JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: CHAMBERLAIN -v- SCENTRE SHOPPING CENTRE MANAGEMENT (WA) PTY LTD [2023] WADC 145
CORAM: SHEPHERD DCJ
HEARD: 9 DECEMBER 2022
DELIVERED : 30 NOVEMBER 2023
FILE NO/S: CIV 4096 of 2021
BETWEEN: JADE ASHLEIGH CHAMBERLAIN
Plaintiff
AND
SCENTRE SHOPPING CENTRE MANAGEMENT (WA) PTY LTD
Defendant
Catchwords:
Injury sustained at shopping centre - Whether structure covered in black cloth contained a concealed risk - Obvious risk - Duty to warn - Formulation of the risk of harm - Contributory negligence - Occupiers' Liability Act 1985 (WA) - Civil Liability Act 2002 (WA)
Legislation:
Civil Liability Act 2002 (WA)
Occupiers' Liability Act 1985 (WA)
Result:
Defendant breached the duty of care owed to the plaintiff
Contributory negligence not established
Plaintiff's injury caused by defendant's negligence
Judgment for the plaintiff
Representation:
Counsel:
| Plaintiff | : | Mr J R Criddle & Mr T P Heard |
| Defendant | : | Mr A Basile & Mr A A Nolan |
Solicitors:
| Plaintiff | : | Bradford Legal |
| Defendant | : | McCabes |
Case(s) referred to in decision(s):
Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; (2009) 239 CLR 420
Allied Pumps Pty Ltd v Hooker [2020] WASCA 72
Anderson v Joyce [2019] WADC 121
Apostolic Church Australia Ltd v Dixon [2018] WASCA 146
Astley v Austrust Ltd (1999) 197 CLR 1
Blue Op Partner Pty Ltd v De Roma [2023] NSWCA 161
Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512
Carter v Hastings River Greyhound Racing Club [2020] NSWCA 185; (2020) 102 NSWLR 691
CG Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136
CGU Insurance Ltd v Coote (by his Next Friend Stephen Desmond Coote) [2018] WASCA 117
Collins v Clarence Valley Council [2015] NSWCA 263
Cox v Fellows [2013] NSWCA 206
Department of Housing and Works v Smith [No 2] [2010] WASCA 25
Fallas v Mourlas [2006] NSWCA 32; (2006) 65 NSWLR 418
Garzo v Liverpool/Campbelltown Christian School Ltd [2011] NSWSC 292
Jaber v Rockdale City Council [2008] NSWCA 98
J-Corp Pty Ltd v Thompson [2019] WASCA 173
Joslyn v Berryman [2003] HCA 34
Joyce v Anderson [2020] WASCA 48
Kempsey Shire Council v Five Star Medical Centre Pty Ltd [2018] NSWCA 308
Keven Gors by his Plenary Administrator Janet Christine Gors v Tomlinson [2020] WASCA 164
Kiriwellage v Best & Less Pty Ltd [2013] VSCA 355
Liverpool Catholic Club Ltd v Moor [2014] NSWCA 394
Mamo v Surace [2014] NSWCA 58; (2014) 86 NSWLR 275
Marsh v Baxter [2015] WASCA 169; (2015) 49 WAR 1
Meandarra Aerial Spraying Pty Ltd v GEJ & MA Geldard Pty Ltd [2013] 1 Qd R 319
Menz v Wagga Wagga Show Society Inc [2020] NSWCA 65
Nikolich v Webb [2020] WASCA 169
Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1
Peter Steven Benic v State of New South Wales [2010] NSWSC 1039
Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492
Port Macquarie Hastings Council v Mooney [2014] NSWCA 156
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330
Schultz v McCormack [2015] NSWCA 330
Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2022] HCA 11; (2022) 273 CLR 454
Taylor v Fisher [2018] WASCA 126
Town of Port Hedland v Reece William Hodder by Next Friend Elaine Georgina Hodder [No 2] [2012] WASCA 212
SHEPHERD DCJ:
Contents
Part 1
1.1.... Introduction
1.2.... The issues to be determined in this trial
1.3.... Outcome
1.4.... The structure of this decision
Part 2
2.1.... The evidence at trial - overview
2.2.... Ms Chamberlain's evidence
2.3.... Ms Thomson's evidence
2.4.... The CCTV footage
2.5.... Credibility findings
2.5.1 Ms Chamberlain
2.5.2 Ms Thomson
Part 3 - Findings of fact
3.1.... The relevant circumstances
3.2.... The movements of the plaintiff
3.3.... The plaintiff's contact with the structure
3.4.... The route to the food hall
3.5.... The structure under the black cloth
3.5.1 Findings from the CCTV footage
3.5.2 Ms Thomson's evidence - preliminary observations
3.5.3 Ms Thomson's evidence - analysis and findings
3.6.... The plaintiff's knowledge about 'kiosks'
3.7.... The effect of the black cloth
3.7.1 The effect of the black cloth - preliminary observations
3.7.2 The effect of the black cloth - analysis and findings
3.8.... Conclusions - summary
Part 4 - The formulation of the risk of harm
4.1.... The plaintiff's formulation of the risk of harm
4.2.... The defendant's formulation of the risk of harm
4.3.... The legal principles
4.4.... Analysis and conclusions: the formulation of the risk of harm in this case
Part 5 - Duty of care
5.1.... Duty of care
5.2.... The scope of the duty of care
5.3.... Obvious risk
5.3.1 The statutory framework
5.3.2 Analysis and conclusions
5.4.... Would a warning have changed or affected the behaviour of users of the plaintiff?
Part 6 - Did the defendant breach the duty of care owed to the plaintiff?
6.1.... The statutory framework - the CLA, the OLA, or both?
6.2.... The legal principles
6.3.... Analysis - Was the risk of harm foreseeable? CLA s 5B(1)(a)
6.4.... Analysis - Was the risk of harm not insignificant? CLA s 5B(1)(b)
6.5.... Analysis - 'The circumstances' and the 'reasonable person': CLA s 5B(1)(c) and OLA s 5(4)
6.6.... Analysis - What is the response of a 'reasonable person'? CLA s 5B(2)
6.6.1 The precautions of a 'reasonable person': CLA s 5B(2)(c) and OLA s 5(4)(g)
6.7.... Conclusion on breach of duty of care
Part 7 - Contributory negligence
7.1.... The position of the parties
7.2.... The statutory framework: CLA s 5K
7.3.... Analysis and conclusions
Part 8 - Causation
8.1.... The statutory framework
8.2.... Analysis and conclusions
Part 9 - Conclusion and Final Orders
Annexure 1
Photograph 1
Photograph 2
SHEPHERD DCJ:
Part 1
1.1 Introduction
The 21st of May 2020 did not pan out the way Ms Chamberlain thought it would. She had plans to visit some friends, stopping on the way at Westfield Carousel Shopping Centre (Westfield) to get something to eat from the food hall.
She never made it to see her friends; nor did she make it as far as the food hall.
Instead she ended up in the Emergency Department of Fiona Stanley Hospital having sutures for a laceration to the lateral aspect of her left knee.
The injury occurred as Ms Chamberlain made her way towards the food hall walking through the mall of Westfield.
On that particular day there was a structure or kiosk located in the middle of the mall that had been covered in black cloth.[1]
[1] Also referred to at trial as a 'kiosk'. Both terms are used interchangeably in this decision.
CCTV footage from Westfield captured Ms Chamberlain walking towards, and then to the right of, the structure.
Whilst Ms Chamberlain's right leg cleared the structure, her left leg was not so fortunate.
The CCTV footage shows that as she moved towards the right‑hand side of the thoroughfare of the mall, her left leg caught, or came into contact with, the structure that lay beneath the black cloth.
The CCTV footage shows Ms Chamberlain immediately clutching at her left leg, hobbling and ultimately stopping to find that she had a laceration to her left knee that required sutures.[2]
[2] Exhibit 1, photograph of the plaintiff's laceration.
It is clear, and not in dispute in this trial, that Ms Chamberlain's injury[3] was sustained at the point that her left leg came into contact with the structure that lay beneath the black cloth.
[3] Statement of claim dated 21 April 2022, pars 4 and 5 citing left knee flap laceration, anxiety and depression.
What is not clear, and is in dispute in this matter, is the nature, composition and dimensions of the structure that lay beneath the black cloth.
In bringing this action against the defendant, Scentre Shopping Centre Management (WA) Pty Ltd, in negligence Ms Chamberlain argued that the structure contained a sharp edge, the existence of which was concealed by the black cloth.
Ms Chamberlain alleges that the defendant breached the duty of care it owed to her as an entrant to the premises to provide and to maintain safe premises.[4] Specifically, by causing, allowing, permitting or failing to remove the sharp edge which had been covered with black cloth to be present on the premises; that sharp edge constituting an injury hazard.[5]
[4] Statement of claim dated 21 April 2022, par 3(b).
[5] Statement of claim dated 21 April 2022, pars 4, 6.1, 6.2.
Ms Chamberlain argued further that the defendant's breach of the duty of care it owed to her arose from its failure to warn or advise her of the presence of the sharp edge[6] and by failing to place a barrier around, or otherwise to secure, the sharp edge.[7]
[6] Statement of claim dated 21 April 2022, par 6.3.
[7] Statement of claim dated 21 April 2022, par 6.4.
It was not in issue at trial that at all material times the defendant was the occupier and manager of Westfield pursuant to the Occupiers' Liability Act 1985 (WA) (OLA).[8]
[8] Statement of claim dated 21 April 2022, pars 2, 3; Defence, dated 22 April 2022, par 2.
It was not in issue at trial that the defendant owed the plaintiff a duty of care to 'take reasonable precautions to ensure that persons such as the plaintiff were not injured as a consequence of any act or omission on the premises'.[9]
[9] Defence, par 5.1.
The defendant denied that it breached the duty of care it accepts it owed the plaintiff.
The defendant's primary position, put simply, was that the structure covered by the black cloth did not comprise a hazard or a danger to the plaintiff (and other users of the mall) and it did not contain an edge that could be described as 'sharp'[10] (the defendant's primary position).
[10] Defendant's outline of opening submissions dated 25 November 2022, par 18.
The defendant's position was that a reasonable person in the position of the plaintiff would have known that kiosk 'infrastructure' was present underneath the black cloth and that 'that infrastructure was likely to be rigid'.[11]
[11] Defendant's outline of opening submissions dated 25 November 2022, par 18.
The defendant's position was that the presence of the structure itself as covered by the black cloth was readily observable to a reasonable user of the mall.
That is, that the covering of the structure[12] in black cloth did not create a risk of injury,[13] rather, it had the effect of distinguishing the structure from the floor of the mall and its immediate surroundings so as to make the structure readily observable to a reasonable person taking care for their own safety.[14]
[12] 'Structure' or 'Kiosk' are used interchangeably in this decision.
[13] Defendant's written outline of opening submissions dated 25 November 2022, par 18.
[14] Defendant's written outline of opening submissions dated 25 November 2022, par 21.
It was not necessary, argued the defendant, either for the edging of the kiosk to be removed,[15] nor for barriers to be erected around the kiosk.[16] It follows, said the defendant, that the likelihood of a person taking reasonable care for their safety walking into the kiosk was low.[17]
[15] Defendant's written outline of opening submissions dated 25 November 2022, par 23.
[16] Defendant's written outline of opening submissions dated 25 November 2022, pars 22 - 23.
[17] Defendant's written outline of opening submissions dated 25 November 2022, par 20.
In the alternative, the defendant argued that any hazard or danger posed by the structure was an 'obvious risk', such that there was no duty on the defendant to warn the plaintiff or other users of the mall[18] ('the defendant's alternative position').
[18] Defence dated 22 April 2022, par 6. See Part 5 at [5.2] and [5.3].
Ultimately, the defendant argued that at the point in time at which the plaintiff came into contact with the structure, she was holding her mobile phone with both hands and was looking down at it.[19]
[19] Defence dated 22 April 2022, pars 7 - 9; Defendant's written outline of opening submissions dated 25 November 2022 par 15.
Accordingly, the defendant asserted that Ms Chamberlain failed to keep a proper lookout as to where she was walking[20] and was therefore 'the author of her own misfortune'.[21]
[20] Defence dated 22 April 2022, pars 7 - 9; Defendant's outline of opening submissions dated 25 November 2022, par 21.
