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Written by Peter Carter

November 25, 2011

Eve Lowe’s tumble on the floor surface remains of a red Slushee outside the Australia Post store at Pacific Fair Shopping Centre – while calamitous for her wellbeing – provides an instructive tutorial on the necessary ingredients for every successful shopping centre slip and fall compensation ask.
Having fallen “on her knee and then landing on her coccyx”, she was armed with Eftpos sale evidence of her preceding purchase of a lamp at the adjoining Reject Shop at 1:40 pm. She insisted the fall on a red liquid spilled on to the terrazzo floor had occurred at no later than 1:42.

Lowe – represented by KM Splatt & Associates – sued the centre owner and operator, AMP Capital as well as the cleaning contractor Airlite, for her injuries alleging that they should have detected the spill and cleaned it up prior to the time of her fall.

The court gave ultra scrutiny to the specified cleaning schedule and the evidence of one Teresa Richards – the cleaner who arrived at the site very shortly after the fall – who affirmed the contractual terms allowed for a maximum period of 26 minutes between cleaner visits at any point in her designated area.

Richards’ version was that she had finished lunch at 1:00 pm and inspected the accident area at 1:30.  She claims to have been made aware of the spill when she performed her second round and arrived at the accident scene at 1:50 pm, well within the 26-minute window.

At trial, “only the [cleaning contractor] remained involved” with the plaintiff having discontinued against or settled with AMP. Unfortunately for the contractor, Richards account came undone as his honour noted a number of glaring inconsistencies in her record-keeping.

The rotation and incident records where Richards specified an inspection at 1:30 pm had been – according to the court – “written over some earlier estimate of the time which is not legible on the form.”  Other contemporaneous entries were also revised.

The contention that the cleaner had attended the accident scene at 1:30 pm and then 1:50 pm was – so held the court – “totally unreliable”. More likely was the scenario that Richards had reached Australia Post once only, on her first rotation at 1:13 pm – halfway through the round and “outside the magic 26-minute window”.

Thus even without evidence of the duration of the offending spillage on the floor, the fact that the rotation specification had been exceeded was enough to find the contractor liable: Harris v Woolworths Limited. Orthopaedic specialist Terry Steadman – for the defence – prognosticated that Mrs Lowe’s injuries would have settled within 6 weeks and symptoms from the fall were contributing in only a minor way to her current complaints. In contrast, his colleague Malcolm Wallace opined that the fall – not a childhood hip condition – was indeed the cause of her ongoing symptoms.

Unbeknown to both specialists, Lowe had been regularly consulting a chiropractor for the hip condition – even on the date of the accident. While “embarrassing to the Plaintiff’s case that she did not disclose to the specialists… her extensive resort to chiropractic treatments”, it was in truth “the way in which the chiropractor… kept her records [that] the plaintiff finds herself charged with concealing or denying a history of backache which is still persisting”.

There was a very plausible explanation for her conduct and in any event, the childhood hip condition had been disclosed in her claim notice. Importantly, she had consistently referred to the pain from the hip as being very separate from her fall-related back symptoms.

Wallace’s view was preferred to that of Steadman, partly because “the latter did not accept the diagnosis of Coxodynia” and “he did not conduct the test which might more reliably indicate the diagnosis”. Moreover another doctor – Dr Barnes – had suffered such an “egregious misunderstanding of what the plaintiff had written in her own confidential health history” that “it raises some concerns as to how careful Dr Barnes might have been in making her notes”.

At the end after careful examination by his Honour, any apparent exaggeration was found to lay more in careless note-taking than in deception. Lowe was entirely acquitted of the defence allegations of inflating her disability.

Despite impressing the court and ticking all the boxes both for proof of negligence and veracity of symptoms, the damages award was modest, some $60,000 only, inclusive of a “global” future economic loss allowance of $40,000.

All that hard work!

Lowe v AMP Capital Investors Ltd & Ors [2011] QDC 267 Robin QC DCJ 28/10/2011

Categories: Personal Injury , Litigation & Law Practice

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