Beydoun v Burswood Nominees Ltd - [2009] WADC 64

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: BEYDOUN -v- BURSWOOD NOMINEES LTD & ANOR [2009] WADC 64

CORAM: STEVENSON DCJ

HEARD: 11-14 & 28 JUNE 2007, 28 FEBRUARY & 30 JUNE 2008

DELIVERED : 24 APRIL 2009

FILE NO/S: CIV 1795 of 2004

BETWEEN: GHASSAN BEYDOUN
Plaintiff
AND
BURSWOOD NOMINEES LTD
First Defendant
WILSON PARKING AUSTRALIA 1992 PTY LTD
Second Defendant

Catchwords:

Tort - Negligence - Owner of car park - Occupier's liability - Plaintiff struck by car park exit boom gate - Duty of care - Content of duty of care - Breach of duty of care - Contributory negligence - Failure to keep proper look out

Legislation:

Evidence Act 1906
Civil Liability Act 2002 (WA)
Occupiers' Liability Act 1985 (WA)
Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947

Result:

First defendant breached duty of care owed to plaintiff
Plaintiff 30% contributory negligent

Representation:

Counsel:

Plaintiff:     Mr T H Offer
First Defendant              :     Mr C C Rimmer
Second Defendant         :     Ms F C E Davis

Solicitors:

Plaintiff:     Trewin Norman & Co
First Defendant              :     Jarman McKenna
Second Defendant         :     Jackson McDonald

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

Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512
Carey v Lake Macquarie City Council [2007] NSWCA 4
Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380
Gorman -v- Scofield [2008] WASCA 78
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
Modbury Triangle Shopping Centre Pty Ltd v Anzil & Anor (2000) 205 CLR 254
Pennington v Norris (1956) 96 CLR 10
Roads and Traffic Authority of New South Wales v Dederer & Anor (2007) 238 ALR 761
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431
Shellharbour City Council v Rigby [2006] NSWCA 308
Skulandar v Willoughby City Council [2007] NSWCA 116
Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317
Watch Tower Bible Society and Tract Society of Australia v Sahas [2008] WASCA 51
Wyong Shire Council v Shirt (1980) 146 CLR 40

STEVENSON DCJ:

Introduction

The plaintiff claims that he was injured on the evening of 10 September 2003 when he was struck by a car park boom gate while walking through the exit of a car park at the Burswood International Resort Casino. He was returning to his car when the boom gate "suddenly and without warning" lowered and struck him on the head ("the accident").
Although this action was entered for trial on 26 May 2005 and the hearing dates allocated on 18 December 2006, the commencement of the trial was beset with the usual late applications for amendments to pleadings and allegations of late or no discovery. As a result, by agreement and for reasons given at the time, this decision concerns the defendants' liability only, if any, to the plaintiff for the accident. Accordingly, no evidence was adduced in relation to the amount of any damages that the plaintiff might be entitled to if successful in establishing liability.
At the completion of the evidence, in the week of 11‑14 June 2007 the plaintiff became aware of the existence of what Mr Cole and Ms Day described as the "manual opening button". This button was termed for the purpose of the trial as "the courtesy button". However, as the evidence of Mr Marshall in 2008 disclosed, this nomenclature was misleading because the switch was required to be used every time a vehicle left the car park ‑ not just for non-paying vehicles.
The existence of this button or facility was not expressly referred to in the pleadings or in any discovered documents of the first and second defendant. Its potential relevance is obvious because its existence calls into question its purpose and, in particular, whether it could be used to stop the boom gate from lowering and, if so, whether the cashier was required to use it to ensure the safety of pedestrians passing through the car park. If witness statements had been exchanged prior to trial, this evidence would have been disclosed to all parties and nobody taken by surprise.
As a result of the evidence of the revealed existence of the courtesy switch and the purpose for which it was installed, including its function and manner of use by the booth operators, the trial was adjourned to allow the defendants to revisit their discovery and to allow inquiries to be made of the company which installed the courtesy switch in the booth. At the time the first defendant maintained that it did not have any documents relating to the boom gate which could be described as an operating manual. On 28 June 2007 the court was informed that the solicitors for the first defendant had been provided with 20 archive boxes which would need to be reviewed for any relevant material. The court was also told there was a need to make inquiries of third party contractors and suppliers of the first defendant. The position with respect to the discovery issues was canvassed at a further hearing on 28 February 2008 and the trial resumed on 30 June 2008.
On 30 June 2008 the plaintiff and the second defendant sought leave to re‑open their cases and to adduce further evidence arising out of documents produced as a result of further discovery by the first defendant. Against this background the evidence of Mr Frank Marshall was given in relation to the installation of the courtesy switch and its manner of intended operation. It follows, that the evidence of Mr Cole, Mr Harding and Ms Day, which was given a year earlier, must be considered and understood in the context of how the trial proceeded. Parties filed written submissions after the completion of the evidence on 30 June 2008.

The pleadings

The plaintiff claims damages against the defendants as a result of personal injuries allegedly sustained when he was struck by the boom gate at the exit of car park No 4 on 10 September 2003. The plaintiff contends that the boom gate at the exit of the car park "suddenly and without warning" lowered and struck him on the head while he was walking back to his car after he had visited the Casino.
Counsel for the plaintiff said in his opening address that there is no dispute between the parties that the plaintiff was in fact struck by the boom gate, and that the issue is what the defendants ought to have done to prevent the accident, if anything. However, the first defendant's defence pleads that it admits the plaintiff walked in the car park at the specified time but otherwise denied the plaintiff's claim. The second defendant pleads that it does not admit the plaintiff's claim in this regard.
The plaintiff claims against the first defendant on the basis, that at the time of the accident, it was the occupier of the premises within the meaning of s 2 of the Occupiers' Liability Act 1985 ("OLA"). This allegation is admitted by the first defendant. The plaintiff also claims that the accident was caused by the negligence of the first defendant or its employees or agents.
The plaintiff alleges the first defendant breached its duty of care because it:
(a)failed to take any or any adequate precautions for the safety of the plaintiff while he was on the premises;
(b)exposed the plaintiff to a risk of damage or injury of which it knew or ought to have known;
(c)failed to warn the plaintiff to proceed through the premises with caution;
(d)failed to ensure that the boom gate was adequately and properly maintained and repaired so that it did not lower while the plaintiff was walking past under it;
(e)allowed or permitted the boom gate to lower as the plaintiff was walking past under it; or
(f)failed to notice that the plaintiff was walking under the boom gate prior to it being lowered.
As against the second defendant the plaintiff alleges in par 6 of the amended statement of claim dated 13 August 2004 that, at the time of the accident, the boom gate was "being operated by or under the control of, an employee of the second defendant".
In response the second defendant pleads in par 5 of its amended defence dated 8 June 2007 that:
"5.As to paragraph 6 of the statement of claim the second defendant:
5.1says that at the time of the accident the second defendant provided cashier services to the first defendant;
5.2admits that at the time of the accident an employee of the second defendant was at the cashier's booth at the car park;
5.3says that the boom gate was at the exit of the car park and lowered automatically when a vehicle left the car park;
5.4says that the boom gate was part of the plant and equipment at the car park which plant and equipment was owned or controlled, repaired and maintained by the first defendant;
5.5otherwise it does not admit the allegations contained in paragraph 6 of the statement of claim."
The plaintiff relies on the following particulars of the second defendant's alleged negligence:
(a)a failure to take any or any adequate precautions for the safety of the plaintiff while he was on the premises;
(b)exposing the plaintiff to a risk of damage or injury of which it knew or ought to have known;
(c)failing to warn the plaintiff not to walk under the boom gate;
(d)allowing or permitting the boom gate to lower as the plaintiff was walking under it; or
(e)failing to notice that the plaintiff was walking under the boom gate prior to it being lowered.
Both defendants issued notices of contribution against each other pursuant to the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947. No pleadings have been filed by either defendant in support of the notices.
Both defendants plead in the alternative that, if the plaintiff was injured then the injury, loss and damage was caused solely, or contributed to, by the plaintiff's own negligence. The first defendant's particulars are that the accident was caused by the plaintiff's own negligence in that he:
"(a)of his own volition and with reckless disregard for his own safety, continued to walk behind a vehicle leaving the car park of the first defendant's premises despite being warned by the attendant on duty not to do so; and
(b)he failed to look where he was going at the relevant time given that the descent of the boom gate would have been patently obvious."
The second defendant contends that the plaintiff was negligent in
"(a)failing to keep any or any proper lookout;
(b)failing to take sufficient care for his own safety;
(c)failing to exercise his own commonsense;
(d)failing to take an alternative route;
(e)walking on the roadway at the exit of the car park in the area of the boom gate and behind the vehicle leaving the car park;
(f)failing to use the pedestrian footpath provided at the exit of the car park;
(g)ignoring a warning given by the second defendant's employee from the cashier's booth."