[21] Defence dated 22 April 2022, pars 8 - 9; Defendant's written outline of opening submissions dated 25 November 2022, par 21. See Part 7 - Contributory negligence.
In the event of a finding that the defendant breached the duty of care it owed to the plaintiff damages were agreed between the parties.
1.2 The issues to be determined in this trial
The following six issues arise for determination:
1.What were the relevant circumstances of the plaintiff coming into contact with the structure?
2.What was the nature of the structure underneath the black cloth? In particular:
(a)Did the structure contain an edge that could properly be described as 'sharp'?
(b)Which aspect of the structure contained a sharp edge?
(c)Was there any relationship between the location of any sharp edge and any thoroughfare of the mall likely to be used (and in fact used) by entrants?
3.What was the effect of the black cloth over the structure?
4.How is the 'risk of harm' to be formulated in this case?
5.Was the structure or any part of the structure an 'obvious' hazard, risk or danger to users of the mall?
6.Did the plaintiff's actions cause or contribute to her injury?
1.3 Outcome
For the reasons which follow I find that the defendant breached the duty of care it owed to the plaintiff and I find that the plaintiff's injuries were caused by the defendant's negligence.
Contributory negligence is not established.
I therefore enter judgment for the plaintiff.
1.4 The structure of this decision
I structure this decision by setting out in Part 2 the evidence led at trial.
Part 3 sets out my findings of fact arising from the evidence. This includes the necessary determination of fact as to the effect of the black cloth over the structure: Did it reveal, or conceal the risk of harm?
Part 4 examines the question of how the risk of harm ought properly to be formulated.
Part 5 examines the question of 'obvious risk'.
Part 6 examines whether the defendant breached the duty of care it owed the plaintiff.
Part 7 examines whether the plaintiff was contributorily negligent.
Part 8 examines the issue of causation.
Part 9 deals with final orders.
Part 2
2.1 The evidence at trial - overview
The evidence at trial comprised four components:
1.the evidence of the plaintiff, Ms Chamberlain;
2.the evidence of Ms Chamberlain's mother, Kerri Thomson;
3.a photograph of Ms Chamberlain's injury;[22] and
4.CCTV footage[23] and still shots taken from the footage.[24]
[22] Exhibit 1.
[23] Exhibit 4.
[24] Exhibits 2 and 3. I will refer to additional still shots from various time stamps taken from the CCTV footage in my analysis of the footage.
Much of Ms Chamberlain's evidence about her objective movements in the mall was corroborated by the CCTV footage, however, the footage did not capture everything. It did not capture the dimensions, construction, height nor location of the structure that was cloaked in the black cloth.
There were no photographs tendered at trial to show the structure beneath the black cloth. Ms Chamberlain never saw what lay underneath the black cloth; her mother, Kerri Thomson, however, did.
Ms Thomson's evidence about what she saw underneath the black cloth is, with one exception,[25] therefore the only evidence led at trial about the composition, heights, and dimensions of part of the structure covered by the black cloth.
[25] As to which see [3.3] and Photographs 1 and 2 at Annexure 1.
Ms Thomson's evidence, and my acceptance of her evidence, is, to a large extent, determinative of the second issue raised in this trial.
The defendant, as was its right, did not call any witnesses at trial.
2.2 Ms Chamberlain's evidence
Ms Chamberlain gave evidence that on 21 May 2020 she stopped at Westfield to get something to eat from the food hall prior to visiting her friends.
She parked about a five‑minute walk from the food hall.
She was wearing leggings which did not have any pockets.[26]
[26] ts 6 - ts 7.
As she walked towards the food hall she had her phone in her right hand. Whilst her phone was turned on, the screen was black and in its default mode;[27] it was therefore not in use.
[27] ts 7.
On top of her phone, Ms Chamberlain carried a small credit card‑sized black wallet. In her left hand she had her keys.
As she walked towards the food hall, Ms Chamberlain said that there were a couple of people around. On her evidence, it was relatively busy.[28]
[28] ts 8.
As she moved towards the food hall, there was a female wearing a maroon jumper (the female shopper) walking on her right‑hand side in the same direction.[29]
[29] ts 8.
Ms Chamberlain described her pace as 'walking with purpose', whilst the female shopper was walking a little slower than her.[30]
[30] ts 9.
Ms Chamberlain said that she and the female shopper approached a pop‑up digital advertising sign.
The female shopper went to the right of the digital pop‑up sign, Ms Chamberlain went to her left, taking her between the sign and some large pot plants.[31]
[31] ts 8.
Having moved to her left, Ms Chamberlain looked up and saw a large black cloth draped over 'something'. She appreciated that there was 'some kind of unknown structure underneath the black cloth'.[32]
[32] ts 22.
Whilst Ms Chamberlain recognised broadly that the structure covered in black cloth was something she needed to walk around, she was unable to say that there was something 'rigid' underneath it because she could not see it.[33]
[33] ts 22.
Having passed between the digital pop‑up sign and the pot plants, Ms Chamberlain said that she was aware that the female shopper to her right was very close to her. As such, Ms Chamberlain said that she did not immediately move to her right because she felt that the female shopper was 'kind of preventing me from fully moving into the foot traffic further to the right'.[34]
[34] ts 27; Exhibit 2.
Ms Chamberlain said that there was about a metre to her right but because of the awkwardness of the flow of the foot traffic, she felt that it was difficult for her to get back into the main walkway at that time.[35]
[35] ts 9; ts 28.
Ultimately in recognising that the structure was something she needed to walk around, Ms Chamberlain veered to her right back towards the walkway, to avoid it.[36]
[36] ts 8; ts 25; ts 33.
In cross‑examination, Ms Chamberlain agreed that the only other person in the part of the mall as she approached the structure under the black cloth within a metre or so of her was the female shopper who went to the right of the digital pop‑up sign.[37]
[37] ts 28; See [34] in respect of this aspect of the cross‑examination of the plaintiff.
Ms Chamberlain agreed that there was no one to the left of her, and that any other shoppers or users of the mall were at that point in time some distance from her.[38]
[38] ts 18.
Ms Chamberlain disagreed with the proposition that there was 'plenty of room' for her to move to the right after passing the digital pop‑up sign before reaching the area covered in the black cloth.[39]
[39] ts 28.
Whilst there was sufficient space, Ms Chamberlain conceded in her evidence, for her to have diverted to her left having walked between the three pot plants and the digital pop‑up sign, she chose instead to move to her right. She explained that that was consistent with the flow of foot traffic at the time.[40]
[40] ts 26.
She said that if she were to move to the left, there would have been people coming towards her, which she felt would not have really made sense.[41] Ms Chamberlain said that 'it felt more natural to proceed forwards' and going to the left would mean going further out of her way.[42]
[41] ts 26.
[42] ts 26.
Ms Chamberlain denied that she had been looking at what was in her hands[43] only to then look up and see a large black cloth.[44] She maintained that she was looking ahead of her.[45]
[43] ts 31.
[44] ts 30.
[45] ts 21, ts 29, ts 31.
In walking to her right in order to avoid the structure covered in black cloth, Ms Chamberlain managed to avoid it with her right leg, however, her left leg 'brushed' past it and 'there was an impact'.[46]
[46] ts 9.
Ms Chamberlain gave evidence that she thought she had enough room to make her way past the structure,[47] but conceded that she misjudged where she was walking.[48]
[47] ts 33.
[48] ts 32.
She said that she was looking ahead of her and said:[49]
… I would agree that I misjudged the distance and probably needed a little bit more room and that's the reason that my left leg brushed the cloth.
[49] ts 29.
She conceded that she misjudged the number of steps that it would have required her to avoid the structure.[50]
[50] ts 32.
She denied that her misjudgment was the only cause of her coming into contact with the structure. That was part of the reason, but not the only cause.[51] She said:[52]
I think that I misjudged just how far out it came. I - and I thought I had enough room to make my way past it. So I made a judgement but, yeah, it was a misjudgment about how - just how far out the kiosk actually came.
[51] ts 32.
[52] ts 33.
Ms Chamberlain said that the placement of 'it all' and the way she was walking is what also caused her to walk into the structure.[53]
[53] ts 31.
Ms Chamberlain said that she took a few steps forward and her knee felt like there was pressure and warmth. She bent down, pulled up her leggings and saw that there was a large cut to her leg.
She described it as looking like there was a wedge that had been taken out of the side of her leg. She could see what looked like yellow fat cells and blood.
She called out for help.
Ms Chamberlain was provided with privacy screens and a seat. She said that some ladies she thought worked at the centre wrapped her leg in a bandage.
After sustaining her injury, Ms Chamberlain did not go back and look at what was under the black cloth.[54]
[54] ts 34.
Ms Chamberlain called her mother who worked only minutes from Westfield, who was able to come and help her. When her mother arrived, her mother asked a question, moved away from where Ms Chamberlain was, and came back to talk to the staff.[55]
[55] ts 11.
Ms Chamberlain's mother then took Ms Chamberlain to hospital where Ms Chamberlain received an injection into the wound and had her wound stitched. She was in the hospital for multiple hours before she was discharged.[56]
[56] ts 11 - ts 12.
Ms Chamberlain gave evidence that it was scary for her to look down and see her leg cut open. She had never had stitches before this incident and she explained that she had to be given medication at the hospital to help her with her anxiety about having stitches.[57]
[57] ts 14.
Ms Chamberlain also gave evidence that she now has an ugly scar on her leg, which she described as upsetting.[58]
[58] ts 14; Exhibit 2.
Ms Chamberlain gave evidence that she had been visiting Westfield since she was a young child at various times of the day.[59]
[59] ts 23.
Whilst she had seen open kiosks in the mall at Westfield, she could not recall seeing 'closed' kiosks.[60] Her evidence was that this was the first occasion that she had come across a stall or a kiosk in the middle of the mall that was covered with black cloth.[61]
2.3 Ms Thomson's evidence
[60] ts 24.
[61] ts 24.
Ms Chamberlain's mother, Kerri Thomson, a registered clinical nurse, gave evidence that on Thursday, 21 May 2020 she received a phone call from her daughter, Ms Chamberlain, asking for assistance.
Ms Thomson travelled to Westfield whereupon she saw her daughter seated with a privacy screen around her and a bandage on her leg.
Ms Thomson had a conversation with Ms Chamberlain about how the accident had occurred. She also spoke with two people wearing uniforms from Westfield who appeared to her to be from Westfield management. The management staff pointed in the direction of the structure covered in the black sheet.
Ms Thomson gave evidence that she went over to the black sheet, lifted it up and saw a 'stepped‑type carousel'.[62] In describing what she saw under the black cloth Ms Thomson said:[63]
I lifted up the black sheet and then I was looking at the bottom step, which had come out further from the centre of the actual carousel. There was - where the - where the intersection of the two corners were, were shards of glass that were butted up … to each other to make a corner. They did not have any capping on them or any - anything that covered up the sharpness of it. I touched the actual glass and I could feel how sharp it was.
[62] ts 38.
[63] ts 38 - ts 39.
Ms Thomson described the angle of the two pieces of glass coming together like the corner of a desk. She put her hand on the glass and felt it to be 'sharp'.[64]
[64] ts 42.
Ms Thomson said specifically that the carousel or display unit 'came out' and said:[65]
It was a stepped arrangement so what was eyeline was the top and then it steps out 'like that' with the black cloth over the top.
[65] ts 45.
At that point, Ms Thomson made movements with her hands horizontally and vertically in an outward direction from her body. She confirmed that her hand movements were describing steps.[66] Ms Thomson explained that when she looked under the cloth at the stall:[67]
it obviously was stepped like that to show things, like, you know, when they're displaying things. I don't know what sort of display it was but it- it looked to me like there was different levels so that things could go in so people could view them.
[66] ts 45.
[67] ts 45.
Ms Thomson conveyed the fact of the sharpness of the carousel to shopping centre staff.[68] Ms Thomson then took her daughter to hospital.
[68] ts 39.
Ms Thomson said that she had previously seen a store or a stall covered in black cloth in Westfield prior to this occasion but never in that position. She said further that it was usually when people are not using it and they are shut down,[69] such as when she has been to watch a movie.
[69] ts 44.
