Ball v Wilson Parking Australia Pty Ltd

[2001] WADC 297

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   BALL -v- WILSON PARKING AUSTRALIA PTY LTD [2001] WADC 297

CORAM:   O'BRIEN DCJ

HEARD:   19 NOVEMBER 2001

DELIVERED          :   20 DECEMBER 2001

FILE NO/S:   CIV 397 of 2000

BETWEEN:   NORA BALL

Plaintiff

AND

WILSON PARKING AUSTRALIA PTY LTD
Defendant

CITY CAR PARK PTY LTD
Third Party

Catchwords:

Negligence and breach of statutory duty - Occupier's liability - Plaintiff sued for damages for injuries received when she tripped over wheel stop in car park - Judgment entered against defendant manager of car park - Defendant seeks contribution from third party owner of car park pursuant to Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 - Whether owner an occupier of car park - If so, whether owner not liable pursuant to s 6(1) of Occupiers Liability Act 1985 (WA) - Whether "just and equitable" to award contribution

Legislation:

Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947

Occupiers Liability Act 1985 (WA), s 2, s 5

Result:

Contribution awarded against third party

Representation:

Counsel:

Plaintiff:     No appearance

Defendant:     Mr E M Corboy

Third Party                   :     Mr G H Murphy

Solicitors:

Plaintiff:     Not applicable

Defendant:     Pynt McKay

Third Party                   :     Mullins Handcock

Case(s) referred to in judgment(s):

Boral Resources (SA) Ltd v Byrnecut Mining Pty Ltd [2001] WASC 408

Coles t/a Glen Coles & Co v Montague Grant Architects Pty Ltd & Anor, unreported; FCt SCt of WA; Library No 950374; 12 June 1995

Florida Hotels Pty Ltd v Mayo (1965) 113 CLR 588

Jones v Bartlett & Anor (2000) 176 ALR 137

Kondis v State Transport Authority (1984) 154 CLR 672

Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492

Western Australia v Dale (1996) 15 WAR 464

Wheat v E Lacon & Co Ltd [1966] AC 552

Case(s) also cited:

Fisher v CHT Ltd & Ors (No 2) [1966] 2 QB 475

Demczuk v Polish Soc Dom Mikolaja Inc (1987) 46 SASR 223

Tonich v Macaw Nominees Pty Ltd, unreported; FCt of WA; Library No 940119; 11 March 1994

1. O'BRIEN DCJ:  On 13 June 1998, Ms Nora Ball ("the plaintiff") was injured while using a car park located at the corner of Pier and Wellington Streets, Perth ("the car park").  The plaintiff tripped on a wheel stop embedded in the floor of the car park and fell.  The plaintiff took action against the defendant, Wilson Parking Australia Pty Ltd ("Wilson Parking").  Wilson Parking joined the owner of the car park, City Car Park Pty Ltd ("City Car Park") as third party.  Pursuant to a written agreement ("the management agreement"), Wilson Parking was appointed to manage, control and operate the car park for City Car Park and as City Car Park's agent.

2. Judgment has been entered for the plaintiff against Wilson Parking.  The issue to be determined is Wilson Parking's third party claim against City Car Park.  That is, whether City Car Park is liable to indemnify Wilson Parking in respect of, or to contribute to, the damages payable by Wilson Parking to the plaintiff.

3. The plaintiff alleged that Wilson Parking was negligent by reason of its:

   (a)failure to implement notice or warning signs of the obstruction of the wheel stops;

   (b)failure to illuminate or provide adequate lighting so the wheel stops could be identified; and

   (c)failure to paint the wheel stops so as to make them readily detectible.

4. Wilson Parking’s claim for contribution against City Car Park is as follows.  First, it is pleaded that City Car Park was an occupier and owed duties to the plaintiff.  Contribution is sought under s 7(1)(c) of the Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 ("the Law Reform Act").  Secondly, Wilson Parking alleges that its liability to the plaintiff was caused by City Car Park's breach of contract with Wilson Parking.

5. City Car Park maintains that it was not an occupier and therefore had no liability to Wilson Parking.  It submits that if it is found that City Car Park was an occupier, it was not liable under s 6(1) of the Occupiers Liability Act 1985 ("the Act") as it had engaged Wilson Parking as an independent contractor to operate the car park and to do all things necessary to provide and maintain a safe car park and had thus delegated the performance of its duty to provide and maintain a safe car park to Wilson Parking.  City Car Park submits that it therefore is not a person who "... would if sued [by the plaintiff] have been liable in respect of" the plaintiff's damage (s 7(1)(c) Law Reform Act).