The evidence and parties opening submissions

Mr Beydoun

The plaintiff was born on 10 June 1948 and is 59 years old. Mr Beydoun said that on 10 September 2003 he went to the Burswood Casino at about 9.30 pm to "unwind". Prior to this he had been working in his food shop in Joondanna. He said that after about two hours in the Casino he decided to leave. In this time the plaintiff had played the poker machines and had a drink. The plaintiff does not drink alcohol.
The plaintiff said he left the Casino through the Riverside entrance to go to car park No 3, where his vehicle was parked. He described the route he took by reference to 11 photographs (Exhibit 1) which he said he took within a week of the accident. Throughout his evidence the plaintiff stressed that at the time of returning to his car it was dark and was raining, but not heavily. In cross‑examination he agreed he knew where to go based on previous frequent visits to the Burswood Casino, and that he had parked in the same place on previous occasions. He denied in cross‑examination having previously taken any particular notice of the car park booth or the boom gate for car park No 4, which was on the route taken to get to and from his car in car park No 3.
The plaintiff gave evidence that, on leaving the Burswood Casino premises he entered car park No 4 and walked towards the exit boom gate of the car park in a southerly direction in the car park towards the footpath on the left hand side of the exit gate. The plaintiff said he walked in this direction initially along a line behind the cars that would have been parked on the east side of the area shown in photograph No 3. It is not clear from the plaintiff's evidence whether he in fact used the footpath at all (to the extent it was available), but it is clear that he was struck by the boom gate at the car park exit as it lowered. The plaintiff said his car was parked in car park No 3 and that at the relevant time, it was in the same position as the white car shown on the right hand side of photograph No 3. At some point on approaching the exit gate the plaintiff changed direction and headed towards his car and, in the course of doing so, was struck by the boom gate as it lowered.
In examination‑in‑chief, the plaintiff said he could not recall whether he considered using the footpath and maintained that there was "all open road" available to him. He acknowledged he should have been walking on the footpath. He said he saw the road was clear and considered that it was safe to walk through the exit area of the car park. In examination‑in‑chief and in cross‑examination, the plaintiff denied that he heard any warning immediately before he was struck by the boom gate. The plaintiff said he knew where he had to go and did not see any signs or warnings about walking through the car park.
In cross‑examination the plaintiff said he visited Burswood Casino sometimes once or twice a week and on other occasions perhaps not for a period of up to three weeks. Although the plaintiff could not recall whether it was before or after his accident, he admitted he had been a VIP member of the Casino for a period of time. This membership carried with it the ability to enter a special room in the Casino where privileges were extended to customers while gambling. The plaintiff said that he is presently a VIP member, but it is a different membership to the previous one and relates to the Pearl Room.
The plaintiff's evidence in cross‑examination was at times difficult to follow and on many occasions less than clear. For example, he maintained that the car park was empty and that there were no cars present. He also said that if he had known that there was a pathway he would have walked on it. However, this evidence appears to be contrary to his knowledge of the area which he must have had based on his previous visits to the Casino. Whenever he could, the plaintiff stressed that it was dark but agreed, by reference to the photographs, that the lighting shown in the area of the exit and car park was generally sufficient. I note there is no express plea that the area was lit inadequately.
Mr Beydoun maintained in cross‑examination that he had not noticed the footpath on the night and thought there "could have been a barrier there". At this stage, the plaintiff was giving evidence by reference to the photographs without his glasses and, in fairness to him, it appears he was referring to the red paint on the kerbside of the footpath in the car park. This of course was not a barrier but simply highlighted the physical position of the footpath in contrast to the yellow painted kerbside, presumably intended to indicate the access way for pedestrians. The evidence was unclear but it is also possible that the plaintiff was referring to the red painted bollard on the side of the footpath adjacent to the boom gate. This bollard is intended to indicate the presence of the boom gate, and to restrict pedestrian access onto the exit roadway at this point.
The plaintiff accepted that the pathway was designated by yellow paint thereby indicating the pedestrian access way. The path itself was grey. In response to counsel's questions in cross‑examination as to whether he had ever walked past the exit boom gate prior to the accident, the plaintiff said he "could not recall". A short time later, the plaintiff said he had used car park No 3 "heaps of times" although he had perhaps only parked his vehicle at the west end on a few occasions. He accepted that he had used the footpath shown in photograph 11 which is on the north side of car park No 3.
The plaintiff attended the Royal Perth Hospital after the accident. In reply to questions from counsel for the first defendant he denied he had told medical staff at the hospital that he had not been walking on the footpath and that he had walked behind a car. He also denied mentioning at the time that he had been taking a "short cut". In answer to these questions, the plaintiff maintained he explained to the hospital staff where he had been hit on the head by the boom gate. He did not accept that they made any further inquiry about the circumstances of his accident.
Counsel for the first defendant then took the plaintiff through various applications for accident disability insurance cover, combined sickness cover and a travel accident policy (Exhibit 2). The plaintiff agreed that the signature on the various applications and proposal forms were his. He also accepted, having been taken to his personal income tax returns, that the amount of his taxable income was not the amount that was indicated on the various applications at the relevant times. His explanation was that the forms had been completed by his insurance advisor and that information would have been obtained from his accountant in relation to his income. However, the plaintiff accepted responsibility for the documents because he signed them, even though he said reading and writing was not his strength. In cross‑examination the plaintiff was taken to the relevant parts of the applications which highlighted the importance of disclosure.
In addition to the incorrect statements of the plaintiff's income, some of the applications did not disclose the plaintiff's pre‑existing medical history fully. For example, the application signed by the plaintiff on 22 May 2004 at p 98 of the first defendant's book of documents refers to the plaintiff's accident, the subject of these proceedings. It does not refer to a right shoulder injury disclosed in an application signed by the plaintiff on 29 August 2003, as having occurred in February 2003. The plaintiff was shown the application for insurance cover which he signed and dated 29 August 2003. The only medical history referred to in the application as a pre‑existing injury or condition is an "injury on the right shoulder (fully recovered)" in February 2003. Notwithstanding this, the plaintiff accepted that in the period March to July 2003 he had been consulting Dr Benson for dizziness, vertigo, depression and anxiety.
During cross‑examination the plaintiff accepted from his own experience of driving in Australia for a period of about 30 years, that in other car parks, the boom gate operated automatically. However, his evidence was that he did not know if the relevant boom gate operated automatically because he had never looked at it and had not noticed anything different. He maintained he "didn't notice any boom gate" at the time of the accident – by which I accept (allowing that English is not his first language) that he was saying he did not see the boom gate as it was lowering and immediately before he was struck. He said he did not know what "sort of system" was present at car park No 4. However, the plaintiff presumed that "every driver in Australia knows that" a boom gate comes back down after a car has driven through it.

In cross‑examination by counsel for the second defendant the plaintiff denied he had been walking between two cars at the time he was struck by the boom gate and maintained that "there were no cars at all". He also denied he had not been fully knocked to the ground and that he had continued to his car before returning to speak with the car park attendant. In the course of this evidence, he admitted that he abused the car park attendant because he thought at the time "he had done it deliberately". He denied the car park attendant told him to report the accident to Burswood Casino and that the attendant had indicated where to go for this purpose.
In re‑examination, the plaintiff said in response to the apparent overstatement of his personal income in the various insurance policy proposal forms, that he obtained the figures from his accountant. The plaintiff said his financial affairs included ownership of Copita Holdings Pty Ltd and a family trust which held investment properties. By reference to the relevant tax returns, it was shown that the Beydoun Family Trust No 2 for the income tax year of 2002 had a net income from its activities of $21,140 and, for the year 2003, a net income of $10,564. The plaintiff maintained he would have obtained the relevant information of his personal income from his accountant for the purpose of completing the insurance policy applications and that he "had no reason to think it was inaccurate". He denied he intended to deceive the insurers or underwriters of the policies of insurance.
In re‑examination, he repeated his evidence that he "presumed" that Burswood Casino had called Royal Perth Hospital ahead of his arrival and informed them of what had happened because they "appeared to know what had happened".
In some respects the plaintiff did not impress me as a reliable witness but in my opinion, he was doing his best to assist the court. I am not persuaded that he was not a credible witness (as much of the cross‑examination was intended to show) or that his evidence in relation to the fact of the accident and circumstances in which it occurred was not truthful. As mentioned, in assessing Mr Beydoun's evidence some allowance has to be made because English is not his first language. In making the findings of fact recorded below, I have had careful regard to my observations of the plaintiff as a witness and the way he gave his evidence. Obviously my assessment of the plaintiff as a witness is in relation to the alleged circumstances of the accident and is not binding on any later judge required to assess the nature and extent of his alleged injuries, and any loss and damage he may have suffered.

First defendant's opening submissions

On 13 June 2007, counsel for the first defendant made opening submissions (as the case stood at that time) and relied upon his written outline of submissions dated 12 June 2007. The first defendant admits that at all material times it owned and occupied the Burswood Casino complex including the relevant car parks. Further, the first defendant accepts that it has a general duty to take care for persons on its premises, including the plaintiff, on the basis that they are invitees. The first defendant also admitted that it owned the car parking equipment including the boom gate and the booth in which the second defendant's cashier was located.
The first defendant submitted that it had no obligation to warn the plaintiff of any risk arising out of or associated with the lowering of the boom gate. It was also submitted that the first defendant had no way of knowing that the plaintiff was about to walk under the boom gate at the relevant time as it lowered.

