Anne Leonore Warrener v Australian Capital Territory

[2004] ACTCA 9

ANNE LEONORE WARRENER v AUSTRALIAN CAPITAL TERRITORY
[2004] ACTCA 9 (28 May 2004)

NEGLIGENCE – appeal from order dismissing claim for damages – appellant tripped over depression in car park surface at night – whether failure of respondent to repair depression constituted breach of duty of care – adequacy of lighting of car park at night.

Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 31-2003
No. SC 793 of 2001

Judges:  Higgins CJ, Connolly and Lander JJ
Court of Appeal of the Australian Capital Territory
Date:  28 May 2004

IN THE SUPREME COURT OF THE  )   No. ACTCA 31-2003
  )  No. SC 793 of 2001
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL  )

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:ANNE LEONORE WARRENER

Appellant

AND:AUSTRALIAN CAPITAL TERRITORY

Respondent

ORDER

Judges:  Higgins CJ, Connolly and Lander JJ
Date:  28 May 2004
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs.

IN THE SUPREME COURT OF THE  )   No. ACTCA 31-2003
  )  No. SC 793 of 2001
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL  )

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:ANNE LEONORE WARRENER

Appellant

AND:AUSTRALIAN CAPITAL TERRITORY

Respondent

Judges:  Higgins CJ, Connolly and Lander JJ
Date:  28 May 2004
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT

1. This is an appeal from an order of a Master of this Court dismissing the appellant’s claim for damages for personal injuries arising out of a fall in the Charnwood parking area adjacent to the Charnwood shops and known as ‘Charnwood Place’.

1. On 3 April 1999 the plaintiff, who was then aged 58 years, was walking in the company of two friends across the Charnwood parking area when she fell and fractured both ankles.

1. On 31 May 2000 she commenced proceedings against the Australian Capital Territory which was the owner and/or occupier of those premises.

1. She claimed that her injuries were a result of the respondent’s negligence in failing to sufficiently light the area; allowing the surface of Charnwood Place to be uneven and, in particular, to allow a drop in the roadway, some three to four centimetres over a period of 10 to 12 centimetres wide; failing to warn people of the dangerous nature of the surface of the area; and failing to heed requests, from time to time, to upgrade the surface of the area.

1. The respondent appeared and denied negligence.  Further, the respondent claimed that, because the area was gazetted as a road, the respondent was not the occupier of the land, nor liable for any defective condition of it, nor under any duty of care to repair or maintain it.  The respondent later pleaded that the appellant was guilty of contributory negligence.

1. The matter was heard by the Master of this Court who, on 5 September 2003, dismissed the appellant’s claim and entered judgment for the respondent, and ordered the appellant to pay the respondent’s costs.

1. Notwithstanding that the Master dismissed the appellant’s claim, he assessed the appellant’s damages flowing from the injuries in the sum of $72,000.  No doubt he did so in case the appellant appealed and the matter had to be reconsidered.

1. Neither party complains about the Master’s assessment.

1. The only issue before this Court is whether the Master was right to dismiss the appellant’s claim.

1. Notwithstanding the plea in the respondent’s defence, at trial it was common ground that the respondent was the occupier and responsible for the maintenance of the parking area.  The issue of contributory negligence was not pressed.  The issues at trial and, therefore, of course, on appeal, were whether or not a duty of care was owed by the respondent to the appellant and whether the respondent was in breach of that duty.

1. Easter Saturday fell on 3 April 1999.  At about 9.00 pm the appellant left the May Sum Restaurant at the Charnwood Shopping Centre intending to cross the Charnwood parking area to reach her motor vehicle.  The appellant was accompanied by two friends, Mr Harold Wilson and Ms Antoinette Nestler, both of whom gave evidence at the trial.

1. It was a dark night and, because it was Easter Saturday, the shops and the shopping centre were closed.  No light, therefore, spilled from the shops onto the parking area.  The only artificial light available was from streetlights attached to high poles.

1. It was the appellant’s case that she walked with her two friends from the restaurant along brick or stone pavement and reached a kerb on the outer perimeter of the car park.  The appellant said that they were walking three abreast.  She stepped off the kerb and, when she took her second step after leaving the kerb, she fell.  She said she fell as a result of her putting her foot into a hollow which she had not seen because of the darkness.  The fall caused her to break both ankles.

1. On a date unknown, but prior to 3 April 1999, a trench had been dug through the bitumen surface of the car park about a metre from the kerb from which the appellant stepped.  It was probably dug to accommodate cabling.  It had been refilled with bitumen but the bitumen had compacted and sunk.

1. It was common ground, and the Master found, that ‘the new bitumen had sunk a little below the general level of the car park as the fill compacted’.

