Anne Leonore Warrener v Australian Capital Territory

Anne Leonore Warrener appealed to the Court of Appeal of the Australian Capital Territory against an order of a Master of the Supreme Court of the Australian Capital Territory that dismissed her claim for damages for personal injuries. The appellant had tripped and fractured both ankles after falling into a depression in the surface of the Charnwood parking area at night. She alleged that the respondent, the Australian Capital Territory, was negligent in failing to adequately light the car park, to repair the uneven surface, and to warn of its dangerous condition. The respondent denied negligence, asserting it was not the occupier of the land and therefore not liable for its maintenance, and later pleaded contributory negligence.

The central legal issues before the Court of Appeal were whether the respondent owed a duty of care to the appellant and, if so, whether the respondent had breached that duty. While the respondent initially disputed its status as occupier, it was common ground at trial that the respondent was indeed the occupier and responsible for the maintenance of the parking area. The issue of contributory negligence was not pursued on appeal. The court was required to determine if the respondent's failure to repair the depression and its provision of lighting in the car park met the required standard of care.

The Court of Appeal considered the principles of negligence applicable to public authorities as owners and occupiers of premises, as established in cases such as *Brodie v Singleton Shire Council* and *Ghantous v Hawkesbury City Council*. The duty owed was to keep the car park surface safe for users exercising reasonable care. The Master had found that the depression, approximately 1.5 centimetres deep at its deepest point, was not an obvious hazard during daylight but was not visible at night due to inadequate lighting. He also found that the lighting was insufficient for the appellant to see the depression and that it was reasonably foreseeable that people would cross the car park on foot at night. However, the Master also found that even if the respondent had been aware of the depression, it would not have been identified as a safety hazard requiring repair, and that the respondent was unaware of the trench. The Court of Appeal agreed with the Master that the depression itself, being only 1.5 centimetres deep and not having sharp edges, would not have constituted a breach of duty if the accident had occurred during the day. The court found that the respondent would have discharged its duty if the appellant had been crossing the car park during daylight.

The appeal was dismissed with costs. The Court of Appeal concluded that, despite the Master's findings regarding the inadequacy of the lighting at night and the foreseeability of pedestrians crossing, the respondent was not in breach of its duty of care. This was based on the finding that the depression itself was not a significant hazard, and that the respondent could not reasonably be expected to have identified it as such, particularly given the lack of prior complaints or knowledge of its existence. The court accepted the Master's preference for the evidence of the respondent's inspector, which indicated that the depression would not have been considered a safety issue requiring repair.