Mr Andrew Harding

The first defendant called Mr Andrew Brian Harding. Mr Harding was an employee of the first defendant from 1985 to 1995, during which time he worked in the parking/transport department in the positions of car park attendant and other positions until he became the parking manager. In his final position as parking manager, he was responsible for all the car parks at the Burswood Casino.
Mr Harding said the car parking payment facilities and the boom gates were installed in 2001 or 2002 (apparently there was a concern at the time about how customers would react to paid parking: car park No 3 was further away and free parking was maintained). He said Metro Parking was awarded the initial contract which included organising the installation of the necessary equipment, including the booth and, that for a period of about a year, it operated the car park for the first defendant.
Mr Harding's evidence was that the second defendant took over the parking attendant contract from Metro in about April 2003 (he accepted in cross‑examination it was probably in about April 2002). He said there was an agreement between the first defendant and the second defendant whereby the second defendant operated the car park on behalf of the first defendant. At the time he thought the agreement had been the subject of a written contract. As a result of these proceedings he learnt that the contract was in fact not signed. In cross‑examination by counsel for the second defendant Mr Harding was taken through a series of correspondence and the terms of the agreement between the parties whereby the second defendant agreed to provide "cashiering services" for the car park to the first defendant.
Mr Harding maintained the second defendant's cashiers were also obliged under the agreement to "look after the equipment" in the sense of maintaining it and advising the first defendant of any repairs or maintenance required. His evidence‑in‑chief was that the second defendant carried out minor repairs but it appeared from subsequent evidence that the second defendant obtained reimbursement from the first defendant for any expenditure of this nature.
Mr Harding was employed by the first defendant at the time of the construction of the car park and said the lighting was adequate and conformed to the appropriate Australian Standard. By reference to the photographs in Exhibit 1, he identified the relevant lighting in the car park and the "PortaFlood" lighting on the booth itself. He also confirmed that the two curved poles near the booth contained surveillance cameras. I note there was no direct evidence of the area covered by the surveillance cameras, in particular the camera which is located over the car park exit, and no evidence was adduced of any film of the accident or any explanation proffered for the lack of such evidence.
Mr Harding explained how the entry and exit procedures for car park No 4 operated at the relevant time. He said entry to the car park involved a customer taking a ticket from the "the ticket spitter", the yellow ticket dispensing machine adjacent to the car parking booth. The removal of the ticket from the machine caused the entry boom gate to rise automatically, to allow the motor vehicle to enter the car park. As soon as the vehicle passed over the pressure pads or electro‑magnetic loops located in the road (the loop detection system) after the boom gate, the entry boom gate would automatically lower, preventing access to other vehicles. He said that while the car remained on the loop detection system, the boom gate remained in the raised position. Mr Harding said he had personal knowledge of problems associated with the yellow ticket machine. These included the tickets jamming and the car park attendant having to clear the machine from time to time. He also said the boom gate had been knocked off by people driving through the entrance or exit on occasions. In relation to the entry boom gate, Mr Harding said that when the cashier was in the booth he or she could not prevent the automatic cycle operation of the boom gate from occurring.
In cross‑examination by counsel for the second defendant, Mr Harding explained the process of exiting the car park by reference to the loop detection system which caused the exit boom gate to lower. His evidence was that the cashier in the booth obtained the car park ticket from the customer and then inserted it into the cashier machine which by, reference to the markings on the ticket, calculated the time the car had been in the car park and automatically calculated the fee payable. The cashier would then inform the driver of the amount. Upon payment of the amount and completion of the transaction, the cashier then pressed a button on the till which raised the exit car park boom gate. This was referred to as the "paid button". Pressing the paid button automatically raised the boom gate. Constructed in the road "after" the boom gate is a "loop detection system" which is designed to determine when the vehicle has left the car park. As soon as the car has passed over the loop detection system, Mr Harding said that the electro‑magnetic process automatically triggered the boom gate to lower. Mr Harding said that this is an automatic operation by reason of the passage of the car over the loop detection system and that the cashier could not override the system. He said the purpose was to prevent a vehicle from leaving the car park without paying. He said the undercroft car park at the Casino was "pay on entry" so there were no exit boom gates at the exit of the car park. He confirmed that the original contractor had installed the equipment including the loop detection system.
Mr Harding said car park No 4 became fully automated after 13 October 2003 when the cashier services of the second defendant were terminated. This was before he left the employ of the first defendant, for purely commercial reasons on the basis that it was cheaper to automate the car park than have it manned by cashiers.
Counsel for the second defendant took Mr Harding through correspondence for the period 8 April 2002 to 28 August 2003 concerning the agreement between the defendants. By letter dated 8 April 2002 to Mr Harding, the second defendant proposed the terms upon which it was prepared to provide cashiering services at the Lot 4 car park for a period of 12 months commencing 1 May 2002. The consideration for the proposed service was to be calculated by reference to an hourly fee for the second defendant providing its employees who were "trained in car park operation and customer service" to man the car park booth. The letter referred to itself as a tender which was "merely a labour supply contract". The letter referred to an agreement which was to be subject to agreed terms. In this regard at p 8 of Exhibit 3 an "Agreement for the Provision of Cashiering Services" was exchanged between the parties.
The service to be provided was defined as "the Cashiering Services" as set out in schedule 1. Schedule 1 contains a daily procedure and specifies the process for the second defendant obtaining the booth keys prior to the commencement of a shift and also collection of a float from the first defendant's general cashier's office. Relevantly, par (e) of schedule 1 provides:
"(e)Recording transactions at Lot 4 Fee Computer
The only means by which the boom barrier may be raised is through the use of the boom gate release button activated by a transaction processed through the Fee Computer after validating the parking ticket."
By schedule 3 of the proposed agreement the service fee to be paid by the first defendant was to be calculated on an hourly basis at the rate of $17.50 per hour exclusive of GST for every hour that the services were provided for the specified hours and for any additional hours at the rate of $18.50 per hour exclusive of GST.
Clause 2.3 of the agreement provided:
"2.3The Contractor shall use cashiering equipment supplied by Burswood. Any additional machinery or equipment supplied by the Contractor shall, prior to its initial use, be inspected by Burswood's Property Operations Department. All equipment shall be maintained by the Contractor to a high standard."
The draft proposed agreement was prepared by the first defendant and was responded to by the second defendant by a letter dated 15 May 2002 (Exhibit 3). In this letter, the second defendant proposed that cl 2.3 be amended by the insertion of "supplied by the Contractor" after the words "All equipment". This suggested amendment was agreed to by Mr Harding in his reply email of 20 August 2002. The defendants appear not to have reached agreement in respect of public liability insurance requirements but in the second defendant's letter of 10 September 2002, relevantly, Mr Harding was advised:
"We must clarify that this agreement is for the provision of cashiering services, not the management of a car park. We are responsible for the provision of trained staff in a uniform. Our responsibilities and service fee do not extend to insurance or other items of an administrative nature."
Further, the second defendant advised Mr Harding by letter dated 21 February 2003:
"As discussed, we also believe it is appropriate for Burswood to cover public liability insurance as Wilson Parking are supplying labour only to the site and not managing the car park."
The second defendant's letter of 12 March 2003 confirms that there was a verbal agreement to change the labour rate paid by the first defendant for the services provided by the second defendant's employees. Finally, Mr Harding confirmed, by reference to his letter to the second defendant dated 28 August 2003 that:
"I regret to inform you that the contract for the provision of cashier services between Burswood International Resort Casino and Wilson Parking will cease from 0600 Monday October 13 2003."
Confirmation of the termination of the agreement between the defendants was made by Mr Harding as the first defendant's "parking manager".
Mr Harding confirmed there was no signage on the booth or in the area of the entry or exit of car park No 4 referring to the second defendant.
In cross‑examination by counsel for the second defendant, Mr Harding said the cashier was only expected to serve customers exiting the car park and "was not expected to have any control over pedestrians" in the area. He said there was a direct telephone line for the cashier to contact the Casino. This enabled the cashier to contact the car park office. He confirmed that the cashier was required "if approached" not to assist but to direct customers of the first defendant to the first defendant's "services or security officers". He identified the location of the main hotel security office in photograph 10 (Exhibit 1) as the plate-glassed area at ground floor level at the back of the car park attached to the hotel. He said the security camera near the booth transmitted surveillance to the security office. He admitted the first defendant was responsible for all repairs to the booth and boom gate except for what he described as minor repairs.
In cross‑examination by counsel for the plaintiff, Mr Harding confirmed that he expected the cashier's focus to be on the driver of the car at the time of doing their job, which was consistent with the specific job description. He confirmed the exit boom gate was short because it had been "knocked off" and not replaced. In my view, the failure of the first defendant to repair the boom gate to its full length is a material factor because the gap is much wider and constitutes an invitation for pedestrians to cut through.
Mr Harding accepted by reference to photograph 1 (Exhibit 1) that it was hard to see the exit boom gate because of the dark car behind it. He accepted that there was possible ambiguity or uncertainty [my words] caused by the yellow railing separating the footpath and car park No 3 on the other side of the access road. It should be noted that photograph 1 is taken from the viewpoint of the position from which the plaintiff says he approached the exit of the car park. Mr Harding quite properly, in my view, accepted that the picture would not be so clear at night time.
Mr Harding conceded that the Portalight on the cashier's booth was intended to provide sufficient lighting for the driver of the motor vehicle while completing the transaction, and was not aimed at lighting the area for the benefit of the first defendant's patrons leaving the Casino. He maintained that throughout the period of his employment in parking for the first defendant he had never been made aware that lighting in the relevant area had been raised as a safety issue.
During cross‑examination by the plaintiff's counsel, Mr Harding said the boom gates had been knocked off on occasions when the driver "didn't want to pay, or just didn't notice the boom gate when entering the car park". He described this as "ongoing issues" for the first defendant.
Mr Harding was also referred to a security incident report (not tendered) which apparently was completed by Mr Cole, who was the second defendant's employee or contractor on duty at the time of the accident. The report contained a note by a person to the effect that there was a common problem with pedestrians in the relevant area – but Mr Harding said he was not aware of that being an issue.
Mr Harding said in cross‑examination that it was possible to raise and lower the boom gate manually by releasing a lock in the red boom gate box to which the boom gate is attached. This would require, obviously, the cashier to leave the booth and walk to the red box which is located between the booth and the road on which the vehicles leaving turn left or right to leave the Burswood Casino complex. When pressed about the location of the button as to whether it was inside the booth, Mr Harding said "Unfortunately, no, it's in the boom gate".
Mr Harding gave his evidence unhesitatingly and to the best of his ability, given that the events had occurred some years earlier and that he was no longer employed by the first defendant. He answered questions directly and in a manner that was appropriate to the circumstances. I did not get the impression that he regarded himself as owing any loyalty to any party and he was objective in his style and manner of giving evidence.
At the conclusion of the first defendant's case, pursuant to s 79(c) of the Evidence Act 1906, counsel sought to tender the notes made by employees of Royal Perth Hospital as a business record following the admission of the plaintiff after the accident. The notes were referred to in cross‑examination of the plaintiff in an effort to discredit him as a witness on the basis there was a conflict between his oral evidence of the circumstances of the accident and the record of what he is alleged to have said at the time of his admission to the Emergency Department of the hospital. I am prepared to receive the notes for the limited purpose for which they were used and were sought to be tendered.