6. City Car Park submitted that if s 6 of the Act were not to apply and City Car Park was liable to the plaintiff for breach of a non‑delegable duty of care, Wilson Parking would be liable to indemnify City Car Park under cl 9.1 of the management agreement against any loss it suffered by reason of its liability to the plaintiff.  This would mean that the contribution would not be "just and equitable" under s 7(2) of the Law Reform Act.  City Car Park submitted that even if contribution were awarded, City Car Park could recover the amount back by way of damages for breach of contract by Wilson Parking and that illustrates the inappropriateness of Wilson Parking seeking contribution:  Florida Hotels Pty Ltd v Mayo (1965) 113 CLR 588.

The management agreement

1. The management agreement was entered into in or around December 1996.  The general relationship between the parties appears in the recitals to the management agreement.

2. Wilson Parking held itself out as having extensive experience in the management, control and operation of car parks.  It was recognised that City Car Park wished to engage the services of a manager to manage, control and operate the car park.  The parties agreed that Wilson Parking will manage, control and operate the car park for City Car Park and as City Car Park's agent on the terms and conditions set out in the management agreement.  Wilson Parking was granted the exclusive right to manage and operate the car park and a licence to remain on the premises for that purpose (cl 2).

Financial arrangements

1. The financial arrangements between the parties are relevantly set out in the management agreement.  Wilson Parking was to be paid a management fee in consideration of managing, controlling and operating the car park (cl 4.1).  In effect, Wilson Parking was liable for all the operating expenditure of the car park.  In addition to the management fee, Wilson Parking was to receive a monthly payment from City Car Park described as "owner's contribution" towards car park expenses.  Wilson Parking was to pay and indemnify City Car Park in respect of car park expenses (cl 3.1).  "Car park expenses", defined in item 2 to the schedule to the agreement, include labour costs attributable to the operation of the car park (2(a)); accounting, administration and audit costs (2(c)); expenses in relation to cleaning the car park (2(e)); licence fees (2(m)) and so on.  Of particular significance in the context of this matter are the car park expenses outlined in item 2(g) being "maintenance of lifts, access control equipment, cash registers, fire hoses and extinguishers, line marking and other items of day to day maintenance, but excluding anything of a structural or capital nature or expense" (italics added).  The other item of significance is Wilson Parking's obligation to pay public liability insurance to the extent of $10 million on Wilson Parking's national policy (2(h)).  City Car Park, and not Wilson Parking, was liable for the costs of structural maintenance and repairs and other capital expenditure (cl 3.2(b) and cl 6(f)(3)).

Obligations of Wilson Parking as manager of the car park

1. The relevant terms of the management agreement relating to the duties of Wilson Parking included:

   (a)to properly supervise the car park at all times (cl 6(a));

   (b)to manage, control and operate the car park in an efficient and proper manner with a view to maximising revenue and providing an optimum service to all patrons who use the car park (cl 6(b));

   (c)to carry out maintenance but without being liable for capital or structural replacements or repairs except where required by Wilson Parking's act or neglect or breach of agreement (cl 6(f)(3));

   (d)to employ sufficient personnel to ensure that its obligations under the agreement are promptly and properly carried out (cl 6(f)(4));

   (e)to do all things necessary to both provide and maintain a safe standard of operation of the car park, including, without limitation, providing safety signage (cl 6(f)(7)); and

   (f)to effect public liability insurance including on behalf of City Car Park (cl 6(g) and cl 9.2).

2. The management agreement also provides that Wilson Parking indemnifies City Car Park against all losses for which City Car Park might become liable resulting from any negligent act or omission on the part of Wilson Parking except to the extent that the loss or damage results from City Car Park's negligence (cl 9.1).

The structure of and equipment in the car park

1. The car park has multiple levels and is serviced by at least one lift.  It has 595 car bays.  Before entering the car park, drivers must take a ticket from a ticket machine which actives the boom gate allowing the car to enter into the body of the car park.  Each car bay has a wheel stop at the top end.  The wheel stop is a metal bar supported on each end by concrete brackets which are embedded into the concrete floor of the car park.  Each end of the wheel stop was painted yellow.  There was strip fluorescent lighting on the roof of the car park but no detailed evidence was given about this.