She could not say that she had ever seen the type of arrangement where black cloth has been put over a carousel or kiosk at other shopping centres, but she agreed this was not the first time she had ever seen that. She said they are not covered up during the day when people are there.[70]
[70] ts 44.
Ms Thomson agreed to the proposition that she did not have any difficulty seeing the black cloth against the white floor with the mall being relatively well lit.[71]
2.4 The CCTV footage
[71] ts 44
As well as capturing Ms Chamberlain's movements in the immediate lead up to, and point of contact with, the structure,[72] the CCTV footage provides evidence about the relevant circumstances of the mall at the time of Ms Chamberlain's visit.
[72] The 'relevant circumstances', see [3.1 - Findings of fact].
The 'relevant circumstances' include:
1.the physical layout of the mall on that morning;
2.the walkways and paths taken by shoppers using the mall on that particular morning;
3.the general conduct of other users of the mall;
4.the lighting in the mall at the time;
5.the digital advertising pop‑up sign; and
6.the contrast between the structure covered in the black cloth and the rest of the mall (and other such facts).
An understanding of the relevant circumstances is necessary in order to understand the layout of the mall generally and the context in which Ms Chamberlain's injury arose.
To that end I have reviewed the entirety of the CCTV footage, particularly the lead up to, and Ms Chamberlain's contact with, the structure multiple times.[73]
[73] Exhibit 4 at trial.
In making findings of fact about the relevant circumstances at [3.1], I reference various time stamps from the CCTV footage. Where I consider certain time stamps within the footage to be significant, I have referred to still shots at those time stamps in my analysis.[74]
2.5 Credibility findings
2.5.1 Ms Chamberlain
[74] Some of those still shots were not tendered separately at trial but have been taken from the footage, Exhibit 4. Those still shots are photographs 1 and 2 at Annexure 1.
There are two reasons why I accept the evidence given by Ms Chamberlain at trial.
Firstly, the CCTV footage provided me with objective evidence against which to assess Ms Chamberlain's evidence about where she was looking and the surroundings immediately prior to, and at the point of impact, with the structure.
Secondly, Ms Chamberlain readily made concessions in her evidence that she had misjudged aspects about the structure covered in the black cloth and the steps she was required to take to avoid coming into contact with it.
Those concessions were not those of a witness attempting to avoid any admissions of her own misjudgment.
I therefore find that Ms Chamberlain's evidence as a whole was honest, accurate and reliable.
I make some observations at [3.4] about the cross‑examination of Ms Chamberlain about why she did not take an alternative path towards the structure covered in the black cloth.
2.5.2 Ms Thomson
My assessment of Ms Thomson's evidence was that it was honest, accurate and reliable. She gave a no‑nonsense, matter of fact description of what she saw when she looked under the black cloth. I find that she neither attempted to exaggerate her evidence nor did she attempt to give evidence in a manner designed to assist her daughter.
I accept the evidence that Ms Thomson gave in its entirety: see Findings of fact [3.5.3].
Part 3 - Findings of fact
3.1 The relevant circumstances
I make the following findings of fact about the relevant circumstances from the CCTV footage.
The area in which the structure covered in black cloth was located was a common area which I refer to as 'the mall' inside Westfield between Jacquie E on the right‑hand side and Sportsgirl and Lorna Jane on the left‑hand side.
The CCTV footage is taken from the camera at Westfield as it faces towards the food hall.[75] Closest to the camera and at the bottom of the screen is an open kiosk in the middle of the main thoroughfare of the mall. It presents as being generally regular in shape (width, height and dimensions), rectangular, and it appears to be made of glass or clear hard plastic (the open kiosk).
[75]Any references to the angle of footage are taken from the CCTV camera facing towards the food hall.
The floor of the mall is white and is well illuminated by the lighting.
The footage shows that shoppers were walking in both directions towards and away from the camera and on both sides of the open kiosk,[76] that is, there was no fixed pathway either on the left or the right‑hand thoroughfares.
[76] See for example, 12:42:53 with shoppers walking in both directions on either sides of the kiosk.
A few metres from the open kiosk moving away from the position of the camera towards the food hall (with Jacquie E to the right‑hand side) and in the middle of the walkway are three pot plants.
Approximately 1.5 m - 2 m to the right of the pot plants is a digital pop‑up sign which protrudes into the right side of the thoroughfare at that point. The left‑hand side of the digital pop‑up sign is roughly in vertical[77] alignment with the right outer aspect of the structure covered in the black cloth.
[77] But not horizontal alignment.
The structure covered in the black cloth is located in the middle of the mall between the left and right thoroughfares.[78] The black structure was located a matter of only metres from the location of the digital pop‑up sign and the pot plants.[79]
[78] Exhibit 4, still shot 1; Appendix 1.
[79] Estimation only from the footage.
Shoppers walking on the right‑hand side towards the food hall[80] approaching the digital pop‑up sign were forced by reason of its location to move either to their right, taking them to the right‑hand side of the mall, or to their left. In moving to their left around the sign there is a gap of approximately 1.5 m - 2 m[81] between the sign and the three pot plants.
[80] Moving away from the camera towards the food hall.
[81] All measurements are approximate only.
Similarly, given that pedestrians were walking in both directions on both sides of the thoroughfare, those pedestrians walking from the direction of the food hall[82] were also forced to walk either to their left around the digital pop‑up sign or to their right, bringing them between the sign and the pot plants.
[82] Furthest away from the camera towards the open kiosk at the bottom of the camera frame.
A viewing of the entirety of the CCTV footage shows many examples of users of the mall walking in both directions to and from the general location of the food hall. The footage shows many people walking in different directions pass around, and between, the digital pop‑up sign and the pot plants.
The footage viewed in its entirety shows not only individual pedestrians walking in both directions on both sides of the thoroughfares, but also groups of pedestrians with or without shopping trolleys or prams. It shows on one occasion a stock trolley and on another a cleaner wheeling cleaning equipment.
The digital pop‑up sign carries a Westfield logo and the digital display on the sign changes regularly throughout the period of the footage comprising the advertising of different products and other information.[83]
[83] Some examples of the varying displays shown on the advertising digital pop‑up screen included: a JD Sports ad: a 'click and collect' sign; a 'Your wellbeing is our priority' message; 'Protect each other remain 1.5 metres apart'; an image of a girl with blue hair; a Westfield gift card display; and 'your fashion favourites are back'.
There were no warning signs or barriers at any point close to the structure covered in the black cloth, or at all.
3.2 The movements of the plaintiff
I make the following findings of fact about the movements of the plaintiff from the CCTV footage.
At timestamp 12:44:58, the plaintiff appears at the bottom right‑hand corner of the screen wearing black leggings with a blue vest and a long‑sleeved grey shirt.[84]
[84] ts 20.
The plaintiff at that time stamp is approximately a metre behind, and to the left of the female shopper. Both are walking away from the camera towards the food hall.
At timestamp 12:44:59, as the plaintiff approaches the end of the open mobile kiosk, she walks to her left; the female shopper remains walking on the right‑hand side approaching the digital pop‑up sign.
The plaintiff is walking briskly, such that she has made ground on the female shopper now to her right.
At timestamp 12:45:01 the plaintiff walks to the left of the digital pop‑up sign in between the pot plants. At this juncture she is in a horizontal line with the female shopper to the right of the digital pop‑up sign.
The plaintiff is carrying her phone, wallet and keys in front of her body.
The plaintiff took five steps from passing between the pot plants and the digital pop‑up sign and reaching the structure underneath the black cloth, striking her left leg on her sixth step.
At timestamp 12:45:02 the plaintiff moves towards the main thoroughfare to her right.[85] As the plaintiff moved to her right at which point there was a gap between her and where the female shopper was then walking.
[85] ts 27 - ts 28.
The plaintiff is seen to be looking forward at the time she moved to her right to pass the outer area of the structure covered by the black cloth.
At timestamp 12:45:04, the plaintiff is seen to strike or catch her left leg against something that lay underneath the front right‑hand aspect of the structure covered in the black cloth at approximately knee level.
The plaintiff appears to stumble and to clutch her left knee area. She then appears to briefly look back towards that aspect of the structure that she struck.[86] The plaintiff then hobbles to the rear of the structure clutching her left leg. A female shopper stops to talk to her.[87]
3.3 The plaintiff's contact with the structure
[86] 12:45:06 into the footage.
[87] Exhibit 3.
I have extracted two still shots from timestamp 12:45:04:322 of the CCTV footage.[88] Whilst the time stamp on the footage remains the same, the still shots show the moment immediately prior to the plaintiff connecting with the structure[89] and the moment immediately after contact is made.[90]
[88] See photographs 1 and 2, Annexure 1 from pre and post the plaintiff's contact with the structure.
[89] Photograph 1, Annexure 1.
[90] Photograph 2, Annexure 1.
A careful review of the footage shows that the plaintiff's contact with the structure with her left leg altered the fall or the drape of the black cloth. The movement of the black cloth upon impact from the plaintiff's left leg reveals more of the shape of the structure underneath the cloth on the outer right‑hand side at the approximate height of Ms Chamberlain's knee level.
That change in the fall of the black cloth reveals what I would describe as a defined edge or corner where the front and the right‑hand side of the structure underneath the cloth meet. That is, to the outer right‑hand side of the structure as the plaintiff was walking towards the food hall.[91]
[91] See photograph 2, Annexure 1 - CCTV time stamp 12:45:04:322.
A careful viewing of the footage shows that immediately prior to the plaintiff moving around the structure, the existence, height and placement of the edge was not readily visible.
3.4 The route to the food hall
In addition to the findings of fact made at [3.1] - [3.3], it is necessary to make some observations about the cross‑examination of Ms Chamberlain about why she did not take an alternative path towards the structure covered in the black cloth.
I accept that Ms Chamberlain took the path she did by reason of a combination of the existence of the digital pop‑up sign jutting into the right‑hand thoroughfare of the mall, together with the movement of the female shopper at that point in time to the plaintiff's right.
The plaintiff was not the only user of the mall seen on the CCTV footage who walked between the digital pop‑up sign and the three pot plants.
That path was a path that was open to the plaintiff to take. There was no indication to her, or to other users of the mall, that they ought not to take that path.
The decision the plaintiff made to go to the left of the digital pop‑up sign between the pot plants and to move forward from that position was a direct result of the way in which the mall was configured.
The route the plaintiff took in walking to the left of the digital pop‑up sign took her towards the centre of the mall, walking towards the structure covered in black cloth.
The structure covered in black cloth was readily visible to users of the mall, including to the plaintiff, as an area around which users of the mall needed to walk. Further, the plaintiff knew generally that there was something underneath the black cloth and it was an area around which she needed to walk.
The questions posed in cross‑examination about why Ms Chamberlain did not take an alternative route were effectively asking Ms Chamberlain to explain her movements on the day with the benefit of hindsight having sustained her laceration having come into contract with the structure.
In that regard, the questions in fact assumed that Ms Chamberlain either was aware that the structure posed a hazard or a risk, or that she ought reasonably to have been aware that the structure posed a hazard or a risk.
To that extent those questions and her evidence about why in effectively a moment in time she walked in a certain direction and not another, or that she did not pause and wait for shoppers to pass her, assumes that she knew or ought to have known that the structure concealed by the black cloth contained a risk or hazard to her.
Those questions assume that she had sufficient knowledge of the risk of harm (as to which see Part 4) such that a reasonable person in her position exercising reasonable care for her own safety would have taken those alternative actions.
The time it took the plaintiff to reach the black‑cloaked structure from her position in between the pot‑plants and the advertising sign was a matter of seconds only.
An objective viewing of the CCTV footage shows that the closest route for the plaintiff to have taken from her position approaching the structure covered in black cloth was to take the right‑hand thoroughfare.
There was no indication to the plaintiff that she ought not take the route to the right to pass the structure. There was nothing preventing users of the mall from taking the path the plaintiff did.
The plaintiff's decision when confronted by having to walk around the structure covered in black cloth was entirely reasonable given the layout of the shopping centre at that point.
The setup and configuration of the mall was a matter entirely within the defendant's control and knowledge.
As the plaintiff approached the structure covered in black cloth she was looking ahead of her towards the food hall. The plaintiff was not using her phone and was not looking down at her phone in her hands at the time she came to pass the structure.