Second defendant's opening submissions

On 13 June 2007 counsel for the second defendant made opening submissions (as the case stood at that time) in addition to her written outline of submissions dated 8 June 2007. The second defendant says that it did not owe the plaintiff a duty of care in the relevant circumstances, including in particular, the contention that it did not control the lowering of the exit boom gate as this was part of the first defendant's facilities and occurred automatically after the departing vehicle had passed over the loop detection system.
It was said on behalf of the second defendant that, in these circumstances, its cashier could not do anything to prevent the lowering of the exit boom gate. For this reason it was submitted that the second defendant was not in control of the car park and the relevant equipment at the time of the accident in any material respect.
In summary, the second defendant submits it was not responsible for the plaintiff's safety as a pedestrian exiting the Casino based on the facts and circumstances of the case and therefore no duty of care was owed. The second defendant contended that the issues involve firstly, causation: What was the real cause of the plaintiff's accident? Secondly, if either or both defendants did owe a duty of care and were held to have breached that duty of care, what was the extent of the plaintiff's own contributory negligence for the accident? Thirdly, if both defendants were found to be negligent then what was the proportionate liability as between themselves for the plaintiff's accident? In this regard the second defendant submits that its employee's services were "confined" to provision of cashier services and it relied in particular on the evidence of Mr Harding (the first defendant's witness) in that the second defendant had no control over pedestrian access and was not responsible for pedestrian ingress or egress over or through the car park.

The second defendant called two witnesses, Mr Peter Cole (who was the second defendant's employee on duty operating the cashier service at the time of the plaintiff's accident) and Ms Kimberly Day who was, at the time, the second defendant's supervisor for the services at car park No 4.

Mr Peter Cole

Mr Cole was employed initially by the second defendant in June 2001 and worked as a car park attendant/cashier for the period March 2003 to September 2003 at the Burswood Casino. He presently works for a company related to the second defendant in the area of security.
Mr Cole said that during the relevant period at car park No 4 he worked on a rotating roster which involved at least five full shifts per week including day and night time work. Mr Cole referred to the cashier's booth as a "dog box" and explained the entry and exit procedures for vehicles by reference to the photographs in Exhibit 1. His description in this regard was consistent with previous witnesses, except to the extent noted below. He said there was a digital display on the cashier of the actual cost and that once the register had validated the ticket and the financial exchange of money was completed he would "just hit an enter key. This would automatically time stamp the ticket for later reference for the parking and the boom gate would operate and raise", allowing the vehicle to exit.
Mr Cole described how he would check whether the preceding car had cleared the boom gate before automating the raising of the boom gate to allow the customer whom he had just served to exit the car park. His evidence‑in‑chief was that, on occasions because of the length of some vehicles, the boom gate did not automatically lower because the length of the vehicle interfered with the electronic electro‑magnetic loop until it had moved sufficiently far away to stop interference, with the consequence that the boom gate could then lower. He described how the exiting vehicle often had to wait before turning onto the access road adjacent to the car park. Based on this evidence, I infer that it was necessary whenever a preceding vehicle had gone through the exit boom gate, for the cashier to check that it had in fact departed the car park exit before allowing a further vehicle through. As Mr Cole said, once the first vehicle had departed sufficiently to allow the exit boom gate to automatically lower, he would then activate its rising by the enter key in the booth to let the next customer out. Relevantly in this regard, Mr Cole said that there was "nothing I could do to interrupt the lowering of the boom" from the booth. This was, in effect, automatically controlled by the passage of the vehicle over the sensor in the road. Based on this evidence, the position is that the timing of the lowering of the boom gate is governed by the length of the vehicle. If it is a smaller vehicle it will lower sooner than a longer vehicle and the time of lowering is also affected by any need for the vehicle to wait before it can enter the exit road.
Mr Cole said that he was physically located in the booth on a chair with the exit and boom gate to his back. Therefore he was facing the exiting vehicle at 12 o'clock and looking at the driver at 2 o'clock. He said that, as the window was not full sized, he would lean out of it and twist sideways in the course of completing a transaction with the customer. He said his entire focus at all times was on the "client" (in this case the driver). This was necessary because of his training and also, common courtesy. He emphasised this focus by reference to the fact that his training had made him aware that some clients in fact are lip reading in the course of the conversation. He said there was not much lighting in the booth due to the possibility of "washing out" the security cameras but that two floodlights lit up the customer's car and the exit area.
Mr Cole recalled the evening of the plaintiff's accident and an incident which he thought occurred at about 10.30 pm. He said he was busy at the time as a show had just finished. The extent of his "business" was described by reference to his evidence that he was serving a vehicle exiting the car park about every 10 to 12 seconds. I infer this is the rate of departures at peak traffic times.
Mr Cole said he was conducting his duties normally and had completed a vehicle transaction. He said that a "long" car was sitting in the exit lane and the boom gate was in the upright position. Another car was approaching the booth and prior to the "long" vehicle completing its exit, he saw a small group of individuals on the footpath heading away from the Casino towards car park No 3. He said he "noticed that they deviated from the safety of the footpath" and made to walk between "the exiting car and the oncoming car". When he "cautioned" the party, a woman in the group looked at him. He did not know whether she had heard him but assumed she had because he looked at her. He said words to the effect, "Watch out or be careful of the boom gate". Relevantly, he could not give any details of the people because he said: "… I deal with so many people in the space of a few minutes". In my opinion, this evidence indicates the high degree of pedestrian traffic which, at peak times, is trying to leave the Casino complex at the same time and place where vehicles were also attempting to leave the car park. The risk of conflict between the pedestrians and the cars is in my opinion, was high.
Mr Cole said on completing the transaction with the new vehicle, he turned to make sure the exit was clear before validating the existing customer's ticket and activating the raising of the exit boom gate. He said he was using peripheral vision but saw a gentleman whom he thought was "staggering" or had "lost his balance". He was sure that the person did not fall to the ground.
He said that some time later he was approached by a female and a gentleman whom he now knows as the plaintiff. He said he was informed that the plaintiff had been hit by the boom gate and his response was that there was nothing he could do. Mr Cole pointed the person to the security office, which was visible from the booth. However, he said the group then turned around and walked off towards car park No 3. He said he called security and forewarned them of the incident and suggested that video‑surveillance tape might be required. There was mobile bike security at the Casino and, unless there was a life‑threatening situation, he said it was not his practice to leave the booth. He also had access to an internal phone. He said he had been instructed not to leave the booth.
In cross‑examination, Mr Cole was unable to recall how many people were in the party that he warned and was unable to say whether the woman who looked at him at the time he gave his caution was the same woman who approached him in relation to the plaintiff's alleged accident. He was unable to say whether the plaintiff was in the group. Mr Cole said he thought the car park had been "full on" that night and agreed that it contained about 400 car bays. He confirmed that there was a car waiting to exit onto the road and that he would in those circumstances check to see if the exit lane was clear before activating the boom gate to raise it to allow his customer to leave the car park. He said the party of pedestrians he saw were on the footpath and stepped off it onto the exit road.
During this evidence, he said the following day he was asked by an employee of the first defendant to write a statement in respect of the plaintiff's incident. The statement was not provided by way of discovery by the first defendant and the plaintiff's counsel called for its production. I was informed by the first defendant's counsel that he was unaware of the existence of the statement and would make the necessary inquiries.
Mr Cole said he had spoken to employees of the first defendant's parking office after two possibly similar incidents. One involved an elderly woman in broad daylight who was apologetic and embarrassed that she "got caught" because she had walked into the boom gate. There were other occasions when younger patrons messing around would pretend to be hit.
Mr Cole said he was "aware of numerous occasions where people walked through the boom gates". He appears to have had various concerns but described his main "concern" at one time as being the protrusion of an electrical box near the footpath. He also said that there was no light on the exit boom in the same way that the entry boom was specifically targeted. He attributed this to the first defendant's concern to ensure that the security cameras were not "washed out".
In cross‑examination by the plaintiff's counsel Mr Cole again was taken through his memory of the incident on the night of the plaintiff's accident. He said he saw people on the kerb which was about 18 feet away from him. He said the pedestrian traffic was getting busy and they were predominantly on the footpath. Notwithstanding this, he did not think about the presence of pedestrians when releasing the boom gate so it could rise to allow vehicles to exit the car park. During the service of the vehicles, he said his head was down in order to talk to the customer.
In the course of his cross‑examination by plaintiff's counsel, Mr Cole gave evidence of the existence of a button in the booth which was used to allow the first defendant's courtesy vehicles or gardening vehicles to exit the car park without provision of a ticket. He said this was under the bench and was designed to raise the exit boom. He described other circumstances when this button was used with permission. In the course of this evidence he said (and there is no expert evidence to this effect) that, if the boom gate hits a vehicle then it should retract, by which I assume he meant upwards. However, in reference to the courtesy button, his evidence was that he "couldn't guarantee it would stop the downward movement of the boom gate". This was explained by Mr Cole on the basis that "we tried to use it [for this purpose] but it didn't always work". He said, "it would stop the boom coming down sometimes".
In respect of the courtesy button, Mr Cole's evidence was that "We thought it was an override switch but I was told it was not intended for this purpose." He described the switch as a "manual override" which, he understood from his employer, had been installed for the purpose of allowing the boom gate to be operated when it was not a normal transaction with a paying customer. He inferred that it was to avoid the need to write out a fictitious ticket and to insert it into the cash register to enable the release to be operated. He said the "button was there to negate that".
Mr Cole also said that the exit boom was shorter than initially installed because it had been damaged by a car. Notwithstanding this, he said it still functioned normally and there was no need to replace the missing length of the boom gate (as mentioned above, I disagree).
In cross‑examination Mr Cole said it looked like the person involved in the incident had "lost his balance". He maintained he did not get out of the booth at any time. He also maintained his evidence-in-chief that the person who approached him walked off and that there was no indication of any injury. He said he did not call security. However, when subsequently approached by a lady "several minutes later", based on what he was told by her he "initiated security". He said he was again approached in the booth by the group but that they went off to car park No 3. His evidence in cross‑examination was also that he saw pedestrians going between the vehicles. He confirmed that the exiting vehicle had "control of the boom gate". He said there were "heaps of people" in the car park and that the "majority" stuck to the footpath.
In re‑examination Mr Cole confirmed that "quite often" individuals had pretended to be struck by the boom gates and that the elderly lady was not injured but was more embarrassed because the incident occurred in broad daylight. The operation of the courtesy button was explained. Notwithstanding its operation once the boom gate had been raised by use of the button, the cashier had no control over lowering it, because that required the vehicle to pass over the loop detection system. I note there was no evidence of how the exit boom gate would be lowered if it was raised using the usual button for paying car park customers, or when using the courtesy button in circumstances where no vehicle in fact proceeded through the exit to its bay, to trigger the lowering of the boom gate by passing over the loop detection system.
Mr Cole was giving evidence about matters and his work practices which had occurred some four years earlier. Understandably this was not an easy task due to the lapse of time. I have no hesitation in accepting that Mr Cole gave his evidence to best of his ability and that it was generally reliable in its content, but not in every respect.