2. After the plaintiff left her car, she tripped and fell over the wheel stop by catching her foot under the bar.  She claims that she did not see the bar and that generally there was inadequate lighting and signage and, in effect, the colour of the bar apart from the painted ends was grey and merged in with the grey colour of the car park generally.

3. Mr John Deykin stated that he went to assist the plaintiff after she fell and made the same observations concerning the lighting and visibility of the wheel stop bar.  In response to the accident, an incident report completed by Mr Noel Wade, a supervisor employed by Wilson Parking, noted that the relevant area had been inspected and "florescent lighting to be considered and installed to improve situation".

Relevance of oral evidence

1. Evidence was admitted provisionally from two witnesses who testified about the working arrangements between the parties and certain documents were tendered in the context of their evidence.  City Car Park objected to the evidence essentially on the basis that the issues fell to be determined as a matter of construction of the management agreement.  However, I accept the submissions of Wilson Parking that the issue of control is essential to consider in determining whether City Car Park was an occupier of the car park.  In this regard, what City Car Park did after the accident in relation to the wheel stops may constitute evidence of an admission, and that such evidence is relevant to whether a duty of care was owed by City Car Park to users of the car park and if so, whether it was breached.  Further, what each party actually did in relation to the maintenance, supervision and control of the car park may be relevant to the determination of a contribution by the third party if liability is found.  I therefore rule the evidence to be admissible.

2. Peter Dennis Blythe has been employed by Wilson Parking as its state operations manager since 1994.  He testified that all matters involving a significant expenditure would be referred to City Car Park.  If a safety issue arose, he would bring it to the attention of City Car Park and make recommendations how to deal with it.  He was aware that wheel stops were replaced after complaints by drivers that cars being damaged due to wheel stops being too low.  There is insufficient evidence to make a finding that the replacement of wheel stops had anything to do with the accident.  Similarly, some fluorescent lighting was installed in August 1998 and I am unable to determine whether this was done in response to the accident.  Suffice to say that in either case, City Car Park paid for the work to be done.

3. Peter John Polini is an asset manager employed by Perron Group, the parent company of City Car Park.  He testified that the Perron Group owns about $750 million worth of property and employs others to manage it.  It is clear from Mr Polini's evidence that he would meet with Mr Blythe and discuss matters relating to the operation of the car park including matters of appearance, safety, maintenance and installation of equipment.  He also gave instructions to Wilson Parking as to what it needed to look at as part of its operation of the car park.  Prior to 1997 these meetings were arranged on an ad hoc basis.  Regular meetings were conducted and minuted from 1997.

4. Mr Polini authorised the wheel stops to be changed on one level on 27 August 1998 (the minutes of the meeting reflect this).  It was a somewhat protracted process but the decision to go ahead was made by City Car Park.  This was overseen by Mr Blythe who had the day‑to‑day running of the project.  However, he would seek Mr Polini's authority at each stage.  Mr Polini testified that the wheel stops damaged the underside of more modern cars which would be parked away from them and thereby constituted an obstruction to traffic in the thoroughfares of the car park.  According to Mr Polini, this was a hazard which City Car Park had to remedy so that the cars were parked correctly.  This indicates that City Car Park made the decisions in relation to safety issues of a structural nature (the wheel stops).  The minutes of the meeting on 27 August 1998 reveal that Mr Blythe was to organise a quotation to improve the lighting and painting on the lower levels.  However, the evidence is to the effect that these matters related to the aesthetics of the car park rather than to safety issues.

Was City Car Park an occupier of the car park?

1. Wilson Parking claims that it and City Car Park were each occupiers of the car park.  Wilson Parking submits that if City Car Park was an occupier, then it would be a tortfeasor who would, if sued by the plaintiff, be liable for damage suffered by the plaintiff in the accident.  It is clear that two persons may be occupiers of the same premises at the same time and both be under a duty of care to visitors:  Wheat v E Lacon & Co Ltd [1966] AC 552 at 581 and 587. Pursuant to s 2 of the Act an "occupier of premises means person occupying or having control of ... premises". This is a question of fact and "the degree of control required to found occupation must take account of the nature of the particular case": Western Australia v Dale (1996) 15 WAR 464 at 472.