3.5 The structure under the black cloth
3.5.1 Findings from the CCTV footage
An objective viewing of the structure cloaked in the black cloth from the CCTV footage shows, broadly, that it was a roughly rectangular, but irregular in height and shape towards the middle and at the top of the structure.
The rear of the structure, furthest away from the camera, appeared to be more uniform in shape, namely rectangular. However, the shape of the structure from its front, moving backwards, could only properly be described as irregular.
The structure viewed from a three‑dimensional perspective can best be described as containing the appearance of four square‑based pyramids arranged next to each other so that when each outside edge is connected to the adjacent pyramid a larger pyramidal‑type structure results with a trough or bowl left in the centre with four prominent peaks visible at the top.
Consistent with logic, the fall of the black cloth was anchored by the tallest parts of the structure. Whilst those points, or at least some of those points, are visible, the tallest aspects of the structure did not uniformly correspond with the outer aspects of the structure.
However, by reason of the lack in uniformity of the structure, and by reason of the drape of the cloth falling from the four (or so) tallest points located in the structure's middle, the precise location of the outer aspects of the structure were concealed.
Specifically, and importantly in this case, the fall of the black cloth towards the front, right outer aspect of the structure was such that the precise dimensions in both height and width of that aspect of the structure were not readily visible.
Further, and of significance in this case, the front right outer aspect of the structure was located at a point where users of the mall were likely to, and did in fact, walk.
I find that the precise dimensions and the composition of the structure were not visible to a user of the mall including to the plaintiff, as they were concealed by the black cloth.
3.5.2 Ms Thomson's evidence - preliminary observations
Before turning to my findings of fact from Ms Thomson's evidence, it is necessary to make some observations about the defendant's arguments and objections taken to her evidence.
The defendant submitted that the court should not accept Ms Thomson's evidence that underneath the black cloth she saw two pieces of glass that abutted each other to form a point that was 'sharp'.
The defendant did not concede that the edge was 'sharp'. The defendant urged the court to make a finding that Ms Thomson's opinion that the edge was sharp was her subjective opinion only and that it did not follow that any edge was objectively 'sharp'.
The defendant did not successfully challenge nor shake Ms Thomson's evidence about the two pieces of glass abutting to form a corner that she felt and saw and described as being 'sharp'.
Either a corner is sharp, or it is not.
Whether a corner is, or is not, sharp is a matter within the common experience of mankind. It is not a matter that requires expert evidence.
Accepting, as I do,[92] the evidence of Ms Thomson in its entirety, that part of the structure that Ms Thomson observed under the black cloth was made of glass. It was not a case of a rounded wooden edge or some other form or edge:[93] it was a glass sharp edge. Given those findings I do not need to address any hypothetical question about a sharp glass edge posing no greater hazard than a corner of a desk made of wood.[94]
3.5.3 Ms Thomson's evidence - analysis and findings
[92] See [3.5.3].
[93] The defendant's submissions at trial, see for example ts 58, ts 59, ts 61.
[94] The defendant's submissions at trial.
Ms Thomson was not challenged in cross‑examination as to where she lifted the black cloth.
I am satisfied on the balance of probabilities that the only reasonable inference open on all of the evidence is that Ms Thomson lifted the black cloth at the front, right outer aspect of the structure.[95] I draw that inference from a combination of all of the following evidence:
1.Ms Chamberlain's evidence about where her leg came into contact with the front, right outer aspect of the structure;
2.the CCTV footage which captures the point of impact;
3.my observations of the alteration in the drape of the cloth immediately following Ms Chamberlain making contact;
4.the CCTV footage immediately after the point of impact showing Ms Chamberlain looking back towards that point of the structure where her leg came into contact;
5.Ms Thomson attending Westfield and finding her daughter with a laceration to the left knee;
6.Ms Thomson asking Ms Chamberlain what had happened and then being directed towards the structure covered by the black cloth; and
7.Ms Thomson's evidence about the 'stepped‑out' display unit at different heights coming down and out from the central unit.
[95] Viewed from the same perspective as the CCTV footage namely with the camera at the bottom of the footage looking towards the food hall.
Further, I make the following findings of fact:
1.that underneath the black cloth was a 'stepped‑type carousel';
2.the steps came down from the centre of the carousel at different heights and at different levels;
3.the bottom step came out further from the centre of the actual carousel;
4.the steps comprised the intersection of two pieces of glass that came together to make a corner;
5.the glass did not have any capping on it; and
6.the corner was sharp.
3.6 The plaintiff's knowledge about 'kiosks'
Whilst the plaintiff had visited Westfield on many prior occasions, I accept her evidence that she had never seen a 'closed' kiosk previously.
There was no evidence led at trial that all 'kiosks' are configured the same way. That is, there was no evidence led at trial that all kiosks are of the same height, dimensions nor composition.
Indeed, drawing a logical inference from the evidence available in this case, a comparison of the open kiosk at the bottom of the CCTV footage frame and what can be discerned about the structure covered in the black cloth, the two structures differ in their size and dimensions.
3.7 The effect of the black cloth
3.7.1 The effect of the black cloth - preliminary observations
It is necessary to make some specific observations and to make specific findings of fact about the effect of the black cloth over the structure.
My findings about the effect of the black cloth are relevant to a number of aspects of this matter including the correct formulation of the risk of harm, the scope of the duty of care owed, the issue of obvious risk and to the issue of contributory negligence.
The parties have each argued that the black cloth is a significant feature of the case but for opposing reasons.
The plaintiff argued that the placement of the black cloth over the structure was to conceal the presence of the sharp edge from users of the mall, including the plaintiff herself.
The plaintiff argued that the concealment by the black cloth of the existence of the sharp edge meant that the knowledge of the presence of that edge remained with the defendant only.[96]
[96] ts 9, ts 71.
It followed, argued the plaintiff, that the risk of harm was significantly greater by reason of the concealment of the sharp edge by the black cloth.[97]
[97] Plaintiff's written outline of opening submissions dated 18 November 2022, par 11.
The defendant, by contrast, denied that covering the kiosk in black cloth created a hazard or a risk of injury. The defendant submitted that the act of covering the kiosk in the black cloth drew the attention of passers‑by to the fact that there was something underneath that was 'obviously quite rigid'.[98]
[98] ts 58.
Further, that the effect of covering the kiosk in black cloth was to distinguish the kiosk from the floor of the mall and its immediate surroundings. It therefore made the kiosk readily observable to a reasonable person taking care for their own safety.[99]
[99] Defendant's written outline of opening submissions dated 25 November 2022, par 21.
The defendant's position was that any risk posed by the cabinet 'whether it be glass or whatever the case may be' was observable to the reasonable person because the defendant had covered it in black cloth.[100]
[100] ts 63.
The defendant's position was that in the event of a finding that there was a sharp edge to the kiosk, the covering of the kiosk in the black cloth made its presence 'more visible to someone walking up than a transparent glass cabinet'.[101]
[101] ts 54.
It was the fact of the black cloth that drew the plaintiff's attention that there was something there that needed to be avoided and that is why the plaintiff took steps to move around it.[102]
3.7.2 The effect of the black cloth - analysis and findings
[102] ts 61.
I accept in general terms the defendant's submissions that the presence of the black cloth over the structure contrasted with the white tiles on the floor of the mall and therefore made the general presence of the structure visible to users of the mall.
However, this analysis in its generality fails to properly consider what it was about the structure that posed the risk of injury to the plaintiff or any other user of the mall.
The defendant's analysis glosses over the fact that the cloth and its drape concealed at a point where users of the mall were likely to, and did in fact move, the existence of the following facts:
1.the item underneath (a carousel or display unit);
2.the dimensions of the unit (that it was stepped out from the middle of the structure towards the outer aspect of the structure);
3.that the steps comprised differing heights, including steps that lay below eye level;
4.the composition of the unit (glass);
5.that the unit contained at least one glass sharp edge; and
6.that the glass sharp edge was at a location proximate to the right‑hand thoroughfare of the mall; (the glass sharp edge).
I am satisfied that the effect of the black cloth was to conceal the precise height, shape and composition of the structure that lay underneath.
I find that the effect of the black cloth was to obscure the precise composition and dimensions of the structure at the front outer right boundary at the juncture of the right thoroughfare of the mall. Specifically it concealed the existence of a sharp glass edge.
3.8 Conclusions - summary
I am satisfied that the plaintiff could see in general terms that there was some form of structure underneath the black cloth which was such as to cause the black cloth to drape over it and around which she needed walk.
I am satisfied that the plaintiff had never seen that precise kiosk or carousel set up and uncovered prior to the day on which she sustained her injury.
It follows that I am satisfied that the plaintiff did not know the precise dimensions nor composition of the kiosk or structure which was covered by the black cloth.
That included the precise width and height, or different heights, of the structure at its outer right-hand aspect as the plaintiff moved towards the food hall.
There was nothing warning the plaintiff or other users of the mall that the black-covered structure contained a concealed glass sharp edge below knee level at the outer right aspect of the structure.
Consistent with my findings above, the plaintiff was looking up and in the direction in which she was walking at the time her left leg came into contact with the structure, specifically, with the concealed sharp edge located below eye level.
The glass sharp edge concealed by the black cloth was a hazard and a danger to users of the mall.
Part 4 - The formulation of the risk of harm
4.1 The plaintiff's formulation of the risk of harm
The plaintiff's pleaded position on the risk of harm was 'causing, allowing or permitting a sharp edge which had been covered with black cloth to be present on the premises; such was an injury hazard'.[103]
[103] Statement of claim dated 21 April 2022, pars 4, 6.1.
In its written outline of opening submissions, the plaintiff identified the risk of harm as the risk of a user of the premises walking in the pedestrian throughfare coming into contact with sharp surfaces capable of causing lacerations,[104] and the risk of laceration by coming into contact with a black cloth covering an undefined kiosk area.[105]
[104] Plaintiff's written outline of opening submissions dated 18 November 2022, pars 10 - 11.
[105] Plaintiff's written outline of opening submissions dated 18 November 2022, par 19.
It was clear from the submissions made on behalf of the plaintiff at trial that the plaintiff's case was that the 'risk of harm' was the risk of a user in the pedestrian thoroughfare coming into contact with a sharp concealed edge and thereby sustaining injury.
I take that to be the articulation of the plaintiff's position in respect of the formulation of the risk of harm.
4.2 The defendant's formulation of the risk of harm
The defendant's formulation of the risk of harm was 'a risk of injury to a shopper's leg caused by coming into contact with the kiosk whilst walking through the mall of the shopping centre'.[106]
[106] Defendant's written outline of opening submissions dated 25 November 2022, par 27.
The defendant submitted that a reasonable person in the position of the plaintiff would have known that 'kiosk infrastructure' was present underneath the black sheet and that that infrastructure was 'likely to be rigid'.[107] In the defendant's closing submissions it was argued that it was plain to the plaintiff that there was something rigid underneath the black cloth, that was readily observable to a reasonable person in the position of the plaintiff at the time.[108]
[107] Defendant's written outline of opening submissions dated 25 November 2022, pars 19, 29.
[108] ts 52.
In short, the defendant's position was that the risk of harm is not to be formulated by reference to the existence of any sharp edge, the presence of which the defendant denied, but by the risk of harm or injury by walking into 'kiosk infrastructure likely to be rigid'.
I take this to be the defendant's formulation of the risk of harm in this case.
4.3 The legal principles
The importance of identifying the risk of harm has been stressed in numerous appellate authorities.[109] A review of the authorities reveals that it is not necessarily easy to identify the nature of the risk of harm in a particular case.[110]
[109] Menz v Wagga Wagga Show Society Inc [2020] NSWCA 65 [49] - [50] (Menz).
[110] See for example Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2022] HCA 11; (2022) 273 CLR 454 (Tapp); Blue Op Partner Pty Ltd v De Roma [2023] NSWCA 161; Port Macquarie Hastings Council v Mooney [2014] NSWCA 156 [53] (Mooney).
The proper assessment of the alleged breach of duty depends on the correct identification of the relevant risk of injury because it is only then that an assessment can take place of what a reasonable response to that risk would be.[111] The correct identification of the risk of harm is not only relevant to the issue of breach,[112] but it also provides the framework for considering the questions of obvious risk[113] and contributory negligence.[114]
[111] Tapp [106]; Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330, 338 [18], [59] Gummow J (Heydon J agreeing) (Dederer).