1. There was a dispute at the trial as to the level below which the trench had sunk relative to the general level of the car park surface and we will refer to the evidence and the findings in that regard.

1. The appellant’s evidence, and the evidence of her two witnesses, in relation to exactly where she was and where they were when she fell, was not entirely consistent but that is to be expected.  They were giving evidence of an incident which had occurred four years before in circumstances where, suddenly and without warning, the appellant fell and suffered her injuries.

1. Mr Wilson, who was a retired electrical and mechanical engineer, returned to the scene the next day and, on other occasions, shortly after the incident, took photographs of the area.  Those photographs were tendered.  He also made observations but took no measurements.  Mr Wilson’s evidence was that the width of the trench was 10 to 13 centimetres and its depth two to three centimetres.

1. Mr P A Philippa, who was employed by the respondent as a Planning and Investigations Officer, also inspected the area.  Mr Philippa is qualified in engineering surveying and civil works supervision.

1. Mr Philippa first attended the scene a little over a year after the accident.  He inspected the asphalt surface of the car park and the pedestrian pavement.  He also observed the road opening (trench).  He said that the northern section was approximately 50 centimetres wide and the southern portion approximately 20 centimetres wide.  The northern section had been more recently repaired than the southern section.  The Master found that the appellant fell near the southern section.

1. Mr Philippa took measurements of the depth of the depression.  On that occasion, he measured the depth of the depression at one centimetre.  Subsequently, in October 2001, he inspected the area and he measured the deepest part of the trench at one and a half centimetres.  The Master found that it is likely that the depth of the trench was one and a half centimetres at the time that Mr Philippa first measured it but that, because of the presence of motor vehicles, he was unable to properly measure it.

1. Mr Philippa also said that the area where the Master found that the appellant fell was depressed without any sharp angles but with some undulation.

1. The Master preferred Mr Philippa’s evidence to that of Mr Wilson.  It was accepted by the appellant, on the hearing of this appeal, that it was open to the Master to find, as he did, consistently with Mr Philippa’s evidence, that the deepest part of the depression was in the order of one and a half centimetres.

1. Mr Philippa also said that he had made enquiries but was unable to identify who had been responsible for opening the road.  Utility companies, such as Telstra, Optus and Actew AGL, need to open roads from time to time to bury cabling.  There is a procedure for obtaining a road opening permit from the respondent but that is not always complied with by utility companies.

1. The Master found that this road was opened and the trench was dug and filled without permission ever being obtained from the respondent.  He was unable to find who was responsible for that work.

1. Mr Philippa said that his observations of the trench satisfied him that it did not give rise to a safety concern such as to require repair.  Mr Philippa said that the area was an undulating surface without sharp edges and would not, therefore, be likely to catch shoe heels or toes, or to cause a trip hazard.  Mr Philippa also said that it was not possible for the owner/occupier of a car park to maintain a flat and level surface to the same degree as a concrete footpath.  The surface of a car park is flexible because it consists of stones bound together by a bituminous material.  A concrete pavement is rigid and smoother.

1. The Master found:

‘Having regard to the size of the paved area for which the Territory Government has regulatory responsibility, and in the absence of any evidence as to when the road opening was made and filled, or of any complaints by the public, I am not satisfied that the Territory could reasonably be expected to have identified the trench as a potential hazard.  In any event, it follows from Mr Philippa’s evidence that if he, or another inspector in his position, had been aware of the trench and had inspected it prior to the plaintiff’s fall, the trench would have been assessed as presenting no safety issue requiring its repair.’

1. As we have said, the Master accepted that the measurements made by Mr Philippa were more likely to be accurate than those made by Mr Wilson.  The Master found that the appellant stepped onto the car park into the trench, the surface of which was ‘markedly lower’ than the surface area of the car park.  He found that the appellant stepped onto the trench at its deepest, or one of its deeper parts.  She was wearing flat-heeled shoes.  The Master found that she fell because she stepped into a surface lower than that of the rest of the car park.

1. It follows from the Master’s findings that he must have found, if he accepted Mr Philippa’s evidence, that the appellant stepped into a depression which was of a depth of one and a half centimetres.

1. The area where the appellant fell was in shadow or partial shadow because of tree foliage.

1. Evidence was led as to the lighting conditions.

1. A draft report by Jackie Ohlin, Cultural Planner, dated September 1998, on the development of a cultural profile for the Charnwood Group Centre refurbishment, was prepared for the respondent.  Its status is uncertain.

1. In a chapter entitled ‘Principle Themes Opportunities for Action’ it is reported:

’11. Upgrade lighting – especially in car parks.’

