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Written by Peter Carter

November 26, 2021

A customer who failed in substantial damages asked against Coles for an injury in its supermarket carpark has suffered the further indignity of having her eligibility for a disability pension questioned.

Jacqueline Pike had packed her groceries into her car after doing her weekly shop at the Cambridge Park store in Boomerang Place in Western Sydney.

Upon taking a backwards step into an adjacent parking bay to give herself room to shut the passenger side door, her right foot descended 20 cm into an uncapped drainage pipe causing her to fall heavily onto her buttocks and aggravating an existing spinal condition.

Coles occupied the entire allotment on and was specifically responsible under its 20-year lease for the maintenance of the car park except for fair wear and tear and items of a structural nature.

Jacqueline issued proceedings in 2017 in the NSW Supreme Court against Coles and the owners of the centre for damages including $700k for loss of income and $375k for future domestic care.

Emails and notices produced by agents Raine and Horne established that it had – on behalf of the owners – reminded and pressed Coles to fulfil those obligations with reasonable frequency.

Despite those reminders, Coles could produce no evidence that it had inspected the condition of the car park or had taken any steps to remediate any defects.

Although unable to prove the duration of the pipe’s unsafe status Justice Michael Walton was satisfied “that the hole had been open at least since the previous day but most likely for a longer period sufficient to enable the cover to be removed and for debris to accumulate”.

“In those circumstances,” he observed “Coles failed to take reasonable precautions, either by failing to have and applying any system of inspection, maintenance and repair, or adopting a system which was wholly inadequate” and was responsible for that breach.

On the other hand there was no basis for holding the owners had breached any duty in relation to the carpark’s upkeep.

His Honour them turned his mind to the permanent disability and pain – based on Jacqueline’s self-reporting – that was reported upon by numerous medical experts.

Those self-reports – and the medical evidence premised upon them – were made entirely redundant by surveillance footage that demonstrated she had significantly greater physical capacity and less restriction than she made out and had been working to a far greater extent than she had revealed.

The video footage compelled a picture “inconsistent with the plaintiff exhibiting pain or physical limitation and…sits ill with her evidence as to incapacity to work”.

Justice Walton nevertheless believed Jacqueline had “a very strong work ethic” and was not concerned – in terms of her credit – by the “trousering of a couple of $50 handed to her”.

But that’s where the latitude extended to the 48-yr old former office manager ceased.

“I find the plaintiff’s evidence is unsatisfactory, exaggerated and …in many respects strained incredulity. She has a capacity to work, even to undertake arduous work, with pain managed adequately by medication”.

Even her meeting the requirements for a disability pension must, in His Honour’s view “be doubted”.

But even with those strongly adverse findings he allowed a global award of $50k for future loss of earning capacity and a general damages assessment “at 29% of the most extreme case”, which translates to $123.5k.

Her damages were reduced by the $158k already paid by Coles.

Pike v Coles Supermarkets Australia Pty Ltd; Pike v Solomon [2021] NSWSC 1492 Walton J, 19 November 2021 Read case

Categories: Supermarket injury

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