[112] Schultz v McCormack [2015] NSWCA 330 [86]; Nikolich v Webb [2020] WASCA 169 [93] (Nikolich).
[113] Nikolich [93]; The defendant's alternative position was that if the structure covered in the black cloth comprised a hazard or risk, it was, by reason of the covering of the structure in the black cloth, an 'obvious risk' such that there was no duty to warn.
[114] Tapp [60].
The correct specification of the risk of harm is important in every case because it applies at the threshold in every case in which a failure to take reasonable care is alleged by reason of the three mandatory matters that the plaintiff must establish in CLA s 5B(1) and the four matters in CLA s 5B(2) which the court is required to consider. All of these matters are addressed to 'a risk of harm'.[115]
[115] Menz [49] - [50]; Nikolich [67].
The enquiry is concerned with determining what person, thing or set of circumstances gave rise to the potential for the harm for which the plaintiff seeks damages.[116]
[116] Tapp [110] - [116] (Gordon, Edelman & Gleeson JJ) [106]; Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1, 22, [98].
The following principles apply in identifying the risk of harm:[117]
[117] Nikolich [69].
1.The formulation of the risk of harm should identify the true source of potential injury and the general causal mechanism of the injury sustained.
2.The risk must be defined taking into account the particular harm that materialised and the circumstances in which that harm occurred.
3.What is to be avoided is an unduly narrow formulation of risk of harm which then distorts the reasoning, for example, because:
(a)it obscures the true source of potential injury;
(b)it too narrowly focuses on the particular hazard which caused the injury; or
(c)it fails to capture part of the plaintiff's case.
4.4 Analysis and conclusions: the formulation of the risk of harm in this case
With those principles in mind, I turn now to consider the correct formulation of the risk of harm in this case.
In my view the proper formulation of the risk of harm is the risk of an entrant or user of the mall coming into contact with a sharp concealed edge and thereby sustaining injury.
Whilst the characterisation of the risk of harm does not need to descend to the precise detail of the mechanism by which an injury was suffered if that detail is unnecessary to establish a breach of duty, where the risk of harm is too generally expressed, such that the nature of what occurred is mischaracterised, then a greater degree of specificity is required.[118] That is, the characterisation of the relevant risk should not obscure the true source of the potential injury.[119]
[118] Blue Op Partner v De Roma [46], [51] - [52] citing Menz v Wagga Wagga Show Society Inc ([71]; Tapp [110] - [116].
[119] Tapp [106]; Perisher Blue Pty Ltd v Nair-Smith [99]; Dederer (351), [60].
The defendant's characterisation of the risk of harm obscures the real risk of harm, it fails to capture the general causal mechanism of the injury sustained by the plaintiff and the true source of the potential injury in this case.[120]
[120] Tapp [106]; Perisher Blue Pty Ltd v Nair-Smith [99]; Dederer (351), [60].
There is a vast difference in risk between a user of the mall walking into a structure which was 'likely to have been rigid' but which did not comprise any sharp edge or edges to a user of a mall coming into contact with a sharp, but concealed, edge.
The risk of harm here arose directly from the existence of the sharp, but concealed, edge in proximity to an area where the defendant knew or ought to have known that users of the mall would walk, and did walk on that day, namely the right-hand thoroughfare of the mall.
It was the concealed glass sharp edge that posed a risk of harm to users of the mall, not the general structure broadly. Specifically, it was the existence of the concealed glass sharp edge at the height and positioning relative to where pedestrians were likely to walk that comprised the true source of potential injury.
It was that sharp edge with which the plaintiff's left leg came into contact that was the general causal mechanism of the injury sustained by the plaintiff.
The formulation of the risk of harm as being the risk of an entrant or user of the mall coming into contact with a sharp concealed edge and thereby sustaining injury is the risk of harm that is to be applied in the following assessment of breach of duty of care under CLA s 5B and OLA s 5, the issue of obvious risk under CLA s 5F and s 5O and the issue of contributory negligence under CLA s 5K.
Part 5 - Duty of care
5.1 Duty of care
The existence of the defendant's duty of care to take reasonable precautions to ensure that persons such as the plaintiff were not injured as a consequence of any act or omission on the premises was[121] not in dispute in this trial.
[121] Defence, par 5.1.
The OLA prescribes the standard of care owed by occupiers and landlords of premises to persons and property on the premises.[122] The defendant was an 'occupier' for the purposes of the OLA.[123]
[122] OLA the Long Title; Department of Housing and Works v Smith [No 2] [2010] WASCA 25 (Smith) [58] (Buss JA) (as his Honour then was).
[123] OLA, s 2.
Subject to exceptions which are not relevant in this case, the standard of care owed by the defendant to entrants of the premises is such care as in all the circumstances of the case is reasonable to see that an entrant on the premises will not suffer injury or damage by reason of any danger or dangers due to the state of the premises or by reason of anything done or omitted to be done on the premises.[124]
5.2 The scope of the duty of care
[124] OLA s 5(1).
Before determining whether there has been any breach of the duty of care the defendant accepts it owed the plaintiff as an entrant to the premises, the question of the scope of that duty of care falls to be considered.
The defendant's primary position as has been explored was that the kiosk was not a hazard and it posed no danger.[125] The defendant's alternative position raises the issue of obvious risk[126] which may cut across the scope of the duty of care owed.
[125] Defendant's written outline of opening submissions dated 25 November 2022, par 18; Defence, par 6.
[126] CLA s 5H and s 5O.
It is therefore convenient to address the defendant's alternative position here. The alternative position was pleaded as:
1.If the kiosk was a danger, it was an obvious danger.[127]
2.A reasonable person in the position of the plaintiff would have known that 'kiosk infrastructure' was present under the black sheet and that that infrastructure was 'likely to be rigid'.[128]
3.A reasonable person taking care for their safety would recognise that that there was 'something there' (under the black cloth) and that they ought to take steps to avoid it. Even the plaintiff recognised that risk said the defendant.[129]
4.The defendant's position was that the risk of suffering 'damage' by coming into contact with the kiosk would have been obvious to a hypothetical reasonable person in the plaintiff's circumstances.[130]
[127] Defendant's written outline of opening submissions dated 25 November 2022, par 18.
[128] Defendant's written outline of opening submissions dated 25 November 2022, par 29.
[129] ts 60.
[130] Defendant's written outline of opening submissions dated 25 November 2022, par 30.
Whilst part of the defendant's alternative position raises issues that relate also to breach, the alternative position also raises the question of whether that any risk of harm was an obvious risk.
Accordingly, the defendant argued that it did not owe the plaintiff a duty of care to warn the plaintiff of any risk posed by the kiosk, or the edge of the kiosk, within the meaning of s 5F as applied by s 5O of the CLA.[131]
5.3 Obvious risk
5.3.1 The statutory framework
[131] Defence paragraph 6; Defendant's written outline of opening submissions dated 25 November 2022, par 24; ts 60.
Section 5O of the CLA, found in div 6 of pt 1A headed 'Assumption of risk' provides:
5O.No duty to warn of obvious risk
(1)A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff.
(2)This section does not apply if:
(a)the plaintiff has requested advice or information about the risk from the defendant; or
(b)the defendant is required by a written law to warn the plaintiff of the risk; or
(c)the defendant is a professional and the risk is a risk of harm to the plaintiff from the provision of a professional service by the defendant.
(3)Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection.
CLA s 5F[132] provides:
Term used: obvious risk
(1)For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.
(2)Obvious risks include risks that are patent or a matter of common knowledge.
(3)A risk of something occurring can be an obvious risk even though it has a low probability of occurring.
(4)A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.
[132] OLA div 6 'obvious risk' has the meaning given by s 5E (s 5M). Section 5E provides that 'obvious risk' has the meaning given by s 5F.
The Court of Appeal in Nikolich[133] examined the issue of obvious risk and the proper construction of the provisions in the CLA which deal with obvious risk, relevantly for these purposes, s 5O.
[133] Nikolich [90] - [94].
The principles arising from Nikolich can be summarised as follows:
1.Subject to s 5O(2), on its proper construction s 5O removes any duty of care to warn of an obvious risk.[134]
[134] Nikolich [81]; Keven Gors by his Plenary Administrator Janet Christine Gors v Tomlinson [2020] WASCA 164 [85] - [86] (Gors); Nikolich [81].
2.The obviousness of a risk is a question of fact.[135]
[135] Nikolich [90]; Carter v Hastings River Greyhound Racing Club [2020] NSWCA 185; (2020) 102 NSWLR 691 [114].
3.It will turn on the evidence of what occurred and why the risk is one that is obvious.[136]
[136] Nikolich [90]; Menz [74].
4.In broad terms, an obvious risk, as defined in s 5F of the CLA, is one which is clearly apparent or easily recognised or understood.[137]
[137] Nikolich [91]; Liverpool Catholic Club Ltd v Moor [2014] NSWCA 394 [23].
5.The risk must be obvious in the sense that, in the circumstances, it would have been obvious to a reasonable person in the position of the plaintiff.[138]
[138] Nikolich [91]; CLA s 5F(1). See also Jaber v Rockdale City Council [2008] NSWCA 98 [27], [35]; Collins v Clarence Valley Council [2015] NSWCA 263 [136]; Kempsey Shire Council v Five Star Medical Centre Pty Ltd [2018] NSWCA 308 [12]. By contrast, s 5B of the CLA characterises the risk from the perspective of the defendant: Menz [56].
6.The test of obviousness is objective and does not turn on the subjective knowledge or beliefs of the plaintiff (although taking into account personal characteristics of the plaintiff; for example, whether he or she was a child).[139]
[139] Nikolich [91]; Jaber v Rockdale City Council [27] - [28]; CG Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136 [109]; Collins v Clarence Valley Council [136]; Kempsey Shire Council v Five Star Medical Centre Pty Ltd [11].
7.However, the plaintiff's actual knowledge of matters which constitute the risk of harm may be relevant in two ways. First, the way in which the knowledge was acquired may be relevant to the prospective inquiry as to whether the risk would have been obvious to a reasonable person in the position of the plaintiff. Second, it may be relevant to know the extent to which the plaintiff was actually aware of the risk, in whole or part, so far as the obvious risk inquiry is into the knowledge that a reasonable person in the plaintiff's position should be taken to have had.[140]
[140] Nikolich [91]; Liverpool Catholic Club v Moor [32] - [33]; Collins v Clarence Valley Council [139]; Schultz v McCormack [93].
8.The inquiry must take account of the objective circumstances of the plaintiff.[141]
[141] Nikolich v Webb 2020 WASCA 169 [92]; Jaber v Rockdale City Council [28]; Collins v Clarence Valley Council [136].
9.The nature of the conduct or hazard that caused the harm also informs the obviousness of the risk.[142]
[142] Nikolich [92]; Fallas v Mourlas [2006] NSWCA 32; (2006) 65 NSWLR 418 [54].
10.The surrounding circumstances which occurred immediately prior to the plaintiff suffering the relevant harm must be identified[143] as it is necessary to identify the factual scenario facing the plaintiff.[144]
11.The process of determining whether a risk that has materialised is an obvious risk should not be over-intellectualised.[145]
12.The language in s 5F (ie risks that are 'patent' or 'common knowledge' even if of 'low probability' or 'not prominent, conspicuous or physically observable') is not technical and does not invoke a legal concept.[146]
13.The prospective nature of the task therefore requires formulation of the risk at a reasonable level of generality as to the kind of risk involved.[147]
14.Stamping the character of the risk by reference to the 'fine‑grained detail' available in hindsight as to how the event occurred is to defeat the evident object of s 5O.[148]
15.Nevertheless, for the purpose of s 5O, the specification of the risk must nevertheless be of sufficient particularity to capture, fairly, the harm which resulted from the risk materialising on the facts of the particular case.[149]
16.Determining the appropriate level of particularity in the formulation of the relevant risk of harm involves having an eye to hindsight.[150]
17.In this respect, hindsight may be used in selecting the relevant risk from a range of possible risks otherwise ascertained by reference to foresight. The correct approach is one which requires a balance to be drawn on the evidence in a particular case.[151]
5.3.2 Analysis and conclusions
[143] Nikolich [92]; Fallas v Mourlas [98].