Ms Kimberly Day

Ms Day has been employed by the second defendant for about seven years, initially as a parking attendant and, from about 2002 onwards, as an operator/supervisor. She is familiar with car park No 4 and was responsible for its staffing by the second defendant. She confirmed that the cashier's role was to serve customers exiting the car park by obtaining their payment.
Ms Day said she had worked in the booth on at least two occasions and was familiar with the equipment in the booth at the relevant time. She said there was a button located on the side wall between the bench and the window which she described as a "manual opening button" which was used if the till was not working or to allow a vehicle to pass without paying. She said that the button, if pushed, caused the exit boom gate to rise and the loop detector then ensured it lowered after the vehicle had driven over it. Her evidence was that she was involved in causing the installation of the button because the cashier was otherwise required to leave the booth and manually operate the control boom from the red box to which it is attached. Her evidence was that the manual opening button could not be used to interrupt the lowering or prevent the lowering of the exit boom gate once this process had commenced.
Ms Day was not cross‑examined by counsel for the first defendant.
During cross‑examination by counsel for the plaintiff, Ms Day said she had pressed the manual opening button on occasions. She confirmed that it was shortly after she was involved with the car park that she caused Marshall Beattie Pty Ltd to install the button "at the first defendant's instigation". She was unable to recall precisely when the button was installed. Counsel for the plaintiff called on the first defendant to provide the relevant documentation concerning the installation of the "manual opening button". The matter was adjourned overnight and for a further period to enable the first defendant to make all necessary enquiries. In re‑examination, Ms Day said there was no button under the desk (as opposed to the manual opening button which, she said, was located on the side wall between the bench and the window).
Ms Day impressed me as a witness and I accept her evidence as being credible and reliable.

Mr Frank Marshall

On 30 June 2008, on the resumption of the trial, the plaintiff was granted leave to re‑open his case to adduce evidence from Mr Frank Marshall of Marshall Beattie Pty Ltd. As already mentioned, the evidence of Mr Cole and Ms Day must be understood in the context of the later evidence of Mr Marshall. Mr Marshall's evidence came to light after further discovery by the first defendant and inquiries made by the second defendant. Both the plaintiff and the second defendant sought to adduce the evidence of Mr Marshall and it was agreed that the plaintiff would be the party to call him.
Mr Marshall is a director and the service manager of Marshall Beattie Pty Ltd which is involved in the supply, installation and service of automated access gates, boom gates and other automated access systems for all types of premises, including car parks. He was familiar with the equipment in car park 4 at the Burswood Casino and said that they began looking after and servicing the equipment before September 2003.
Mr Marshall said he was involved in the installation of a direct line from a switch which was installed in the booth to the boom gate. The switch by-passed all the other equipment to enable the cashier to raise the boom gate. In evidence‑in‑chief, he said the boom gate would raise the moment the button was pushed, irrespective of its position, which included if the boom gate was on its way down. He was able to recall the precise location of the button in the booth. Based on his experience, he estimated that it would take about 2 to 2 ½ seconds for the boom gate to lower from the vertical position back to its horizontal position.
In cross‑examination by counsel for the second defendant, Mr Marshall confirmed that the lowering of the boom gate was automatic, and that this occurred as a result of the vehicle passing over the magnetic loop. In other words, the lowering of the boom gate was not operated from the cashier's booth but was an automatic process as a result of the magnetic loop detection system in the road. Mr Marshall's term for the courtesy button was "an open switch".
Importantly Mr Marshall said in cross‑examination when asked about the purpose of the switch:
"In that particular instance, it was put in for raising the boom gate because there was no other activation for the boom gate."
Later the position was clarified by Mr Marshall when he said "the only reason that switch was put in was because the till did not operate. That's the only reason." On this basis he agreed with counsel that it was "an exit switch" and not a "safety device". This is consistent with his evidence‑in‑chief when he indicated that the till or the "fee computer" was damaged and no longer raised the boom gate.
The purpose and use of the switch was clarified by Mr Marshall and confirmed when he said that it was used every time by the cashier to open the boom gate when a vehicle needed to leave the car park. So, if the originally installed till and fee computer had been working properly, the till itself would open and automatically raise the boom gate to allow the vehicle to leave. But, because of the damage, Marshall Beattie Pty Ltd, as evidenced by its tax invoice dated 3 June 2003, installed the manual switch (see Exhibit 5). The tax invoice described the fault as "Damaged Till and need to install manual switch so the gate will work via installed switch". The action taken, as recorded on the tax invoice was "21/05/03 Run cable from cubicle to exit boom. Installed temporary switch to manual open." The total cost of the work was $187 and the invoice was directed to the first defendant. The tax invoice bears a date processing stamp of 18 June 2003. It also refers to the first defendant's order number, being 304939. It appears that this is the only documentation that has been located concerning the installation of the manual switch and its purpose.
Mr Marshall's evidence was concise and to the point. In summary on 21 May 2003 because the till in car park No 4 was damaged, he caused a manual switch to be installed in the booth to enable the cashier to raise the boom gate to allow vehicles to leave. Prior to this, the boom gate raised automatically on the opening of the till or, on production of the customer's receipt confirming payment. Although the boom gate could be arrested in its downward motion by pressing the button again (which would cause it to raise), the total time for the boom gate to move from the horizontal position to the vertical position, either upwards or downwards was about 2 ½ seconds.
The switch had no role to play in the lowering of the boom gate as this occurred automatically after the exiting car had passed over the magnetic loop detection system in the road. I find that, from May 2003, the operator therefore used the switch on every occasion to raise the boom gate but that the boom gate automatically lowered itself.

Findings of fact

On the basis of the oral evidence adduced in this case, the documentary evidence and taking into account my assessment of the witnesses, I make the following findings.

(a) Operation of the car park No 4 entry and exit procedures

At all material times car park No 4 at the Burswood International Resort Casino and the surrounding car parks and buildings were owned and occupied by the first defendant. As such, the first defendant at the relevant time was the occupier of the premises within the meaning of s 2 of the Occupiers' Liability Act 1985, including, in particular, car park No 4 and the car parking booth and associated equipment.
At the relevant time, the car park No 4 was "staffed" by employees of the second defendant, pursuant to an agreement made in or about April 2002. The agreement is evidenced by correspondence between the defendants, commencing 8 April 2002 and concluding 28 August 2003, when the first defendant advised the second defendant that its contract for the provision of "cashier services" at car park No 4 would cease from 13 October 2003. I have previously referred to relevant parts of the correspondence and provisions of the draft proposed agreement for the provision of cashiering services. This agreement was not executed by the defendants in final form.
I find that the agreement between the defendants required the second defendant to provide its employees to staff the booth in the car park for the sole purpose of providing cashier services. This service and its related activities involved sole responsibility for conducting cash transactions with the first defendant's patrons who used the car park.
The booth occupied by the second defendant's employees and the equipment associated with the booth operated by the employees, was provided and maintained, by the first defendant. To the extent any maintenance or repairs were necessary then, although the second defendant was responsible for bringing the need to the attention of the first defendant, it was the first defendant's obligation to ensure that the equipment was operating properly and was maintained accordingly. For this reason, I find that the first defendant was solely responsible for the equipment used by the second defendant's employees. This included, in particular, the operation of the exit boom gate and the procedures that the cashier necessarily had to follow in order to perform his or her work duties.
I find that the boom gates and operating procedures which were in place at the time of the plaintiff's accident were changed to a fully automated system and different physical layout shortly after the incident.

(b) The manner of vehicle ingress and egress to the car park

I find entry to the car park was by the access way on the right side of photograph 1 (Exhibit 1). This required the entering driver to position his or her vehicle adjacent to the yellow ticket dispensing machine. The machine dispensed a ticket which the driver then pulled from the machine. The removal of the ticket from the machine automatically caused the entry boom gate to rise allowing the vehicle to enter the car park. Immediately after the boom gate there is a loop detection system built into the road. This works electro‑magnetically by recording the passage of the vehicle over the loop. Once this occurred, it automatically causes the entry boom gate to lower, thereby preventing other vehicles from entering the car park.
I find that the car park held about 400 vehicles and that at the time of its construction, it complied with the lighting requirements of the relevant Australian Standard.

