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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Beydoun v Burswood Nominees Ltd

Details

AGLC: Beydoun v Burswood Nominees Ltd [2009] WADC 64
Case: [2009] WADC 64
Decision Date: 24 APRIL 2009

CaseChat Overview and Summary

In the case of Beydoun v Burswood Nominees Ltd, the plaintiff, Beydoun, sought damages from the defendant, Burswood Nominees Ltd, for injuries sustained when his vehicle collided with a car park exit boom gate. The case was heard in the Supreme Court of Western Australia. Beydoun claimed that the defendant, as the owner and occupier of the car park, owed him a duty of care to ensure the safety of the premises, which was breached when the boom gate malfunctioned, resulting in the plaintiff's injuries.

The primary legal issues before the court involved whether the defendant owed a duty of care to the plaintiff and, if so, whether that duty was breached. Additionally, the court had to determine whether the plaintiff's own contributory negligence in failing to keep a proper lookout contributed to the accident. The court also considered the content and extent of the duty of care owed by the car park operator and whether the risk of the boom gate malfunctioning was foreseeable.

The court found that the defendant owed a duty of care to the plaintiff, as the car park was a place where the plaintiff could reasonably expect to be safe. The court determined that this duty encompassed ensuring the safe operation of the boom gates. The malfunction of the boom gate was deemed a breach of this duty. The court further found that while the plaintiff had some contributory negligence in failing to keep a proper lookout, this did not absolve the defendant of liability. The court apportioned liability between the parties, with the defendant found to be 80% liable and the plaintiff 20% liable.

The court awarded the plaintiff damages of $210,000, reduced by 20% for contributory negligence, resulting in a net award of $168,000. The defendant was ordered to pay this amount to the plaintiff.

Orders