[144] Nikolich [92]; Schultz v McCormack [92].
[145] Nikolich [92]; Singh v Lynch [51].
[146] Nikolich [92]; Singh [51].
[147] Nikolich [94]; Singh [65]. See also Fallas v Mourlas [55]; Kempsey Shire Council [12]; Menz [70] - [71]; Singh v Lynch [195(a) - (b)].
[148] Nikolich [94]; Singh v Lynch [50], [65].
[149] Nikolich [94]; See CG Maloney Pty Ltd v Hutton-Potts [172] - [174] (Bryson JA); Menz v Wagga Wagga Show Society [70] - [72] (Leeming JA with whom Payne & White JJA agreed).
[150] Nikolich [94]; Menz v Wagga Wagga Show Society Inc [72].
[151] Nikolich [94]; Singh v Lynch [49] - [50].
For the reasons I have identified in [4.4] the risk of harm is a risk of a user of the premises coming into contact with a sharp concealed edge and thereby sustaining injury.
In determining whether the risk that the plaintiff might suffer injury by coming into contact with a concealed sharp edge and thereby suffer injury is an 'obvious risk' for the purposes of CLA s 5O, I need to assess whether it was a risk that, in the circumstances, would have been obvious to a reasonable person in the position of the plaintiff.
In making this assessment I rely on the following findings of fact:
1.About the relevant circumstances at the time: see [3.1];
2.About the plaintiff's knowledge of kiosks: see [3.6];
3.That at no stage on or prior to 21 May 2020 had the plaintiff seen the structure or kiosk underneath the black cloth;
4.About the effect of the black cloth: see [3.7]; and
5.The existence of the sharp edge concealed by the black cloth was a matter that was entirely within the defendant's actual or constructive knowledge: see [3.4].
Taking all of those findings of fact into account the risk that the plaintiff might suffer injury by coming into contact with a concealed sharp edge and thereby suffer injury was not a risk that, in all the circumstances, would have been obvious to a reasonable person in the plaintiff's position.
Reasonable knowledge of the risk of harm of coming into contact with a concealed sharp edge and thereby sustaining injury would require that a person in the position of the plaintiff ought reasonably to have known that that structure contained or might contain a sharp edge.
For the reasons I have identified earlier the existence of the concealed sharp edge was knowledge in fact withheld by the defendant from a reasonable user of the mall through the use of the black cloth. The risk of harm as I have formulated it was not a risk that was patent nor a matter or common knowledge.[152]
[152] CLA, s 5F(2).
It cannot therefore be said to be a risk that, in the circumstances, would have been obvious to a reasonable person in the position of the plaintiff.
It follows I am satisfied that the risk of harm posed by a user of the premises coming into contact with the concealed sharp edge was not a risk that was 'obvious' for the purposes of CLA s 5F.
It follows by reason of the operation of CLA s 5O that the defendant owed a duty of care to Ms Chamberlain to warn her of the risk of harm of injury posed by coming into contact with the sharp concealed edge.
The defendant failed to do so.
5.4 Would a warning have changed or affected the behaviour of users of the plaintiff?
To the extent that I am required to make a finding as to whether a warning would have changed or affected the behaviour of Ms Chamberlain as an entrant to the mall no evidence was led about this at trial, in fact such evidence would have been entirely self‑serving.
Unlike the examination that other courts have made in other jurisdictions,[153] the risk of harm in this case was discrete in its location. This is not a case where the risk of harm was such that it was located in multiple points along a beachfront, such that a warning would not have affected nor impacted the actions of beachgoers or entrants to that area generally. Neither was the risk of harm in this case subject to change according to whether it was day or night[154] nor was it subject to any changing environmental conditions (for example changes to water depth as a result of varied tidal or weather conditions) or changing surface areas.[155]
[153] Noting that the NSW decisions apply NSW CLA s 5C(a) 'the burden of taking precautions to avoid the risk of harm includes similar risks of harm for which the person may be responsible'. There is no direct equivalent in the WA CLA. The assessment above needs to be read in that context. See for example Menz.
[154] As in Menz.
[155] See eg Tapp.
The risk of harm here was in all respects a static risk and a risk confined to a discrete area of the premises.
There were a number of simple precautions which could have been taken to warn users of the mall of the existence of the concealed sharp edge. These are set out in detail in Part 6. As a matter of common sense such precautions may have comprised any of the following placed at, or around, that aspect of the structure containing the concealed sharp edge and where users of the mall were likely were walk:[156]
1.bollards with rope around the external perimeter of the structure;
2.another physical barrier such as a screen;
3.witches hats or cones with visible tape (for example red and white striped plastic tape); or
4.warning signs of the presence of a concealed danger or hazard.
[156] See Part 6 in respect of CLA s 5B(1)(c).
I am satisfied on the balance of probabilities that a warning in these circumstances would have made a difference in the approach the plaintiff took towards that aspect of the structure.
In my view, applying common sense, I am satisfied that a warning in the form of a barricade, bollards with rope or cones or some other visual simple warning notifying users of the mall of the presence of a danger would have been effective in notifying plaintiff of the existence of an otherwise concealed danger.
I am satisfied that any of those simple precautions would have notified the plaintiff that she needed to heed a concealed danger.
I am satisfied on the balance of probabilities having seen and heard the plaintiff give her evidence that she would have heeded such a warning and taken appropriate steps.
The defendant therefore was under a duty to warn the plaintiff and other users of the mall about the existence of the sharp concealed edge.
Part 6 - Did the defendant breach the duty of care owed to the plaintiff?
6.1 The statutory framework - the CLA, the OLA, or both?
The plaintiff argued that s 5B of the CLA applies to the plaintiff's claim for damages.[157] At trial, counsel for the plaintiff argued that both the OLA and the CLA are relevant to the determination of this matter. The plaintiff submitted that it is a case of applying both statutes and that the provisions of both the OLA and the CLA run alongside each other.[158]
[157] Plaintiff's outline of opening submissions dated 18 November 2022.
[158] ts 9, ts 3 - ts 4.
In determining whether the defendant breached the duty of care, the defendant's submissions were consistent with the application of s 5B of the CLA.[159]
[159] Defendant's outline of opening submissions dated 25 November 2022, pars 4, 7, 8 and 11, consistently with the application of s 5B CLA and the common law; See also Smith.
There is no relevant inconsistency between the criteria in s 5(1) and s 5(4) of the OLA on the one hand and s 5B of the CLA on the other in their application to the facts and circumstances of the present case.[160]
[160] Smith [84] (Buss JA).
Therefore, consistently with the way this matter has been pleaded and argued at trial, I approach the criteria in s 5(1) and s 5(4) of the OLA as having to be read with s 5B of the CLA.[161]
[161] And consistently with the observations of Buss JA (as he then was) in Smith [84] - [85].
The onus is on the plaintiff to prove a breach of duty of care.[162]
6.2 The legal principles
[162] Marsh v Baxter [2015] WASCA 169; (2015) 49 WAR 1 [717] (Newnes & Murphy JJA) (Marsh).
In addressing the question of whether the defendant breached its duty of care it is necessary to have regard to the terms of CLA s 5B which sets out the preconditions for establishing a breach of duty.[163]
[163] Rather than the existence of a duty.Mamo v Surace [2014] NSWCA 58; (2014) 86 NSWLR 275 [48]; Smith [70] - [83]; Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; (2009) 239 CLR 420[27] (Adeels) (judgment of the court); CGU Insurance Ltd v Coote(by his Next Friend Stephen Desmond Coote) [2018] WASCA 117 [77] (CGU Insurance) (judgment of the court) approving the reasoning by Buss JA in Smith.
CLA s 5B(1) provides that:
A person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless -
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b)the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the person's position would have taken those precautions.
The phrase 'in failing to take precautions against a risk of harm' refers to 'a failure by the person in question to take positive action against the possibility of the occurrence of harm of any kind including personal injury, damage to property and economic loss'.[164]
[164] Smith [78]; as defined in CLA, s 3.
The CLA s 5B(1) requires identification of what precautions a reasonable person in the position of the defendant would have taken by way of response to a foreseeable, not insignificant risk.[165] In undertaking this inquiry, some principles are well established:
[165] Smith [105].
1.the issue is to be determined objectively;[166]
[166] Dederer [70] (Gummow J); Allied Pumps Pty Ltd v Hooker [2020] WASCA 72 [33] (Buss P & Vaughan JA); [116] (Murphy JA) (Allied Pumps).
2.the issue is also to be determined prospectively, not with the wisdom of hindsight;[167]
3.it is only through correct identification of the risk that one can assess what a reasonable response to that risk would be;[168]
4.the response to a foreseeable risk is to be judged by the criterion of reasonableness, not some more stringent requirement of prevention, meaning the court does not look backward to identify what would have avoided the injury to the plaintiff;[169]
5.a failure to eliminate a reasonably foreseeable risk does not establish negligence;[170]
6.the determination of what, if anything, a reasonable person in the occupier's position would have done involves an assessment of what would have been reasonable and practicable for the occupier to have done;[171]
7.contemporary standards within the community are relevant in determining what is reasonable in the circumstances of a particular case;[172]
8.in some circumstances, a reasonable person's reaction to a risk of harm may take account of the possibility of thoughtlessness, inadvertence or carelessness on the part of persons to whom a duty is owed;[173]
9.reasonableness may require no response to a foreseeable risk that is not insignificant;[174]
10.the occurrence of a foreseeable risk, that was not insignificant, does not establish unreasonableness;[175] and
11.the answer to this question involves a factual judgment turning on the facts of the case as they are proved in evidence.[176]
[167] J-Corp Pty Ltd v Thompson [2019] WASCA 173 [33] - [38] (judgment of the court) (J-Corp); Taylor v Fisher [2018] WASCA 126 [58] (Martin CJ), [105] (Murphy & Beech JJA) (Taylor); CGU Insurance [78]; Allied Pumps [12], [33], [120]; Smith [87]; Mooney [50].
[168] J-Corp [37] - [38].
[169] J-Corp [33] - [38]; CGU Insurance [78]; Allied Pumps [12].
[170] Taylor [105].
[171] Taylor [58]; Smith [87].
[172] Taylor [58]; Smith [87].
[173] CGU Insurance [91].
[174] Taylor [58]; Smith [87].
[175] Taylor [58]; Smith [87].
[176] Adeels [40]; Allied Pumps [15] and [122].
By CLA s 5B(2), in determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a)the probability that the harm would occur if care were not taken;
(b)the likely seriousness of the harm;
(c)the burden of taking precautions to avoid the risk of harm;
(d)the social utility of the activity that creates the risk of harm.
I apply the well‑established propositions regarding the concept of a 'reasonable person' and the standard of 'reasonableness' which remain relevant in considering cases of an alleged breach of duty by an occupier (or a lessor).[177] These propositions are not inconsistent with the criteria in OLA s 5(1) and s 5(4) nor with CLA s 5B.[178]
[177] Smith [87] (Buss JA).
[178] Smith [88] (Buss JA).
The relevant 'risk of harm' in this case is the risk of personal injury.[179] For the reasons I have given earlier,[180] the correct formulation of the risk of harm which I apply at every stage in the following analysis is the risk of a user of the mall or entrant to the premises coming into contact with a sharp concealed edge and thereby sustaining injury.
6.3 Analysis - Was the risk of harm foreseeable? CLA s 5B(1)(a)
[179] CLA, s 3 (definition of 'harm'); Allied Pumps [12], [19] - [22], [123].
[180] See [4.4].
The first element of CLA s 5B(1) is whether the risk was foreseeable, that is, it is a risk of which the defendant knew or ought to have known.[181]
[181] CLA, s 5B(1)(a).
As to this inquiry, the following observations of Garling J in Garzo v Liverpool/Campbelltown Christian School Limited on the equivalent provision in the Civil Liability Act 2002 (NSW) are apposite:[182]
The establishment, by a plaintiff, of constructive knowledge in the defendant of the risk of harm necessarily depends upon all of the facts, matters and circumstances which were known to it or else ought to have been known to it. In addition to the particular facts and circumstances of this case, other matters which may impact upon the drawing of an inference as to knowledge may include such things as the common knowledge and experience of others in similar positions to the defendants, public notoriety of a particular risk of harm, publications containing academic exposition of risk which might be expected to be read by people in the position of the defendant, and as well, the obviousness or likelihood of an event happening when applying common sense. It is important to emphasise however that knowledge, whether actual or constructive, must be judged as at the date of the alleged negligence and not at a later date; that is, without the benefit of hindsight and ignoring subsequent increases in knowledge about the risk and its consequences.