(c) Pedestrian access and departure routes

A detailed plan of the car park and its adjacent position to the Casino was not produced. The evidence of the plaintiff, which I accept, is that it was necessary on departure from the Casino through the Riverside entrance to enter the area of car park No 4. Photographs 1, 3 and 7 depict the viewpoint of a pedestrian exiting the Casino using the Riverside entrance and walking to car park No 3. Photograph No 1 shows that the kerbing of the footpath adjacent to the exit lane of the car park is painted in part red and in part yellow. It is also apparent that the footpath on the Casino side of the booth is partly covered by vegetation (Photograph 1). There is no other photograph of the commencement area of the footpath at this place. Therefore it is not possible to make any findings about the start point of the footpath on the Casino side but the evidence of the plaintiff was that he was walking in the car park. If pedestrians are at this stage already walking in the car park I infer that that the intention is that they go onto the footpath where the kerb is painted yellow for the purpose of passing the exit booth of the car park.
There is a red bollard on the footpath opposite the point where the boom gate would have reached, if it had been of its original length (see photograph Nos 2, 4, 8, 9, 10 and 11). The significance, if any, of the different colour scheme on the kerbing was not explained in evidence. On the road leading to the exit of the car park, some of the road side kerbing is painted red and in other places it is painted white (Photograph 4). The kerb on the access road between the two car parks on the car park No 3 side is painted red and there is a yellow painted barrier between the footpath and that car park. The kerb surrounding the cashier's booth is painted yellow. The footpaths themselves are grey. Down ramps from the footpaths onto the road have blue edged painting. I am unable to discern any obvious or rational explanation for the different colours used in the different locations. The boom gate "danger area" on the road at the entry and exit point to the car park is not marked by any makings or colour on the road pavement. Apart from the single bollard on the footpath there is no other railing or fencing that would prevent pedestrian access on to the road in the danger area or to guide pedestrians onto the footpath.

(d) Pedestrian use in conflict with cars using the entrance and exit to the car park

I find, as can be seen in the photographs (Exhibit 1) that, at the relevant time, pedestrians used the car park entrance and exit areas together with the footpath on either side to access the Riverside entrance of the Casino to and from adjacent car parks and areas. This is an obvious congestion point and in my opinion there is a real, and not fanciful, risk of the likelihood of conflict between pedestrians and motor vehicles in this area. The flow of pedestrian traffic and car park traffic was all "funnelled" to one exit point at the booth.
The evidence is that vehicles passed through the exit boom gate at the rate of one vehicle every 10 or 12 seconds in peak periods. This also is obviously a peak time because pedestrians will be present as they attempt to walk to car park No 3. The first defendant knew and was aware of the risk of pedestrian and vehicle conflict. On the evidence of the witnesses who operated the cashier booth, although it was not part of their job description, they did on occasions call out to pedestrians to take care as they used the manual switch to open the boom gate to allow vehicles to exit the car park.
The risks and danger to pedestrians were increased, in my view, as a result of the failure of the first defendant to reinstate the boom gate after it was shortened as a result of damage. The shorter boom gate created a much wider gap on the road, which was an open invitation for pedestrians to walk on the road.

(e) Car park exit procedures

On arrival at the cashier's booth, the driver of the car handed the car parking ticket to the cashier. The cashier then inserted the ticket into the cashier machine which recorded the total time of the use of the car park and automatically calculated the fee payable by the customer. The cashier informed the customer of the amount required to be paid by the customer. On completion of the transaction, the exit boom gate opened automatically due to the cashier pressing the enter key or validation button on the till. This automatic opening of the boom gate as part of the operating procedure was changed when the till was damaged.
The till in the booth was damaged sometime before May 2003. As a result, Marshall Beattie Pty Ltd installed a separate manual switch in the booth on 21 May 2003 to enable the cashier to open the boom gate for the exit. The design purpose of the manual switch was to raise the boom gate. It had no lowering function or purpose. From this time until the plaintiff's accident on 10 September 2003, the cashier operated the manual switch separately each time a vehicle wanted to leave the car park.
The only way to avoid having to press the manual switch on each occasion was if the cashier left the booth and used the lock in the boom gate box to lock open the boom gate arm. When locked open, using the switch in the boom gate box, the boom gate would not lower automatically after the departing car had travelled over the magnetic loop detection system in the road. This is in contradistinction to what occurred when the cashier used the manual switch in the booth – after which the boom gate would automatically lower itself as soon as the vehicle had passed over the detection system. There was no evidence of the frequency with which the cashiers used to lock open the boom gate from the boom gate box.
During the transaction, the cashier was required as part of the job description to focus on servicing the customer, the driver in the car. This was his or her primary focus. I find in the circumstances of this case, and the contractual arrangements between the first and second defendants, that the cashier had no contractual responsibility for pedestrians in the area of the booth by reason of the manner of its configuration of the equipment and the resultant automatic lowering of the exit boom gate.
In any event, I note that the plaintiff's accident was not caused by the raising of the boom gate as a result of the act of the cashier pushing the manual switch. Rather the plaintiff's accident was caused as the exit boom gate was lowering, which was an automatic design feature of the equipment and machinery owned, installed, maintained and operated by the first defendant. The cashier had no control over when the boom gate would lower.
I accept that the cashier could interrupt the lowering of the boom gate by pressing the manual switch in which case it would rise again. The switch only raised the boom gate. However, the evidence is that the time for the boom gate to travel from the vertical position to the horizontal position was about 2½ seconds. Therefore the system was not designed or intended to be utilized as a safety backup to protect pedestrians. The lowering of the boom gate was part of an automated system which did not concern the cashier, whose primary function was to serve the drivers of cars exiting the car park. The booth was not configured so as to allow the cashier to provide a safety role for pedestrians who might be struck by the boom gate. There was evidence that the cashier had to get up and lean out of the booth window to see the relevant area properly.
The lowering of the boom gate was an automatic result of the exiting vehicle passing over an electro‑magnetic loop detection system built into the road surface after the boom gate. This system required the exiting motor vehicle to move a certain distance past the loop system. On reaching this point the exit boom gate automatically lowered itself. I find there was no effective or proper mechanism available to the cashier to interrupt or prevent the downward movement of the boom gate. There is no evidence of how the exit boom gate can be lowered by the cashier in the booth in circumstances where it is raised, except for the vehicle passing over the loop detection system. However, there was evidence that the boom gate could be operated manually from the red box to which the boom gate is attached, that is externally to the booth, and I find that this mechanism would allow the boom gate to be raised or lowered from this location.
Although there was evidence that, possibly in some circumstances, the courtesy button might have prevented the exit boom gate from lowering it was not designed for this purpose. It was installed for the sole purpose of enabling the cashier to raise the exit boom gate. The lowering or closure of the boom gate was dependent on the loop detection system. For this reason, the courtesy button was not a "manual override" switch to control the downward movement of the boom gate at any particular point in time.
I find operators looked to see if a preceding vehicle had in fact exited the car park after passing the exit boom gate because of the requirement that the boom gate be lowered in order to raise it by pressing the manual opening switch. This required the cashier to check that the preceding vehicle had activated the loop detection system. Mr Cole said that some vehicles by reason of their length interfered with the magnetic reading of the loop detection system while waiting to enter the access road after having passed through the exit boom gate. During this time the boom gate did not lower. For this reason, it was necessary to check the position of the boom gate before allowing the next vehicle to depart. In these circumstances, there was unpredictability about when the exit boom gate would lower. It was entirely dependent on whether the exiting vehicle had moved sufficiently far away from the loop detection system to allow the automatic lowering of the boom gate. It follows that the time at which the boom gate would automatically commence to lower was not predictable. It was dependent on the position of the exiting motor vehicle and its length.
At the same time the first defendant knew that its customers using the Riverside entrance to the Casino were also exiting through the area of the entry and exit to car park No 4. There was no evidence of any other pedestrian exit from this side of the Casino. At all material times, the first defendant knew that its customers were using the road which was also the exit and entry road for cars using the car park. No signs appear to have been erected to warn pedestrians that they should not walk on the road and, critically in my view, no barriers or warnings were installed on the footpath to prevent pedestrians from taking a short cut through the exit and entry lanes of the car park. There is no evidence of any attempt to manage pedestrian access through this area, which was obviously extremely congested by pedestrians and cars at peak times. Added to the mix is the unpredictability of the time when the exit boom gate would lower. It was unpredictable in the sense that, the stage at which it commenced lowering, was dependent on either the position of the exiting car or the length of the car as it waited to enter the access road. There was also evidence that it was maintained in the open position at certain times and I infer that this was at peak periods and when the till was broken.

