CAROL RUSHTON -v- WOOLWORTHS LTD [2016] QDC 110

Published 20 Mar 2017

Practice Area: Slip & Fall Public Liability Claims

The Plaintiff in these proceedings was a woman in her mid-sixties who had a history of arthritis in her knee prior to the subject accident.

Whilst shopping at a Woolworths store in Queensland, an employee pushing a trolley down the aisle of the supermarket and collided with the left side of the Plaintiff.

As a result of the impact from the trolley, the Plaintiff suffered injuries to her left hip, left knee and left ankle.

The Defendant in these proceedings admitted that they were liable in the circumstances that led to the accident, meaning that the only issue to be determined by the Court was the extent of the Plaintiff’s damages.

In this matter, the Court was required to determine two main elements in order to make an accurate assessment of the extent of the Plaintiff’s damages.

The first element that required consideration by the Court, was the impact of the accident on the Plaintiff’s pre-existing arthritis.

The second element to be determined was whether the domestic care and assistance provided by the Plaintiff’s husband was reasonable and necessary in the circumstances.

PRE-EXISTING CONDITONS

In her evidence, the Plaintiff claimed that she had suffered significant injuries which resulted in a number of ongoing disabilities including ongoing pain in her left knee and hip and losing her independence as a homemaker.

The Defendant contended that the evidence at hand supported a finding that the Plaintiff’s continuing disabilities in her knee were caused by her pre-existing arthritis and that her accident-related injuries had since resolved. In the alternative, the Defendant also contended that the Plaintiff’s injuries in the subject accident merely caused an acceleration of her arthritic condition.

In support of these contentions, the Defendant raised evidence which indicated the Plaintiff’s condition to her knee had significantly resolved within the months following the accident.

Both parties called upon their expert medical witnesses to give evidence on the extent of the Plaintiff’s injuries and the relationship of the Plaintiff’s pre-existing arthritis to her ongoing disabilities.

In light of the above evidence presented to the Court, it was held that the accident had caused an acceleration in the degenerative condition of the Plaintiff’s knee by up to two years.

Accordingly, the Court made an allowance for damages to account for the acceleration of the Plaintiff’s degenerative condition for the two years following the accident, but no further allowance was made for the future.

 

REASONABLE AND NECESSARY DOMESTIC CARE

The most substantial and contentious aspect of the Plaintiff’s claim before the Court was for past gratuitous care and assistance provided by her husband.

The elements for a claim for gratuitous care and assistance were established in the case of Griffiths v Kerkemeyer [1977] HCA 45 but have since been codified in Queensland legislation by Section 59 of the Civil Liability Act 2003 (QLD).

In essence, this pro no damages for past gratuitous services can be awarded unless:

  • The services are necessary;
  • The services arise solely as a result of the injuries suffered as a result of the relevant accident; and
  • The services are provided for at least 6 hours per week for a period of 6 months.

Under these provisions, the primary issue of determining the “need” for gratuitous services inherently involves an objective test. This means that the idiosyncrasies of the Plaintiff prior to the accident, including whether she kept a meticulous house, should not be the primary consideration in assessing whether the care provided was necessary following the accident.

These subjective elements may be taken into consideration, however the test of necessity must be answered objectively based on the evidence before the Court. 

In addition to the medical evidence in these proceedings, the Plaintiff relied upon a diary she kept recording the domestic tasks her husband had assisted with following the accident.

In this instance, the Court held that the Plaintiff’s records of gratuitous services provided did not satisfactorily establish a continuing need for at least 6 hours per week for the entire 6 months following the accident.

In the absence of any meaningful independent evidence, the Court was not satisfied that the Plaintiff had satisfied the requirements to claim for gratuitous services as required by Section 59 of the Civil Liability Act 2003 (QLD). As a result, the Court did not make an award of damages for gratuitous services.

 

CONCLUSION

In light of the above reasoning, the Court awarded damages in the amount of $14,917.12 in favour of the Plaintiff, which included an amount for past treatment and out-of-pocket expenses.

In assessing damages for any personal injury claim it is important to consider the extent of any pre-existing conditions and understand the impact they may have upon your injuries.

If you require domestic care and assistance from your family or friends, it is also important to keep a detailed record of the tasks, including time spent per week, and whom has been providing that assistance.

If you have suffered injuries in similar circumstances as a result of a hazard in a shopping centre, you may be entitled to compensation for your injuries. For a free, no obligation consultation, contact our offices on 1800 004 878 to arrange an appointment with one of our experienced solicitors.