1. The appellant interrogated the respondent and the interrogatories and their answers were tendered.

1. The lighting in car parks in Ms Ohlin’s draft report was the subject of interrogatories:

‘Q 6.1Describe as best you can the nature of the public lighting to the Charnwood Shopping Centre car park as at 3 April 1999.

A 6.1Light was provided at the car park by electric light globes, suspended from tall poles set in the pavement.

Q 6.2Does the Defendant have minimum standards for public lighting in public centres or car parks?

A 6.2Yes.

Q 6.3If the answer to interrogatory 6.2 is “Yes” did the public lighting in the Charnwood Shopping Centre car park as at 3 April 1999 comply with the minimum standards referred to in 6.2 above?

A 6.3Yes.

Q 7.1Was the Defendant aware of a Draft Report on Development of a Cultural Profile of the Charnwood Group Centre Refurbishment, dated September 1998?

A 7.1Yes, I believe the Defendant became aware of a draft report entitled “Report on Development of a Cultural Profile, Charnwood Group Centre Refurbishment” apparently prepared by Jackie Ohlin and dated September 1998 which is now present on the defendant’s file number 97/21820.  I believe it was received by the Defendant on or about 22 September 1998.

Q 7.2If the answer to 7.1 is “Yes” did the Defendant become aware in or about September 1998 that it was suggested in a report that lighting should be upgraded, especially in car parks?

A 7.2Yes.

Q 8.1Did the Defendant receive a fax from Dorrough Britz & Associates dated 19 November 1998, which enclosed a document, entitled Charnwood Centre Master Plan.

A 8.1Yes.

Q 8.2If the answer to 8.1 is “Yes”, was the Defendant aware that Dorrough Britz had included in its proposed development works the following:

(a)Improve the lighting to whole centre to provide a safe night time environment.  This would include upgrade of car park lighting and new pedestrian lighting.

A 8.2Yes.

Q 9.1If the answer to interrogatory 8.1 is “Yes”, did the Defendant take any action to improve the lighting of the Charnwood Shopping Centre car park following receipt of the fax from Dorrough Britz & Associates refer [sic] to in 8.1?

A 9.1Yes.

Q 9.2If the answer to 9.1 is “Yes”, please describe what action the Defendant took and when such action was carried out.

A 9.2The recommendations of the draft report after consultation, became a Concept Master Plan and the thrust of its recommendations were ultimately carried out in the works referred to in Answer 4.2 commencing 22 May 2000 and concluding in early 2001.

Q 10Between 20 November 1998 and 3 April 1998 [sic] did the Defendant undertake any (and is [sic] so what) work on the public lighting of the Charnwood Shopping Centre and car park?

A 10Assuming the question refers to 3 April 1999, the area was subjected to a bi-weekly inspection for defective lights by ACTEW but records show no defect in the lights at Charnwood Place between 20 November 1998 and 3 April 1999.’

1. The Master found that the lighting was inadequate for the appellant to see the trench.  He found:

‘That the state of the lighting was such that she [the appellant] did not see it [the trench] and could not reasonably have been expected to do so.’

1. The Master’s findings can, therefore, be summarised in this way.  First, the shopping centre car park had a trench about one metre from the outer kerb of the car park running in a north-south direction.  At its southern point, it was something like 20 centimetres wide.  It did not have a sharp edge but it was undulating.  The surface of it was one and a half centimetres deeper than the level of the car park at its deepest part.  The area was inadequately lit for anyone crossing the car park at night.  The appellant suffered her injuries because she fell when she placed her foot in the trench of which she was not aware.  The respondent was also unaware of the existence of the trench.  Whoever was responsible for the trench had not sought, at least, formal permission from the respondent to dig and fill the trench.  Even if the respondent had been aware of the trench, it would not have been identified as a potential hazard and would have been assessed as presenting no safety issue requiring its repair.  As at 3 April 1999, the respondent, through its Department, was aware of concerns regarding the inadequacy of the lighting and was in the process of taking steps to improve it.

1. The Master found:

’41.It seems to me that the fall occurred as a result of a combination of unfortunate circumstances.  The night was dark, and because it was Easter Saturday, shops which normally stayed open late had already closed by the time the plaintiff and her friends finished their dinner.  The light from those shops was thus not available as a source of additional light to the car park.  The streetlights were probably operating correctly, but the area of the car park where the plaintiff fell was in shadow or partial shadow because of tree foliage.  Accordingly, the trench, which would have been obvious in daylight and hence not dangerous, was not visible to the plaintiff.  The width of the trench was such that the plaintiff might easily have stepped across it without being aware of it, but as it happened she placed her foot into a deep part of the trench.  The unexpected depression caused her to lose her footing.’