(f) Circumstances of the plaintiff's accident

The plaintiff went to the Burswood Casino on 10 September 2003 in the evening. He left the Casino at about 10.30 pm. While at the Casino, he played the poker machines. He did not drink any alcohol. He left the Casino via the Riverside entrance and entered car park No 4 on his way to car park No 3 where he had parked his car. While in the car park, he approached the exit laneway travelling in a south-westerly direction. I find that the car park was busy and that there were other pedestrians in the area also leaving the Casino at the same time.
At the relevant time Mr Cole was on duty as cashier in the booth on behalf of the second defendant. He was serving vehicles leaving the car park on a frequent basis. It was Casino "rush hour" as a show had just finished. I accept that after serving a customer he noticed a group of pedestrians on or about the footpath and that he warned them to watch out for the exit boom gate. This warning was made in between serving customers leaving the car park. Having given the warning, Mr Cole turned his attention to his next customer. I am not persuaded on the evidence that the plaintiff was one of the persons to whom Mr Cole called out his words of warning or that the plaintiff ignored a warning given by Mr Cole from the cashier's booth.
I find that a short while later Mr Cole observed the plaintiff after he had been struck by the boom gate when it lowered. He did not see the plaintiff on the ground but the plaintiff was staggering.
I find that the plaintiff was struck by the boom gate at the exit of car park No 4 as it lowered shortly before midnight on 10 September 2003. At the time it was dark but there was artificial lighting in the area aimed specifically at ensuring the cashier in the booth could see and deal with the driver of the car exiting the car park. It did not highlight the boom gate itself.
The plaintiff was walking on the road pavement under the boom gate, having stepped off the footpath to cut across the road to his car in car park No 3. As he approached the boom gate, it was in the raised position and suddenly and without warning it lowered. In the course of coming down to the closed position it struck the plaintiff. I do not make any specific findings about where the plaintiff was struck or what injuries he suffered, as this should be determined at the trial on quantum.
As mentioned, the boom gate lowered because the car exiting the car park moved off or passed over the loop detection system sufficiently to cause the boom gate to lower automatically. The timing of when the boom gate would lower varied depending on the length of the vehicle and therefore there was uncertainty and an inevitable unpredictability from the viewpoint of pedestrians as to when the boom gate would commence its downward path to the closed position. It follows that the plaintiff walked behind the exiting car and under the boom gate.
I find that the plaintiff should have kept a proper lookout in view of his knowledge that he understood and expected the boom gate to lower automatically at some point in time. In the circumstances he failed to take sufficient care for his own safety, in crossing between the exiting traffic, in failing to take an alternative route and in failing to notice the lowering boom gate.

Did either defendant owe the plaintiff a duty of care, if so what is the scope of the duty?

As mentioned, at the commencement of the trial the usual pleadings issues arose. However, this matter has had a somewhat unusual path as there was a substantial delay in the evidence as a result of further discovery of documents by the first defendant and consequential enquiries made by the parties relating to the boom gate equipment. For this reason I have set out above the first and second defendants opening submissions to record the position they adopted in 2007 at that stage of the action.
It is trite law that the plaintiff must establish that each defendant owed him a duty of care and that the duty of care, whatever its content, was breached by the defendant, and that the breach caused injury to him and resultant loss and damage.
The first defendant accepts that as owner and occupier of the premises at the relevant time it owed a general duty to the plaintiff to take reasonable care to avoid foreseeable risks of injury to him as an entrant upon the premises. The plaintiff pleaded its cause of action against the first defendant under the OLA and also in negligence. The plaintiff relies upon the same particulars of alleged failure to take care in each case.
In this State there is an unresolved controversy arising out of two lines of authority as to whether there is any longer a common law duty on occupiers of premises, or whether the common law duty has been replaced by a single statutory cause of action under the Occupiers' Liability Act 1985: Watch Tower Bible Society and Tract Society of Australia v Sahas [2008] WASCA 51 per Pullin JA at [9]. In view of the way in which the plaintiff pleaded his case and having regard to how the case was conducted by the parties at trial nothing arises out of this legal conundrum in this action.

I accept that the authorities establish there is no duty of care to protect an entrant from the encounter of everyday risks which the entrant must avoid by taking care for his or her own safety. It is also the case that the duty of care is not to prevent or eliminate "obvious" hazards which could possibly be an occasion of harm: Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512.
I have also had regard to the proposition that an occupier is entitled to assume that entrants will exercise reasonable care for their own safety: Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 at 478, 480.
In my view this is not a case where the plaintiff "ignored the obvious" or acted in a foolhardy or reckless manner, such that the risk of harm was entirely his. The first defendant's duty was to take reasonable care for pedestrians exercising reasonable care for their own safety: Roads and Traffic Authority of New South Wales v Dederer & Anor (2007) 238 ALR 761.
The first defendant relies on Shellharbour City Council v Rigby [2006] NSWCA 308 to emphasize that in an occupier's liability case it is not sufficient to merely identify the existence of a general duty of care. Instead "the essential question is what is the content of the duty of care in a particular case and in this case, what was the content of the duty of care owed by the Council to the plaintiff.": Beazley JA at [32]. Also see Hayne J in Modbury Triangle Shopping Centre Pty Ltd v Anzil & Anor (2000) 205 CLR 254 at [102].
On this basis the first defendant contends that the proper question in this case is: "Did the first defendant have a duty to take reasonable steps to avoid injury to persons walking through a car park exit controlled by an automatically lowering boom gate?" It asserts the answer is "no" because the boom gate (1) was not a "hidden danger", "trap" or hazard; (2) it operated automatically in its downward path and the first defendant was unable to alter its path; (3) there was ample pedestrian access without any need to take a short cut; (4) and the duty was only to take reasonable care for persons exercising reasonable care for their own safety, which the plaintiff did not because he walked behind a vehicle leaving the car park.
It is necessary to determine the scope or content of the duty of care owed by the first defendant to the plaintiff, whether it is in respect of the duty of care imposed by s 5 of the OLA, or at common law. The duty of care is that care which the first defendant admits it owed to the plaintiff in the circumstances of this case – a duty to take reasonable care duty to avoid foreseeable risks of injury to the plaintiff as an entrant upon the premises.
With respect I do not agree with the first defendant's contentions that for the reasons relied upon and set out above it did not owe the plaintiff a duty of care. The reasons for not being so persuaded can be discerned from my findings of fact. In summary and in response in the same order as set out above: (1) in my view there was an unpredictability in the circumstances of this case as to when the boom gate might lower, even though the plaintiff appreciated that this would occur automatically, because it would lower at different times depending on the length of the exiting vehicle as a result of the physical layout, and because there was evidence that the boom gate could be manually locked at the box in the upright position (which I infer occurred from time to time and must have been the case for a period of time until the boom gate was fixed in May 2003 because the cashier could not raise it automatically as a result of operating the till); (2) in circumstances where the boom gate lowered automatically and the first defendant knew that pedestrians walked through the exit gate frequently and in peak periods constantly it should have taken steps to control the flow of pedestrians and configured the booth in a way that the cashier could ensure the boom gate cycle could be completed safely once started ‑ all of this was completely within the control of the first defendant; (3) the failure of the first defendant to repair the length of the boom gate meant the distance between the bollard and the end of the boom gate was so wide that it was an invitation to pedestrians to walk through, especially as the route to car park No 3 on leaving the Casino is to the right and this is where the entry to the car park was because of the yellow railing on the footpath adjacent to that car park; (4) even though the plaintiff was required to take reasonable care for his own safety, in the circumstances of this case, this is not a case where the plaintiff was so reckless in his conduct that it can be said the accident was attributable, wholly to his negligence, as opposed to any negligence on the part of the first defendant.
In my opinion the first defendant owed a duty of care to the plaintiff to take reasonable care to avoid foreseeable risks of injury to pedestrians walking to car park No 3 from the Casino.
The plaintiff pleads that the second defendant had a duty of care to prevent any foreseeable risk of injury or harm arising out of the operation of the boom gate because at the relevant time it was being operated by or under the control of an employee of the second defendant.
The second defendant contends that, in the circumstances of this case, it did not owe the plaintiff a duty of care. It says there is no duty because it was not the owner or occupier of the car park (on the basis that its role was confined to providing cashier services to the first defendant), and because the first defendant provided all the plant and equipment at the car park including the boom gate. With respect I do not agree.
In my opinion, in the circumstances of this case, the operation of the boom gate by the second defendant, gave rise to a duty of care to the plaintiff, notwithstanding the contractual relationship with the first defendant. This is because the second defendant's employees or contractors used the manual open switch to raise the boom gate in circumstances where they knew that pedestrians would frequently be in the vicinity of the boom gate and because it knew the operator had no effective means of controlling the downward path of the boom gate. This occurred automatically on the departure of the exiting vehicle, the timing of which the cashier had no control.
In these circumstances it was necessary for the second defendant's employees to look at the boom gate before opening it even though the physical location and layout of the booth was not designed to facilitate this. In my opinion, this duty existed from the time the car park was built, at which time the boom gate was wired to automatically open on the validation of the transaction by the till. That position changed in May 2003 and as a consequence it was necessary for the cashier to open the boom gate using the manual switch on every occasion a vehicle exited the car park. But in my view the duty of care in this regard did not change.
However the second defendant's duty to the plaintiff and the content of that duty is limited, in my view, to the act and time of raising the boom gate (in accordance with the contractual obligation to provide cashiering services to the first defendant). The first defendant was solely responsible for the boom gate machinery and the automatic lowering of the boom gate. Because the second defendant's cashier could not know with certainty when the exiting car would move off the detection system, he or she could not control the timing of the lowering of the boom gate. In practical terms two people were required ‑ the first to serve the customers and operate the manual switch to open the boom gate, and the second to wait and warn pedestrians of the danger posed by the boom gate lowering when it did. There is not only a temporal disconnect in the two actions but also a physical barrier due to the layout of the booth and boom gate area.
For these reasons both defendants owed the plaintiff a duty of care but the content or scope of the duty is different in each case. In reaching this view I accept there are a variety of factors that are, or may be, relevant to whether it is reasonable to impose a duty of care. The practical content or extent of the duty is governed by the facts and circumstances of each case: Modbury Triangle Shopping Centre Pty Ltd v Anzil (supra) at [103] and [105]. It is sometimes necessary to formulate the extent of the duty of care by beginning with the damage suffered and working backwards, but in every case great care must be taken to formulate the duty of care with precision. In formulating the duty of care in this case I have had regard to the particular facts and circumstances of the operation of the boom gate, the lay out of the footpath and exit area of the car park and the other matters to which I have referred. It follows that the reasoning which informs the scope of the duty of care in this case would not apply to a fully automated car park entry or exit with a boom gate, which will necessarily be differently configured and signed.
In reaching my view I have also taken into account the proposition that it is unlikely that a duty of care will exist where the relevant harm results from something beyond the defendants' control: Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540.
In my opinion both defendants owed a duty of care to the defendant, and in the case of the first defendant a statutory duty under the OLA. The real issue in this case is whether there was a breach of the relevant duty of care by the first defendant or the second defendant.