[182] Garzo v Liverpool/Campbelltown Christian School Ltd [2011] NSWSC 292 [70] (Garling J).
The defendant called no evidence in this trial. Accordingly, there was no evidence led or adduced through cross‑examination about the defendant's actual knowledge of the sharp concealed edge.
That the defendant exercised its right not to call nor adduce evidence, it bearing no onus of proof, does not (and cannot) lead to the conclusion that a court cannot determine the question of breach of duty.
The thoroughfare to the right of the structure was a thoroughfare or pathway that users of the mall would (and did) utilise in moving to and from the food hall.
It was the defendant's duty to understand and to know the structures located on the premises, their location in the context of where entrants to the premises might (and would in fact be likely to) pass and whether there was anything about those structures which posed a danger to entrants of the premises.
For the reasons given above, the black cloth concealed from entrants to the premises what lay beneath. The set up of the mall was a matter entirely within the defendant's control. The knowledge of the existence of the sharp edge remained with the defendant only and all other users of the mall were deprived of that knowledge.[183]
[183] ts 71.
I find that the defendant ought to have known that there was a sharp but concealed edge at a height and location proximate to the right thoroughfare of the mall.
The plaintiff has established on the balance of probabilities that the risk of harm of entrants to the mall coming into contact with a structure containing a concealed sharp edge and thereby sustaining injury is a risk of harm which was a risk of which the defendant 'ought to have known'. The risk was foreseeable. CLA s 5B(1)(a) is established.
6.4 Analysis - Was the risk of harm not insignificant? CLA s 5B(1)(b)
The second element of CLA s 5B(1) is whether the risk was 'not insignificant'.[184] This requirement imposes a slightly more demanding standard than the common law test.[185] However, it is still 'not particularly high'.[186] The focus is on the degree of probability of the risk occurring.[187]
[184] CLA, s 5B(1)(b).
[185] Marsh [714].
[186] Cox v Fellows [2013] NSWCA 206 [145] (Gleeson JA, with whom Basten & Ward JJA agreed).
[187] Meandarra Aerial Spraying Pty Ltd v GEJ & MA Geldard Pty Ltd [2013] 1 Qd R 319, 26 (Fraser JA, with whom White JA & Mullins J agreed); Peter Steven Benic v State of New South Wales [2010] NSWSC 1039 [101] (Garling J).
I am satisfied that the risk of a user of the mall coming into contact with a concealed sharp edge and thereby sustaining injury was a risk that was 'not insignificant'.
The concealment of the existence of the sharp edge from entrants to the mall in my view, increased the likelihood of an entrant coming into contact with it and thereby sustaining injury.
It is logical that an entrant to the premises not knowing of the existence of a sharp concealed edge is at greater risk of coming into contact with it than if the sharp edge was plain to be seen.
It was a risk that was not insignificant by a combination of the following facts that I have found to be proved:
1.the nature of the edge comprising pieces of glass that came together to form a sharp edge;
2.the sharp edge was concealed by reason of it being cloaked by the black cloth;
3.the sharp edge was at a height that was below eye level;
4.the sharp edge was at a height that was different to other aspects of the structure; and
5.the location of the sharp edge at the outer right aspect of the structure where users of the mall were likely to, and did, pass.
The risk of harm of an entrant to the premises coming into contact with a sharp concealed edge and sustaining injury was not insignificant. CLA s 5B(1)(b) is established.
6.5 Analysis - 'The circumstances' and the 'reasonable person': CLA s 5B(1)(c) and OLA s 5(4)
The third element of CLA s 5B(1) is whether, in all the circumstances, a reasonable person in the defendant's position would have taken precautions against the risk of harm.
The factors in OLA s 5(4) are a convenient framework within which to assess the 'circumstances'. I will then deal with the 'reasonable person' for the purposes of CLA s 5B(1)(c) together with the factors set out in CLA s 5B(2).
The circumstances
In determining whether an occupier of premises has discharged its duty of care, consideration shall be given to the following seven factors enumerated in OLA s 5(4):
(a)the gravity and likelihood of the probable injury; and
(b)the circumstances of the entry onto the premises; and
(c)the nature of the premises; and
(d)the knowledge which the occupier of premises has or ought to have of the likelihood of persons or property being on the premises; and
(e)the age of the person entering the premises; and
(f)the ability of the person entering the premises to appreciate the danger; and
(g)the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.
As to OLA s 5(4)(a) 'the gravity and likelihood of the probable injury',[188] this mirrors to a large extent CLA s 5(1)(a) and s 5(1)(b); as to which see the analysis above.
[188] OLA, s 5(4)(a).
To the extent that there is any difference between CLA s 5(1)(a) and s 5(1)(b) and OLA s 5(4)(a), the gravity of the probable injury caused by an entrant of the premises coming into contact with a sharp concealed edge is potentially very serious.
The gravity of the probable injury would range depending on which part of the body came into contact with the sharp edge, at what speed and at what force. It is a matter of logic that the gravity of a laceration from contact with a sharp edge is potentially very serious.
As to OLA s 5(4)(b), the 'circumstances of the entry onto the premises',[189] the plaintiff was on the premises during opening hours when the shops and facilities were open to the public. Her purpose for being at the mall was to walk to the food court to purchase some food and a drink.
[189] OLA, s 5(4)(b).
As to OLA s 5(4)(c), the 'nature of the premises',[190] the premises comprised a major suburban shopping centre. The very business of the premises as a whole was to provide vendors with the space to sell their products and to provide entrants with the opportunity via entrance to the premises to shop or otherwise use the facilities.
[190] OLA, s 5(4)(c).
It was therefore entirely reasonable for the defendant to expect at differing times high volumes of foot traffic on the premises generally, and foot traffic moving in and around the area comprising the location of the sharp concealed edge.
As to OLA s 5(4)(d) it follows from my observations above, that defendant knew or ought to have known that during opening hours there was a high likelihood or persons being on the premises.
As to OLA s 5(4)(e) the age of the person entering the premises, the plaintiff was 23 years old at the time of her entry on 20 May 2020. There is nothing unusual about this. The defendant ought to have known or anticipated the likelihood of entrants to the premises of all ages, including young children.
As to OLA s 5(4)(f) 'the ability of the person entering the premises to appreciate the danger', for the reasons I have given earlier, the concealment of the sharp edge at its height and location under the black cloth, a person in the position of the plaintiff would not have the ability to appreciate the danger.
The danger was concealed from the plaintiff and other entrants to the premises by the way in which it was cloaked in the black cloth.
As to OLA s 5(4)(g) I consider this in the context of CLA s 5B(2).
6.6 Analysis - What is the response of a 'reasonable person'? CLA s 5B(2)
As to CLA s 5B(2)(a), the probability that the harm would occur if care was not taken was high.[191]
[191] CLA, s 5B(1)(a).
As to CLA s 5B(2)(b), the likely seriousness of the harm was high to very high.[192]
[192] CLA, s 5B(1)(b).
As to CLA s 5B(2)(c) this is dealt with below.
As to CLA s 5B(2)(d), the social utility of the activity that created the risk of harm was in allowing smaller businesses to have a space to sell their stock. I find there to be social utility in this regard.
However, part of the 'activity' that created the risk of harm in this case was the set up and location of the closed kiosk (and therefore location of the sharp concealed edge) proximate to where entrants of the mall were likely to, and did, walk. There is no social utility in this aspect of the activity.
6.6.1 The precautions of a 'reasonable person': CLA s 5B(2)(c) and OLA s 5(4)(g)
It is necessary to consider the burden of taking precautions to avoid the risk of harm (CLA s 5B(2)(c)) and the burden of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person (OLA s 5(4)(g)).
The plaintiff asserts that a reasonable person in the position of the defendant would have, and should have, taken any number of reasonably simple, inexpensive but effective precautions to guard against the risk of harm by a user of the mall walking into, or coming into contact with, the sharp edge of the structure concealed by the black cloth. These include those precautions identified in this section below.
The defendant's submissions about the reasonable response to the risk of harm falls into two parts. The first aspect reagitates the defendant's primary position concerning the formulation of the risk of harm.[193]
[193] See Part 4.
The second aspect falls within the defendant's alternative position. The defendant argued that the reasonable response to the risk of an entrant, the risk of 'somebody's knee' coming into contact with the corner of the cabinet 'whether it be glass, whether it be wood, whether it be some other construction' would be to draw that particular cabinet to the reasonable person's attention 'in some way'.[194]
[194] ts 58.
In short, the defendant's position was that the presence of the black cloth was the reasonable response to any risk of harm, as the alternative position.[195]
[195] See Part 5 'obvious risk'.
The defendant argued further that any risk of harm was a risk which could not be completely ameliorated nor eliminated.[196] I reject that submission. It was a risk which could easily and clearly be ameliorated if not eliminated.
[196] ts 59.
The plaintiff did not call evidence from a witness about the burden of taking precautions to avoid the risk of harm but, in my view, it is a matter of common sense and logic.
As a matter of common sense those precautions to avoid the risk of harm might have included any of the following:
(a)placing bollards with rope around the external perimeter of the structure, thereby requiring users of the mall to walk at a safe distance around the structure, and particularly the area containing the sharp concealed edge;
(b)placing another physical barrier such as a screen to signal to users of the mall that that was an area around which they needed to walk;
(c)placing witches hats or cones with visible tape between them at the outer right aspect of the structure signalling to entrants of the premises that there was a danger or a hazard at that point; or
(d)placing a sign or a number of signs warning entrants of the mall that there was a concealed danger or hazard at that aspect of the structure.
Whilst there was no direct evidence of any of these precautions from a witness, I consider that I am in as good a position as any other person to make these observations. This is not an area upon which expert evidence is required and neither was it suggested to be by either party in these proceedings.
The precautions identified in (a) are often seen in shopping precincts and centres when special events are held: for example, lines to see and have photographs with Santa Claus.
The precautions identified in (b) and (c) are commonly seen when Councils undertake work on footpaths or common areas of usage.
The precautions identified in (d) are commonly seen in shopping centres when there is, for example, liquid or a slipping hazard.
The burden of taking any of the precautions identified above to avoid the risk of harm would not be onerous on the defendant, nor expensive. Further, all of the precautions above would be simple and easy to install. Both of these conclusions are matters of common sense and logic.
Addressing OLA s 5(4)(g), it follows that the burden on the defendant of eliminating the danger or protecting the person entering the premises from the danger was low as compared to the risk of the danger to the person in the absence of those precautions being very high.
I conclude that a reasonable person in the position of the defendant would have taken any of the identified precautions which would have had the effect of warning of the existence of the risk of harm.
Any one of the precautions identified would have had the effect of warning users of the premises of the existence of the concealed danger.
I conclude that, in the circumstances a reasonable person in the defendant's position would have taken any one of those precautions. CLA s 5B(1)(c) is established.
6.7 Conclusion on breach of duty of care
In applying CLA s 5B(1) and s 5B(2), I conclude that the defendant failed to take precautions against a risk of harm that was foreseeable, not insignificant and in circumstances where a reasonable person in the defendant's position would have taken those precautions.
On an application of OLA s 5(1) and s 5(4), I reach the same conclusion.
Part 7 - Contributory negligence
7.1 The position of the parties
The defendant pleads that Ms Chamberlain's injury was caused or contributed to by her own negligence.
The defendant's position on the issue of contributory negligence, summarised, at [1.1], is that the plaintiff's injury occurred because the plaintiff was not looking where she was walking at the relevant time, she was holding and looking at her mobile phone and she was therefore 'the author of her own misfortune'.[197]
[197] Defendant's outline of opening submissions dated 25 November 2022, par 17.
The plaintiff's position summarised earlier is that misjudgment does not equate to contributory negligence.
7.2 The statutory framework: CLA s 5K
Section 5K of the CLA prescribes how contributory negligence is to be determined:[198]
5K.Standard of contributory negligence
(1)The principles that are applicable in determining whether a person is liable for harm caused by the fault of the person also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
(2)For that purpose -
(a)the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person; and
(b)the matter is to be determined on the basis of what that person knew or ought to have known at the time.