2. Wilson Parking referred to the management agreement, which it claims was drawn to limit the interest of Wilson Parking in the car park and to preserve City Car Park's rights as owner.  The permit for persons to enter the car park was granted by Wilson Parking only as agent for City Car Park (cl 2(c)).  The management agreement enabled City Car Park to retain control over the car park and its operation because of the obligations imposed on Wilson Parking in relation to its management, control and operation of the car park (cl 6).  These illustrate the measure of control retained by City Car Park and the involvement of it in the management of the car park.  In particular, under the management agreement, City Car Park was responsible for the costs of structural maintenance and repairs of the car park (cl 3.2(b)).  The day‑to‑day maintenance of the car park was the responsibility of Wilson Parking.  However, Wilson Parking submits that City Car Park was responsible for and had control over matters such as the extent of lighting in the car park and the location and condition of wheel stops.  Further, as contemplated by the management agreement, City Car Park inspected the car park from time to time, and, by directions to Wilson Parking, City Car Park limited Wilson Parking's management of the car park.  City Car Park was involved in decisions concerning the structure and maintenance of the car park, thereby exercising a degree of actual control over the management and operation of the car park and its condition.  Such was City Car Park's degree of control over the car park, it was able to act to prevent injury to users, especially in respect of hazards posed by the structure of the car park.

3. In my view, this much is clear from the management agreement and from the evidence of Mr Blythe and Mr Polini outlined above.

4. The expenses as apportioned between the parties are consistent with the notion that City Car Park reserved to itself all of the rights one would expect of an owner.  City Car Park owns the equipment to operate the car park and all things which form the structure of the car park.  Wilson Parking was engaged to manage the car park but had no financial responsibility for City Car Park's equipment (apart from certain maintenance expenses) or for the anything of a capital or structural nature apart from "the provision and maintenance of appropriate signage" (cl 6(f)(6)).  City Car Park submits that signage is a capital expenditure and the clause makes it clear that cl 6(f)(3) does not cover the field in relation to maintenance.  Wilson Parking replies that the obligation to provide of signage is specifically provided for, in effect, as an exception to the absolution from paying for items of a capital or structural nature.

5. Consistent with the duties of a manager as outlined in the management agreement, Wilson Parking was responsible only for the day‑to‑day maintenance of the car park.

6. City Car Park as owner is responsible for the costs of insuring the car park against all risks which a prudent owner of similar property would usually insure against (cl 3.2(c)).  It is City Car Park which derives the revenue from the car park (cl 5.2).

7. The measure of control retained is illustrated in cl 6(f)(2) which contemplates that Wilson Parking is responsible for the cleaning of the car park "to the reasonable satisfaction of" City Car Park.

8. In cl 6(f)(3), Wilson Parking has an obligation to "maintain, or take out necessary contracts of service to maintain, all lifts, access control equipment, cash register, fire hoses and extinguishers and line marking and attend to all other matters requiring day to day maintenance".  This obligation is subject to an important provision, namely, that Wilson Parking is not liable "for any replacement or repairs of a structural or capital nature or expense except where required because of any act, neglect or default of Wilson Parking or any of its employees or contractors or which arises as a result of any breach by Wilson Parking of its obligations under the management agreement".  Accordingly, under the management agreement, Wilson Parking has the obligation to pay for certain maintenance costs and this clause obliges the carrying out of certain maintenance.

9. In my view, City Car Park had the necessary measure of control over the car park to place it into the category as occupier of the car park albeit a joint occupier with Wilson Parking.

As an occupier, is City Car Park excused by s 6 of the Occupiers Liability Act?

1. City Car Park submits that it is not liable as an occupier where the damage is due to the negligence of an independent contractor it has engaged if it, as occupier, exercised reasonable care in the selection and supervision of the independent contractor and it was reasonable in all the circumstances that the work that the independent contractor was engaged to do should have been undertaken (s 6(1)).  It is not in dispute that Wilson Parking is an independent contractor engaged by City Car Park.

2. Clause 6(f)(7) provides that Wilson Parking must "do all things necessary to provide and maintain a safe standard of operation of the Car Park, including without limitation provision of any appropriate safety signs and directions, implementation of procedures and training of staff for the safe operation of the Car Park on a daily basis and as required to deal with emergency situations, and as otherwise reasonably required by the Owner from time to time".

