February 2014)(Brozinic)at [51]. During the course of the hearing there was evidence of, and no challenge to, the application of the occupier’s duty described at s 168(1) of the Act. That provision provides that an occupier must take all care that is reasonable in the circumstances to ensure that an entrant does not suffer injury because of the state of the premises, or things done or omitted to be done about the state of the premises.

7.Similarly, during the course of the hearing there was evidence of, and no challenge to, the injuries and disabilities suffered by the plaintiff, nor any issue abouttheir factual or legal causation as required by s 45 of the Act.

8.The facts of the incident were not ultimately in dispute, and are described in detail below.

9.The issues left to be decidedare:

(a)was there a breach of the standard of care,

(b)was there contributory negligence, and

(c)the quantification of any damages.

10.Ultimately I find the defendant did breach the standard of care, there was contributory negligence and damages are to be awarded.

Facts and Chronology

11.I make the following findings in relation to the incident, treatment, injuries and disabilities on the balance of probabilities.

12.Incident. The incident occurred just before noon on 19 December 2013 at the gate assembly entranceto the Canberra Centre Aldi Store. The gate assemblycomprised two tandem swinging metal gates that opened automatically when approached from outside the store. On the day in question, the first gate was fixed open and the second gate was operational. The gate assemblywas recorded on CCTV footage and is describedin more detail below.

13.The plaintiff regularly attended the Aldi Store. Aldi shopping trolleys were stored just outside the gate assembly.

14.Just prior to the plaintiff entering the store two shoppers, without a trolley, walked through the gate assembly without incident. The second gate opened just as the first shopper placed his hand out in front of him towards the gate, and shortly thereafter closed behind the second shopper.

15.Seconds later the plaintiff entered the gate assembly while pushing an empty Aldi shopping trolley. As she pushed her trolley towards the closed second gate, she looked up and to her right, away from the gate and towards a display of biscuits. She expected the second gate to open automatically. It did not. The trolley collided with the closed second gate and stopped. The plaintiff struck her lower left shin on the trolley. The plaintiff experienced significant pain and immediately reached down and touched her lower left shin. The plaintiff then moved her trolley back and forth twice and the gate opened. The plaintiffcontinued through the assembly, limping slightly as she did so. She was followed by another shopper and the gate closed behind that shopper. The plaintiff again reached down and touched her lower left leg, and described experiencing pain that was, to use her words, absolutely excruciating.

16.Seconds later two further shoppers, without a trolley, walk through the gate assembly without incident. The second gate opened as the first shopper placed her hand out towards the gate, and shortly thereafter closed behind the second shopper.

17.The plaintiff reported the incident to a manager at the store and completed an Incident Report and Investigation form before leaving the store. She described the pain at that time as being 7.25 out of 10.

18.Treatment. On the same day as the incident, the plaintiff attended Calvary Hospital Emergency Department. She was observed to have a large haematoma on her lower shin, with no fracture of the adjacent bone. She was discharged with a treatment plan involving the application of ice, the elevation of the limb and a prescription forthe analgesic Endone. Following that examination, the swelling continued to increase in size.

19.Four days later on 23 December 2013, the plaintiff attended her General Practitioner at the Dickson Medical and Travel Clinic. She was observed to have an 8cm x 13cm haematoma on the lower anterior part of her left leg, with swelling of the foot and bruising tracking above the injury. The treatment plan involved continued elevation, a compression bandage and possibly a further prescription for Endone.

20.On 24 December 2013, the following day and Christmas Eve, the plaintiff telephoned her General Practitioner’s rooms. She informed a doctor that the injury was starting to ooze and that she was really concerned. The plaintiff was told that she should keep the site clean and dress it regularly, and if there were any difficulties she could contact the Canberra Afterhours Locum Medical Service. The plaintiff was experiencing pain ranging between 5 and 8.5 out of 10 depending upon her ingestion of Endone.

21.On 29 December 2013, the plaintiff attended Calvary Hospital Emergency Department. She indicated the swelling and pain had become ‘nightmarish’ and the injury had started to smell. She was still experiencing pain. She was observed to have a liquefied clot in her leg that presented as a large blood blister over the distal shin. The treatment plan involved dressing with a combined dressing. She was advised that should the skin split, she should allow it to drain for a few hours before covering the same with a supplied dressing.

22.On 2 January 2014, the plaintiff attended her General Practitioner at the Dickson Medical and Travel Clinic. By this stage the skin over the injury had turned black and putrid. She was observed to have large laceration and very large haematoma, and was assessed as requiring surgery. An ambulance was called and she was immediately transferred and admitted to The Canberra Hospital.

23.On 3 January 2014, the plaintiff underwent surgery involving the debridement of a large area of necrotic skin and congealed blood, spanning an area of 20cm x 12cm and leaving a large exposed wound.

24.On 7 January 2014, the plaintiff underwent further surgery to wash out the wound and apply a skin graftto the woundthat was sourced from her left thigh..

25.On 13 January 2014, the plaintiff was discharged from The Canberra Hospital.