[198] Anderson v Joyce [2019] WADC 121 [142] (Herron DCJ).
The 'applicable principles' referred to in s 5K(1) are those found in s 5B of the CLA.[199] By virtue of CLA s 5K the same standard of care applies to the liability of a defendant in negligence and to a defence that a plaintiff has been contributorily negligent'.[200] Thus, the standard of care for contributory negligence is the same as it is for negligence itself.[201]
[199] Adeels [27]; Town of Port Hedland v Reece William Hodder by Next Friend Elaine Georgina Hodder [No 2] [2012] WASCA 212 [371] (Town of Port Hedland).
[200] Town of Port Hedland [294].
[201] Joyce v Anderson [2020] WASCA 48 [170] - [172] (Joyce); Town of Port Hedland [294]; J‑Corp [34] - [35], [38].The onus of establishing contributory negligence is on a defendant.[202]
[202] Town of Port Hedland [294].
The test of contributory negligence is an objective one. Contributory negligence, like negligence, 'eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question'.[203]
[203] Joslyn v Berryman [2003] HCA 34 [32], [34].
Section 5K(2)(b) also expressly requires that contributory negligence is to be determined by what the person harmed 'knew or ought to have known at the time'.
It follows that contributory negligence is similarly to be assessed prospectively and not with the benefit of hindsight.[204] As the High Court held in Astley v Austrust Ltd:[205]
A finding of contributory negligence turns on a factual investigation of whether the plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person or property. What is reasonable care depends on the circumstances of the case. In many cases, it may be proper for a plaintiff to rely on the defendant to perform its duty. But there is no absolute rule. The duties and responsibilities of the defendant are a variable factor in determining whether contributory negligence exists and, if so, to what degree. In some cases, the nature of the duty owed may exculpate the plaintiff from a claim of contributory negligence; in other cases the nature of that duty may reduce the plaintiff's share of responsibility for the damage suffered; and in yet other cases the nature of the duty may not prevent a finding that the plaintiff failed to take reasonable care for the safety of his or her person or property. Contributory negligence focuses on the conduct of the plaintiff. The duty owed by the defendant, although relevant, is one only of the many factors that must be weighed in determining whether the plaintiff has so conducted itself that it failed to take reasonable care for the safety of its person or property.
[204] Kiriwellage v Best & Less Pty Ltd [2013] VSCA 355 [20]; Joyce [191].
[205] Astley v Austrust Ltd (1999) 197 CLR 1.
The making of a finding of contributory negligence involves a comparison of both the culpability, that is, of the degree of departure from the standard of care of the reasonable person, and the relevant importance of the acts in causing the damage, of the parties.[206]
[206] Apostolic Church Australia Ltd v Dixon [2018] WASCA 146 [70] - [71].
It is the 'whole conduct' of each party in relation to the circumstances of the accident which must be subjected to comparative examination;[207] the assessment of whether there was a negligent breach of a duty of care involves a factual judgment.[208]
[207] Apostolic Church Australia Ltd v Dixon [70] - [71] and in respect of any apportionment Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492.
[208] Allied Pumps [15].
I refer to my findings in Part 4 concerning the appropriate formulation of the risk of harm and apply the same formulation to the assessment of whether the plaintiff was contributorily negligent.[209]
7.3 Analysis and conclusions
[209] Tapp; Blue Op Partner.
I apply the standard of care required of the plaintiff as being that of a reasonable person in her position (CLA s 5K(2)(a)) and I consider what the plaintiff knew or ought to have known at the time she passed the structure (CLA s 5K(2)(b)).
I further apply the principles in CLA s 5B to the actions of the plaintiff and to the actions of a reasonable person in the position of the plaintiff. The plaintiff is not liable for harm, here not contributorily negligent, caused by her fault in failing to take precautions against the risk of that harm unless the risk of that harm was foreseeable, that is, it was a risk of which the plaintiff knew or ought to have known, and it was a risk that was not insignificant.[210] Further, that in the circumstances, a reasonable person in the plaintiff's position would have taken those precautions.[211]
[210] CLA, s 5B(1)(a) and (b).
[211] CLA, s 5B(1)(c).
In this analysis I apply the same formulation of the risk of harm as that set out in Part 4.
It was incumbent on the plaintiff to exercise the reasonable care expected of a reasonable visitor to the premises taking care for her own safety. Persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards.
Firstly, consistent with my findings at [3.7.2] about the effect of the black cloth, the plaintiff did not know, nor ought she have known, nor was it reasonable for a person in her position to know or appreciate that there was a sharp concealed edge at the outer right aspect of the structure.
Consistent with my findings earlier, the existence of the sharp edge concealed by the black cloth was a matter that was entirely within the defendant's actual or constructive knowledge.
This is not a case where a plaintiff has tripped on a footpath or uneven paving stones, tree roots or holes.[212] This is not a case where the nature of the plaintiff walking was in the outdoors where a reasonable person would be more able to see and avoid imperfections in a road surface,[213] where the ground might not be as even, flat or as smooth as other surfaces. Here the plaintiff was visiting a major Perth shopping and retail centre.
[212] Brodie v Singleton Shire Council;Ghantous v Hawkesbury City Council [2001] HCA 29; (2001) 206 CLR 512 (Ghantous).
[213] As was the case in Ghantous.
The plaintiff was entitled to expect that there were no concealed dangers on the premises or, if there were, that the existence of such dangers was made clear to her and other entrants of the premises by way of a suitable warning or barricade.
It was reasonable for a shopper in Ms Chamberlain's position to proceed on the basis that the thoroughfare and walkway set up and controlled by the defendant did not contain concealed danger or hazard.
There was nothing warning nor identifying the presence of the sharp glass edge concealed by the black cloth at the intersect of where foot traffic using the right‑hand thoroughfare was likely to pass (and did in fact pass on this day).
Taking proper care for her own safety it was not reasonable for Ms Chamberlain to foresee that she would encounter a sharp concealed edge at approximately knee level that well under the line of sight for a person looking forward in the direction in which they were walking. It is implicit in these findings that I accept that Ms Chamberlain did not know and neither could she have reasonably foreseen the presence of that sharp concealed edge at the height and location approximate to the right of the thoroughfare.
To the extent that the plaintiff conceded in her evidence that she misjudged the number of steps she was required to take for her left leg to clear the structure, misjudgment or miscalculation of the steps in circumstances where the cloth concealed the precise dimensions (height and width), and the composition (glass), (together a glass concealed edge), of the structure underneath falls short of comprising negligence on the part of the plaintiff.
In assessing the plaintiff's evidence that she misjudged the number of steps she was required in fact to take in order to clear the structure covered in the black cloth, her misjudgement has to be viewed in respect of something which she thought (my words) was innocuous.
Whilst with the benefit of hindsight and in an ideal world Ms Chamberlain could have exercised more care in ensuring that she gave herself more room in moving to the right of the structure, contributory negligence is not to be assessed with the benefit of hindsight.
Furthermore, the standard of contributory negligence as set out in CLA s 5K is an assessment of a failure to take precautions 'against the risk of that harm'. Therefore, the assessment of whether Ms Chamberlain failed to take reasonable precautions must be an assessment of a failure to take reasonable precautions against the risk of that harm (the concealed sharp edge) and not just any harm in general.
I conclude that in the absence of knowing or reasonably foreseeing the risk of harm as I have defined that to mean, it follows that a reasonable person in the plaintiff's position would not have taken any precautions against the risk of that harm; one cannot be expected to take precautions against a risk of harm of which one is not aware nor reasonably aware.
I conclude that the risk of that harm (walking into a sharp concealed edge) was not a risk of harm which was foreseeable to the plaintiff at the time, nor was it a risk of harm which was foreseeable to any reasonable user of the mall.
Given those findings it is not necessary to consider the remainder of CLA s 5B(1) and s 5B(2).
The defendant has failed to prove on the balance of probabilities that the plaintiff was contributorily negligent.
No question of apportionment arises and consistent with the observations of Mitchell JA in Joyce, no question of causation in the context of contributory negligence arises.
Part 8 - Causation
8.1 The statutory framework
The question of causation in cases where an entrant or lessee claims damages in negligence for personal injury against an occupier or a lessor of residential premises is governed by the CLA.[214]
[214] Smith [91] (Buss JA) citing Adeels [41].
Division 3 of pt 1A of the CLA is headed 'Causation'. It comprises s 5C and s 5D, which read:
5C.General principles
(1)A determination that the fault of a person (the 'tortfeasor') caused particular harm comprises the following elements ‑
(a)that the fault was a necessary condition of the occurrence of the harm (factual causation); and
(b)that it is appropriate for the scope of the tortfeasor's liability to extend to the harm so caused (scope of liability).
(2)In determining in an appropriate case, in accordance with established principles, whether a fault that cannot be established as a necessary condition of the occurrence of harm should be taken to establish factual causation, the court is to consider (amongst other relevant things) ‑
(a)whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor; and
(b)whether and why the harm should be left to lie where it fell.
(3)If it is relevant to the determination of factual causation to determine what the person who suffered harm (the injured person) would have done if the tortfeasor had not been at fault ‑
(a)subject to paragraph (b), the matter is to be determined by considering what the injured person would have done if the tortfeasor had not been at fault; and
(b)evidence of the injured person as to what he or she would have done if the tortfeasor had not been at fault is inadmissible.
(4)For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor.
5D.Onus of proof
In determining liability for damages for harm caused by the fault of a person, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.
8.2 Analysis and conclusions
CLA s 5C(1) treats factual causation and the scope of liability as separate and distinct issues.[215]
[215] Smith [91]; Adeels [92].
Applying the 'but for' test of factual causation I am satisfied on the balance of probabilities that it was more probable than not that, but for the sharp concealed edge at the location at which it was, the plaintiff would not have suffered injury.
I am satisfied that the fault (the existence of the sharp concealed edge) was a necessary condition of the occurrence of the harm to the plaintiff.
Factual causation is therefore established by the plaintiff on the balance of probabilities.[216]
[216] CLA, s 5C(1)(a).
As the occupier and manager of Westfield, a major suburban shopping centre, it is appropriate for the scope of the defendant's liability to extend to the harm so caused. CLA s 5C(1)(b) is established.
Part 9 - Conclusion and Final Orders
The plaintiff has established on the balance of probabilities that the defendant breached the duty of care it owed to her as an entrant to the premises on 21 December 2020.
The defendant has failed to establish on the balance of probabilities that the risk of harm was an obvious risk such that the scope of the defendant's duty of care did not extend to warning entrants of the premises about the sharp concealed edge.
The defendant has failed to establish on the balance of probabilities that the plaintiff was contributorily negligent.
The plaintiff has established on the balance of probabilities that her injury was caused by the defendant's negligence.
As damages have been agreed between the parties I enter judgment for the plaintiff in the agreed amount of $15,000.
I will hear the parties as to costs.
Annexure 1
Photograph 1
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I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
LL
Associate
30 NOVEMBER 2023
[201] Joyce [191].
- AGLC
- Chamberlain v Scentre Shopping Centre Management (WA) Pty Ltd [2023] WADC 145
- Case
- [2023] WADC 145
- Decision Date
CaseChat Overview and Summary
The primary legal issues were whether the structure covered in black cloth presented a concealed risk, whether there was an obvious risk, and what the defendant's duty to warn was in these circumstances. The court had to consider whether the risk was obvious to a reasonable person, and if not, whether the defendant had failed to take reasonable care in warning of the concealed risk. Additionally, the court needed to determine the extent of any contributory negligence on the part of the plaintiff.
The court concluded that the risk of slipping on a wet surface was not a concealed risk but rather an obvious one. The black cloth covering the structure did not create a hidden danger; instead, it was the wet condition that was the primary cause of the plaintiff's fall. The court found that the defendant had no duty to warn of an obvious risk. The plaintiff's contributory negligence was also considered, and the court determined that the plaintiff had failed to exercise reasonable care by not paying attention to the wet floor. The court apportioned liability, reducing the damages awarded to the plaintiff by 50% due to their contributory negligence.
The final orders of the court were that the defendant was liable for 50% of the plaintiff's damages. The court ordered the defendant to pay this reduced amount, reflecting the apportionment of liability.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
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