1. City Car Park submits that maintenance of a safe standard of operation includes ensuring that the wheel stops are not a hazard to users of the car park.  Wilson Parking answers that City Car Park had an independent duty.  However, in any event, the clause is clearly framed to cover day‑to‑day operational matters and given cl 3.2(b), cl 6(f)(3) and schedule item 2(g), it is not intended to cover structural or capital items which might relate to the safe operation of the car park.

2. It is clear the wheel stops are part of the structure of the car park in the same way as are speed humps or ramp fencing, for example.  In my view, Wilson Parking was responsible for the day to day running of the car park under the management agreement.  As part of its duty to "do all things necessary to provide and maintain a safe standard of operation of the car park", Wilson Parking had a duty to report any safety issues of a capital or structural nature to City Car Park, provide recommendations for their remedy, carry out repairs or maintenance or cause them to be carried out at the direction of and financed by City Car Park.  This much is clear from the terms of the management agreement and the oral evidence and is consistent with the obligations of a manager.  City Car Park had delegated these aspects of its duty as occupier to Wilson Parking.  However, it retained the responsibility and duty as occupier to ensure that safety issues involving items of a capital or structural nature did not present a hazard to users of the car park.

3. As I understand City Car Park's submission concerning the application of s 6 of the Act, if it is found that City Car Park is an occupier then pursuant to cl 6(f)(7) of the management agreement, City Car Park delegated any obligation it might have had as an occupier to Wilson Parking relating to the safety of the car park as a structure as well as its safe operation, to Wilson Parking.  To support this submission, City Car Park relies on the interpretation it places on cl 6(f)(7) of the management agreement, namely that the duty of Wilson Parking as expressed therein imposed on Wilson Parking a contractual duty to ensure that the wheel stops were not a hazard to users of the car park.  This might involve erecting appropriate signs, modifying the lighting, painting the wheel stops or a combination of all or some of those things.  City Car Park concedes that those measures would require capital expenditure.

4. This interpretation of cl 6(f)(7) is artificial given the respective duties and responsibilities of the parties under the management agreement.  In my view, apart from erecting signs (as required under the management agreement), the other work required to make the car park safe was not "work which the independent contractor was engaged to do".  Accordingly, I find that s 6(1) of the Act does not absolve City Car Park from its liabilities as an occupier.

City Car Park's submissions if s 6 does not apply

1. City Car Park submits that if s 6 of the Act does not apply, then it would mean that City Car Park would be liable to Wilson Parking for breach of a non‑delegable duty of care.  In effect, this would mean that City Car Park would incur strict liability to the plaintiff resulting from Wilson Parking's negligence.  City Car Park relies on Kondis v State Transport Authority (1984) 154 CLR 672 at 686‑687 and Jones v Bartlett & Anor (2000) 176 ALR 137 at 191. According to City Car Park, Wilson Parking would then be liable to indemnify City Car Park under cl 9.1.

2. Wilson Parking submits that this clause imposes an obligation on Wilson Parking to indemnify City Car Park but only to the extent of its own negligence.

3. City Car Park submits that even if the indemnity does not apply, Wilson Parking cannot claim a contribution from City Car Park as it has breached its contract with City Car Park to provide and maintain a safe standard of operation of the car park.  On the basis of the analysis above, even if there were such a breach, City Car Park still had an independent duty to ensure that the use of the car park did not present a hazard to its users.

4. Finally, City Car Park submits that even if contribution were awarded, City Car Park could recover it from Wilson Parking by way of damages for breach of contract by Wilson Parking.  I do not propose to deal with this submission as it involves a determination as to whether there was in fact a breach of contract by Wilson Parking and, if so, what would be the appropriate award of damages.

5. I return to City Car Park's submission that if s 6 were not to apply it would in effect be responsible to the plaintiff for breach of a non‑delegable duty, namely the duty to manage the car park safely.  However, in my view, it is not necessary to resolve this issue as it depends on an interpretation of cl 6(f)(7) that City Car Park was relieved of all responsibility and duty in relation to safety issues.  I have already found this not to be the case.

What duty of care did City Car Park owe the plaintiff?

1. Relevantly, s 5 of the Act provides that the care which an occupier of premises is required to show towards a visitor shall be such care as in all the circumstances of the case is reasonable to see that the visitor will not suffer injury or damage by reason of any such danger (s 5(1)).  In determining whether an occupier has discharged the duty of care, consideration is to be given to the factors outlined in s 5(4) which are not meant to be exhaustive.