26.The plaintiff has been left with a prominent, permanent, vulnerable and unsightly contour deformity on her left shin that cannot be improved by surgery. She experiences regular shooting pain to her left foot, which is aggravated by exposure to cold temperatures. She is no longer able to walk or stand for periods much beyond 10 to 20 minutes. She has also developed a clinical level of Specific Phobia, manifesting as an extreme fear of re-injury to the area.

Gate Assembly

27.The plaintiff led evidence from, and tendered a report by, Dr Timothy White, a mechanical engineer. Dr White’s evidence described the gate assembly at the front of Aldi Store and compared it to what he observed on the CCTV footage. He assumed that the gate assembly he inspected nine months after the incident was the same as what was in place on the day of the incident.

28.Dr White described the gate assembly as a Wanzl Technoport 2 fold system. It involved two tandem gates that operated independently of each other. That is, there was no command connection between the gates. When a customer approached near the front of the first gate, a radar sensor on the first gate detected the customer and the gate swung open. When the first gate swung open, the movement of the first gate was detected by the radar in the second gate and the second gate then swung open. During his evidence, Dr White conceded that such design may have been either coincidental or intentional.

29.Dr White observed that on the day of the incident the first gate was fixed open. The second gate swung open for the customers before and after the plaintiff, but did not initially open when the plaintiff approached that second gate with a trolley. He concluded, axiomatically, that the first gate was malfunctioning because it was fixedopen, and the second gate malfunctioned as it failed to open as the plaintiff’s trolley approached. In relation to the second gate, Dr White speculated that there may have been a problem with the electrical circuit between the trigger mechanism and the motor and or a problem with the motor and gearbox. During cross examination, Dr White also speculated that the gate may not have opened because the sensor did not trigger for some reason.

30.Dr White compared the configuration of the gate assembly to the various configurations described within a translated operating manual, attached to his report. The provenance and purpose of the former document were not evident. Additionally there was no evidence whether or not its contents were known, or ought to have been known, to the defendant. Dr White noted that the document describedgate assembly configurations using either only a light barrier sensor, or both radar and light barrier sensors. His observations of the gate assembly at the Aldi Store were that each gate used only a radar sensor, and therefore that configuration was not consistent with the configurations described within the document.

31.I was invited by the plaintiff to find that the gates had therefore not been installed in accordance with the manufacturer’s specifications. However, I cannot accept that submission on the available evidence. It is not clear if the configuration was contrary to the manufacture’s specifications as it remains unclear what, if any, those specifications were. Rather the evidence established that the configuration was not the same as those described within the above document. Additionally, it is unclear why the gate failed to open and therefore whether the configuration was a factor leading to that failure. Accordingly, it is not clear to me what to make about the difference between the configuration installed and those described within the document.

32.Ms Jane Scott, a Front End Supervisor and Safety Officer at the Aldi Store, was called by the defendant to give evidence. She had worked at the store for six years, and therefore had been there for three plus years before the incident. She testified that, in addition to reporting any safety hazards that came to her attention, she would also periodically conduct deliberate inspections of the store by reference to a StoreHygiene & Safety Checklist. That checklist did not include an item in relation to inspecting the gate assembly, but did include an item for checking the ‘entrance/exit area’. During the course of her inspections, Ms Scott had gone to the entrance of the store, look around and walk through the gate assemblyfor the purpose of identifying any risk. There was no evidence that she identified a risk in relation to the gate assembly.

33.Ms Scott could not remember there being any problem with the gate assembly on the day in question prior to the incident. She agreed the first gate was fixed open and explained that was so because it had been swinging wildly. She believed that she probably disconnected the sensor and thereby caused the gate to be fixed open. She understood a technician had been called, but was not involved in that process. She testified that the second gate had not previously malfunctioned and had therefore never needed to be left open.

34.Ms Scott described that the gate assemblyhad beenthe site of incidents before 19 December 2013 and that those incidents hadcontinued to occur. They involved children playing with the gatesbyeither pushing them or attempting to stop them closing. Children had been struck in the chest and face, and the store had responded by providing ice packs for those injuries. Additionally, customers had attempted to leave the store through the gates and had beencaught in the area between the first and second gates. The latter set of incidents appear to be examples of the gates operating as they should, by preventing customers exiting the store through that entrance.

35.Mr Jeremy Jacobson, a Store Manager at the Aldi Store, was also called by the defendant to give evidence. He testified that he commenced working at the Aldi Canberra Centre store eight years before, (circa 2008) and that during the month of December 2013,approximately 60,000 paying customers, and others,had attended the store.

36.Ms Claire Weir, an Area Manager for Aldi Food Stores, was also called by the defendant to give evidence. She testified that, in relation to the gate assembly, there had been times when a customer walked up to a gate and a gate did not open. She explained the customer needed to be ‘sensed by the sensor’. Ms Weir also indicated that there was no maintenance log for the Wanzl gates and that it hadon occasions taken ‘some time’ for the contractor, who maintains the gates, to attend to perform maintenance. That time was not quantified.