1. The question on this appeal is whether the Master was right to find that the respondent was not in breach of its duty to users of the car park in circumstances where he found that the trench was clearly visible in daylight but not at night, due to the inadequate lighting, and where he found that it was reasonably foreseeable that people would cross the car park on foot at night.

1. The respondent’s duty to users of the car park and the standard of that duty was discussed in Ghantous v Hawkesbury City Council (2001) 206 CLR 512. The ordinary principles of negligence apply to a public authority which is the owner and occupier of premises of this kind.

1. The duty owed by the respondent was to keep the surface of the car park safe for users exercising reasonable care for their own safety:  Brodie v Singleton Shire Council;Ghantous v Hawkesbury City Council (2001) 206 CLR 512 at 581 per Gaudron, McHugh and Gummow JJ. The duty owed to a pedestrian is a duty to prevent or eliminate dangers, but not obvious hazards, which could possibly be an occasion of harm. The standard of care is that which is reasonably required to protect users taking care for their own safety.

1. In our opinion, there is no doubt that the respondent would have discharged its duty if the appellant had been crossing this car park during the day.

1. The appellant’s counsel put at the forefront of his submissions that this depression was obvious to see.  He said it was an obvious danger.  Of course, he made that submission in support of his contention that the respondent would have identified the hazard and should have filled the depression if it had a proper system of inspection.

1. Mr Philippa’s evidence was that, if he had been aware of the depression, he would not have taken any steps to fill the depression.

1. The Master was impressed by Mr Philippa’s evidence.  He was not bound to accept Mr Philippa’s evidence on this topic but he did.  We have read that evidence and we have had the same advantage as the Master of viewing photographs taken the day after the incident.  The depression was just that.  It was a 20 centimetre wide area, the surface of which was only one and a half centimetres deeper than the level of the car park at its deepest part.  Such a depression is not unusual.  It is not deep and, in our opinion, subject to what we are about to say about conditions at night, not dangerous.

1. There would be no breach of any duty of care if this accident had occurred during the day.

1. However, the Master found that this was not an obvious hazard at night.  A person crossing the car park at night could not have been aware of the existence of the depression.  When the appellant stepped into it, she broke both ankles.

1. It was foreseeable that pedestrians would cross the car park.  It is the only way pedestrians can obtain access to their motor vehicles.  The car parks are designed for pedestrians to move about.  Of course, it was also foreseeable that they would do so at night.  The Master found that the depression would have been visible on the night in question with brighter overhead lighting.

1. Was then the respondent in breach of its duty of care because the lighting in the car park did not allow the appellant to see the depression?

1. The appellant contended that the respondent’s system of inspection, in this regard, was also inadequate.  The respondent inspected the lighting in the car park twice a week to check for defective lights.  The appellant contended that during those inspections the respondent’s employees should have noticed that the lighting was not adequate for pedestrians using the car park.

1. That, of course, was not the purpose of those inspections.  The twice-weekly inspections were to ensure that the existing lighting was operating.

1. The question of inspection does not arise unless there is a case for more lighting.  On this night the lighting was inadequate.  But this night was exceptional.  All of the shops and restaurants which were usually open at night were closed.  Those shops and restaurants would usually spill light onto the car park.  There was no evidence whether on all but this exceptional night the car park was adequately lit.

1. We are not satisfied that the appellant has made out a case that the car park required more lighting.

1. Indeed, a plan was tendered showing the result of the refurbishment of the car park and surrounds.

1. That plan showed that there were three light poles before and after the refurbishment.  They were all slightly differently placed.  There is no evidence whether the refurbishment provided more light from those three sources.

1. We think that the Master’s findings, set out at par 38 of these reasons, were correct.

1. We think the appellant suffered her serious and most unfortunate injuries as a result of a combination of unfortunate circumstances but not as a result of the respondent’s breach of duty of care.

1. In our opinion, the respondent was not in breach in failing to become aware of the existence of the depression.  It was not in breach in failing to fill the depression.  The depression was not a source of danger during the daytime.  It was not in breach in failing to provide further lighting so that the depression was not a source of danger at night.

1. The appeal should be dismissed with costs.

   We certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

   Associate:

   Date: 28 May 2004

Counsel for the Appellant:  Mr S Tilmouth QC with Mr G Parker
Solicitor for the Appellant:  Capital Lawyers
Counsel for the Respondent:  Mr D Higgs SC with Mr P Walker
Solicitor for the Respondent:  ACT Government Solicitor
Date of hearing:  12 May 2004

Date of judgment:  28 May 2004