2. I infer from the oral evidence that when Wilson Parking started to manage the car park under the management agreement in 1996, the wheel stops and lighting and signage were substantially in the same condition they were in when the accident occurred.  On taking over management, did Wilson Parking have a duty to inspect the car park with a view to identifying safety problems involving capital or structural expenditure and report to City Car Park?  In my view, it did not.  Its job was to monitor the position and report as outlined above.  It is clear that the plaintiff's claim allegations relating to the breach of duty of care are made out.  As an occupier before Wilson Parking commenced management under the management agreement, City Car Park had the same duty it had when Wilson Parking took over as manager.  This was to ensure that the car park did not present a hazard to its users.  However, as time went on, City Car Park was entitled to rely to a large extent on Wilson Parking's reports to it about safety issues.  This is particularly the case after formal minuted meetings commenced in 1997.

3. However, City Car Park's asset manager inspected the car park from time to time and parked his car in it when he attended meetings.  He knew or ought to have known of the potential hazard posed by the wheel stops.

4. The car park was open to the public and accommodated 595 cars.  Thus it is reasonable to infer that when full, there would be at least 595 persons using the car park.  There would obviously be a huge range of people using the car park.  Users entered the car park pursuant to a licence to enter granted by Wilson Parking as agent for City Car Park.  As owner of the car park, City Car Park was responsible for the provision and maintenance of items of a structural or capital nature, relevantly, lighting and wheel stops.  On the basis of the rather limited evidence before me, I find that the lighting and condition of the wheel stops were such that there was a real risk that users of the car park would not see the wheel stops and trip over them.  The danger to users of the car park could have been at least diminished had there been adequate lighting, painting of the wheel stops, appropriate signs or a combination of all or any of these things.  There is no evidence before me as to the cost or practicality of this work.  However, City Car Park was prepared to replace wheel stops which damaged some makes of car and resulted in cars being parked in a way as to cause obstruction to traffic on the ramps.  It would not unreasonable to expect City Car Park to improve illumination and painting of the wheel stops, to avoid the risk of injury of the sort which the plaintiff suffered.

5. The fact remains that City Car Park knew or ought to have known of the unsafe state of the car park as alleged by the plaintiff in 1996 and knew or ought to have known that the position was not remedied.  Wilson Parking as day‑to‑day manager of the car park knew or ought to have known of that hazardous condition and did nothing to express its concerns to City Car Park.  Wilson Parking had an obligation to provide and maintain appropriate safety signs.  It is not clear to what extent appropriate signs might have prevented or diminished the risk of injury from tripping over wheel stops.  Suffice to say that at least in relation to that aspect of safety, City Car Park was entitled to rely on Wilson Parking to fulfil its duty under the contract.

Claim for contribution based on breach of contract

1. Wilson Parking pleads that any loss or damage suffered by the plaintiff was caused by or contributed to by the breach of contract of City Car Park.  It is not apparent from the pleadings what the breach is that Wilson Parking claims resulted in the plaintiff's loss or damage.  As between City Car Park and Wilson Parking, the former made no promise to Wilson Parking in the management agreement to keep the car park safe, to provide lighting or to locate and ensure that the wheel stops were safe.  Under the management agreement, City Car Park undertakes to pay for capital expenditure which is properly incurred by Wilson Parking in its management of the car park.

2. In my view, the claim for contribution, based on City Car Park's breach of contract with Wilson Parking is misconceived and in any event, counsel for Wilson Parking virtually abandoned this aspect of its claim.

The amount of contribution

1. The making of an apportionment as between two parties of their respective shares and the responsibility for damage involves a comparison both of culpability (namely, departure from the standard of care of the reasonable person) and also of the relative importance of the acts of the parties, in causing the damage:  Coles t/a Glen Coles & Co v Montague Grant Architects Pty Ltd & Anor, unreported; FCt SCt of WA; Library No 950374; 12 June 1995, cited with approval in Boral Resources (SA) Ltd v Byrnecut Mining Pty Ltd [2001] WASC 408 at 36 (see also Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492).

2. In determining the amount of contribution to be paid to Wilson Parking by City Car Park, I take into account the division of responsibilities and duties as outlined above pursuant to the management agreement, the occupiers' respective knowledge of the potential risk and the obligation on City Car Park to improve the illumination and painting of the wheel stops.

3. Doing the best that I can with the evidence, I consider it just and equitable to award Wilson Parking 50 per cent contribution from City Car Park towards the plaintiff's damages.