Did the first or second defendant breach its duty of care to the plaintiff?

The essential question in this case is whether there was a breach of the duty of care owed by either defendant to the plaintiff. The plaintiff pleaded six particulars of the first defendant's alleged failure to take reasonable care for his safety (set out above). The particulars were the subject of comment during the trial as to their proper construction and meaning. The particulars of negligence alleged against the second defendant are the same except for the allegation that it did not adequately maintain or repair the boom gate so that it did not lower (it was common ground that the first defendant owned and maintained the equipment).
The plaintiff and the first defendant both rely upon the general principle of breach of duty expressed by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 ‑ 48.
"In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position."
In my view, as is evident from my findings of fact, the first defendant breached its duty of care to the plaintiff by exposing the plaintiff to a risk of injury which was real and not fanciful and which it knew or ought to have known in the circumstances. The first defendant failed to warn the plaintiff not to walk in the area of the boom gate and allowed or permitted the boom gate to lower as the plaintiff was walking under it by reason of the automatic operation of the machinery. The first defendant failed to repair or restore the length of the boom gate when it was damaged. This left a wide opening which was an invitation to pedestrians to use the roadway in between the car parks. The situation was aggravated because of the uncertainty and unpredictability about when the boom gate would lower because the magnetic loop detection system meant that vehicles of different length would "hold up" the boom gate for different periods of time depending on whether or not the vehicle had completely passed over the loop.
Having regard to the findings of fact in relation to the requirement that the cashier physically operate the boom gate on each occasion that a vehicle exited the car park, and that it was not possible to see the area of danger from the booth, the whole circumstance in my opinion constituted an obvious risk which was known to the first defendant. The plaintiff's reaction when he was struck was that he thought the cashier "had deliberately lowered" the boom gate. Although at the time this sounded implausible it now has a ring of possibility because the evidence in the end was that the cashier did manually operate the boom gate every time to raise it ‑ so why not to lower it. The speed at which the boom gate lowered was not sufficiently slow to enable the cashier to override its downward movement even if the manual switch had been designed and intended for this safety purpose (it was intended for one purpose, to raise the boom gate).
In my opinion, it is no defence for the first defendant to say it "had no involvement in the process of allowing or permitting the automatic boom gate to lower as the plaintiff was walking under it". The true position is that the first defendant was responsible for the design, construction, operation and maintenance of the car park exit, machinery and procedures. The fact that it allowed the operation of the boom gate to occur as it did in the relevant circumstances, in my opinion, constitutes a breach of the first defendant's duty of care to the plaintiff. In my opinion the risk of harm which the plaintiff suffered was reasonably foreseeable and the steps necessary to alleviate the risk were simple and obvious.
The second defendant contended that it did not breach any duty of care owed to the plaintiff. A common law duty of care can only be a duty of reasonable care and not prevention. The duty is never absolute and hindsight plays no part in the analysis: see Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; and Roads and Traffic Authority of New South Wales v Dederer (supra).
In my view the duty of the second defendant extended to taking reasonable care when raising the boom gate with the manual switch to ensure that no pedestrians were in the vicinity of the boom gate and likely to suffer harm. In such circumstances the duty extended to not operating the boom gate or giving an appropriate warning to the plaintiff. However, the second defendant's cashiers had no practical ability to control the timing of the descent of the boom gate which occurred automatically as soon as the vehicle moved off the magnetic loop detection system. The second defendant was not in a position to monitor or guard the boom gate at the time it lowered as the cashier was required to serve the customer in the next vehicle. Mr Harding's evidence was that the first defendant's officers had responsibility for controlling pedestrian behaviour and conduct, which would include where they walked and the manner of their use of the premises. The evidence is that the second defendant merely provided a person to operate the booth as a cashier and in my view the duty of care owed to pedestrians, including the plaintiff, was in the circumstances of this case limited to matters concerning the raising of the boom gate.
As a matter of causation, the plaintiff's accident occurred on the lowering of the boom gate which was controlled automatically and not, in my opinion, from any relevant temporal viewpoint as a result of anything done by the cashier. Obviously the second defendant's cashier started the cycle but in the circumstances of this case they had no control over the end part of the cycle, that is, when the boom gate lowered. The cashier was not physically located in a place or position where they could warn pedestrians of the risk. In this sense the second defendant did not, in my opinion, cause the plaintiff's accident.
In my opinion the real cause of the plaintiff's accident was the first defendant's breach of its duty of care to pedestrians, including the plaintiff, and not any breach of the duty of care owed by the second defendant to the plaintiff.
The cause of the plaintiff's accident was the automatic downward path of the boom gate which occurred as a result of a system maintained and operated by the first defendant. That system did not require the second defendant's cashiers to monitor or take action to ensure that pedestrians were not at risk of injury at the relevant time. There was no practical opportunity for the second defendant to warn pedestrians or to prevent the lowering of the boom gate at the relevant time. To this extent there was no relevant breach of any duty of care owed by the second defendant to the plaintiff.

Contributory negligence

The defendants both claim that the plaintiff's accident was caused solely by his own negligence. The principles involved when exercising a judicial discretion to apportion liability for contributory negligence were considered by the Court of Appeal in Gorman -v- Scofield [2008] WASCA 78. Buss JA said:
"[20]An assessment of the culpability of a plaintiff and a defendant, for the purposes of apportionment, requires a consideration of the relative importance of the conduct of each party in causing the damage. The whole conduct of each negligent party in relation to the circumstances of the accident must be subjected to comparative examination. See Wynbergen v Hoyts Corporation Pty Ltd (1997) 72 ALJR 65, 68.
[21]A finding on a question of apportionment, as between a defendant who has been found to be negligent and a plaintiff who has been found guilty of contributory negligence, is a finding upon a 'question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds': British Fame (Owners) v MacGregor (Owners) [1943] AC 197, 201. It is well-established that such a finding, if made by a Judge, is not lightly reviewed. See Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492, 494."
The first defendant pleads that the plaintiff's injury was caused solely by his own negligence because of "his own volition and with reckless disregard for his own safety, [he] continued to walk behind a vehicle leaving the car park" despite being warned by the attendant on duty not to do so. I accept that the plaintiff was in the vicinity of a vehicle and behind it because obviously the boom gate was in the upright position as he approached it and it was still in this position because the exiting vehicle had not moved sufficiently off the detection loop system to allow the boom gate to close. I find that the plaintiff was not warned by Mr Cole not to walk behind the vehicle.
Appropriate weight must be given to considerations of personal responsibility when determining whether there has been contributory negligence: Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380 per Ipp JA at [67]. I accept that the plaintiff failed to consciously appreciate that there was an obvious likelihood that the boom gate might descend. For all he knew it might have been locked in the up position in view of the number of vehicles leaving the car park at this peak time. However, by walking on the road pavement in the area of the automatic boom gate, with knowledge which he admitted about how boom gates at car park exits work, he failed to take proper care for his own safety.

In the plaintiff's written submissions filed after completion of the trial he concedes there was a footpath available at the exit of the car park. However, I observe that the use of the footpath was not mandated by appropriate barriers or signage warning of the risk in circumstances where the flow of pedestrian traffic was, to the knowledge of the first defendant, frequently through the vehicle exit gate because it was the direct route for pedestrians going to car park No 3 on the other side of the road (Exhibit 1). This is a relevant consideration because it is necessary to weigh the relative contributions of the plaintiff and the first defendant in response to the risk.
Allowance must be made for inadvertence by pedestrians and certain dangers may not be perceived by them because of the nature of the danger: Brodie v Singleton (supra) at [163]. In my view this is not a case where the plaintiff had the time and opportunity to make a deliberate and considered decision with knowledge of an obvious risk, namely that the boom gate would in fact descend. There was uncertainty about when it would descend and a possibility because it was peak traffic time that the boom gate had been locked in the up position to facilitate clearing the car park with minimum delay.
The first defendant contends that there should be a "significant reduction" in the plaintiff's damages for contributory negligence, consistent with the principles in Pennington v Norris (1956) 96 CLR 10 at 16. The first defendant relies on the fact that the plaintiff was taking a short cut and chose not to utilise the available pedestrian pathway and submits that a reduction in his damages of 50 per cent is appropriate: see Skulandar v Willoughby City Council [2007] NSWCA 116; Carey v Lake Macquarie City Council [2007] NSWCA 4; and also s 5K(1) and (2)(a) and (b) Civil Liability Act 2002 (WA).
Having regard to the scope and content of the first defendant's duty of care, my findings of fact concerning the circumstances of the plaintiff's accident, and weighing the respective culpability of either party, the plaintiff's negligence which was causative of the accident should, in my opinion, be assessed at 30 per cent. It follows that the relevant conduct of the first defendant was, in my view, more culpable than the plaintiff.
For these reasons I find the plaintiff was contributory negligent to the extent of 30 per cent for his loss and damage.

Conclusion

In summary, for the reasons set out above:
(a)in the circumstances of this case the first defendant owed the plaintiff a relevant duty of care;
(b)the first defendant breached that duty of care and as a result the plaintiff was struck by the car park exit boom gate when it suddenly, and without warning, lowered;
(c)the plaintiff's accident was not caused by any relevant breach of the duty of care owed by the second defendant to the plaintiff; and
(d)the plaintiff was 30 per cent contributory negligent for the incident.
Liability for the plaintiff's accident on 10 September 2003 is therefore to be apportioned between the first defendant as to 70 per cent and the plaintiff as to 30 per cent.
In the circumstances there is no need to apportion liability between the first and second defendants for the purposes of the notices of contribution issued against the each other pursuant to the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947.