Garzo v Liverpool/Campbelltown Christian School Ltd
[2011] NSWSC 292
•15 April 2011
Supreme Court
New South Wales
Medium Neutral Citation: Garzo v Liverpool/Campbelltown Christian School Limited & Anor [2011] NSWSC 292 Decision date: 15 April 2011 Jurisdiction: Common Law Before: Garling J Decision: (1) Judgment for the first and second defendants on the plaintiff's claim.
(2) Plaintiff to pay the defendants' costs of the proceedings.
(3) Judgment for each cross-defendant on each of the cross-claims.
(4) Liberty to apply in respect of order (2) within seven days, by notification to my associate.
Catchwords: NEGLIGENCE - Duty of care - Accident occurred in a school in which there were internal roads and pedestrian crossings - Maintenance contractor engaged by the school to paint pedestrian crossings - Plaintiff slipped and fell on a painted strip of a pedestrian crossing
NEGLIGENCE - Breach of duty - Proper pleading of a claim under s 5B of the Civil Liability Act - Identification of a risk of harm - Foreseeability - Whether defendant had actual or constructive knowledge of the risk of harm - Whether risk of harm was not insignificant - The precautions which the plaintiff says a reasonable person in the defendants' position would have taken in the circumstances - Whether part of the crossing had been more recently repainted - Whether the slip resistance of the crossing was below recommended standards - Whether the slip resistance of the crossing was insufficiently uniform - Whether a reasonable person in the position of the school or the maintenance contractor would have sourced a different paint for use on the crossing
NEGLIGENCE - Causation - The test under s 5D of the Civil Liability Act 2002 - Many potential causes of a slip and fall - Whether the plaintiff has established that the lack of slip resistance of the crossing caused her injury
DAMAGES - Assessment of damages for personal injury - The extent to which the plaintiff utilised her earning capacity prior to the accident - Difficulties with assessing future economic loss - Damages for loss of capacity to provide domestic services - Where plaintiff has a disabled childLegislation Cited: Civil Liability Act 2002
Evidence Act 1995
Law Reform (Miscellaneous Provisions) Act 1946Cases Cited: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420
Amaca Pty Limited v Ellis (2010) 240 CLR 111
Amaca Pty Ltd v Novek [2009] NSWCA 50
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
Benic v State of New South Wales [2010] NSWSC 1039
Bostik Australia Pty Ltd v Liddiard & Anor [2009] NSWCA 167
Drinkwater v Howarth [2006] NSWCA 222
Erwin v Iveco Trucks Australia (2010) 267 ALR 752
Ghantous v Hawkesbury City Council (2001) 206 CLR 512
Jones v Bartlett (2000) 205 CLR 166
Kempsey Shire Council v Baguley [2010] NSWCA 284
Liverpool City Council v Lasker [2010] NSWCA 52
Rhodes v Lake Macquarie City Council [2010] NSWCA 235
RTA v Dederer (2007) 234 CLR 330
RTA v Refrigerated Roadways [2009] NSWCA 263
Shaw v Thomas [2010] NSWCA 169
Stojan (No. 9) Pty Ltd v Kenway [2009] NSWCA 364
Waverley Council v Ferreira [2005] NSWCA 418
Wilkinson v Law Courts Limited [2001] NSWCA 196
Wilson v Nilepac Pty Ltd ([2011) ] NSWCA 63
Zanner v Zanner [2010] NSWCA 343Category: Principal judgment Parties: Antoinette Paula Garzo (P)
Liverpool/Campbelltown Christian School Limited (D1)
T&J Turner Building Services Pty Ltd (D2)Representation: Counsel:
S. Norton SC with M. Daley (P)
P.A. Horvath (D1)
R. Gambi (D2)
Solicitors:
Brydens (P)
Lee & Lyons (D1)
Gadens (D2)
File Number(s): 2009/297310
Judgment
On the evening of 27 November 2007, Mrs Antoinette Garzo, together with her husband and children, attended a concert at the William Carey Christian School at Prestons. Her children were students at the school.
After the concert, she started walking back to her car to go home. She crossed a road in the grounds of the school where there was a marked pedestrian crossing. As she did so, she fell and suffered quite serious injuries to her face, damaging a number of her teeth. She also fractured her right elbow.
She claims that both the first defendant, Liverpool/Campbelltown Christian School Limited, which is the proprietor of the William Carey Christian School, and the second defendant, T&J Turner Building Services Pty Limited, which is the maintenance contractor for the school, were negligent. She claims that their negligence caused her to fall and to suffer her personal injury.
Both the school and the maintenance contractor accept that Mrs Garzo fell and injured herself, but they deny that they were negligent. They also deny that her fall was caused by anything they did or did not do.
For the reasons which follow, I have decided that Mrs Garzo has not made out her claim that the defendants were negligent. I have also decided that she has not made out her claim that her personal injury was caused by anything they did or did not do.
The School
William Carey Christian School was located at Prestons in the south-west of Sydney. The school had been in existence since the 1980s and provided education for students from kindergarten through to year 12. Children attending the school were aged between about 5 years and 18 years old.
At the time of Mrs Garzo's accident, there were about 1400 students at the school. For about 15 years prior to her accident, the number of students had been in excess of 1200.
The main entrance to the school was from Bumbera Street, Preston, along a road into the school grounds. On either side of the main entrance were carparks the surface of which were asphalt. The roadways within the school were also covered in asphalt.
The evidence about the general usage of the school entrance and carpark area was that in the morning of a school day, students who were delivered to school would be dropped off from vehicles which were in one or other of those two carparks. Before the student body arrived, members of staff would use the carpark to temporarily stop their cars whilst collecting mail from the main reception office, and then proceed along the internal roads to the staff carpark. Parents and other visitors would also commonly use the carpark if they visited during the day, and also to collect their children in the afternoon after school.
The pedestrian crossing in question travelled across the roadway which led from the northern carpark near to the main entrance to the staff carpark. The pedestrian crossing was the most convenient route for people walking from within the school grounds, and particularly the main front office, to the northern carpark.
All of the carparks and roadways in the school grounds, as well as some of the pathways, were uncovered and were open to the weather and the elements.
It was clear from the evidence that during the school week these areas were very busy, with students, staff, parents and visitors using them throughout the day.
The Pedestrian Crossing
The pedestrian crossing upon which Mrs Garzo fell was first painted in mid 2005 at a time when the northern carpark was reconstructed and upgraded.
The roadway across which the pedestrian crossing travelled was a kerbed and guttered road with a reasonably smooth asphalt covering. It was a road of sufficient width for two lanes of traffic, one in each direction.
The pedestrian crossing consisted of five horizontal white painted strips bordered by two vertical lines along the extremities of each of those strips. The dimensions of the crossing were:
(a)
Length of crossing from kerb to kerb
5.8 metres
(b)
Length of crossing from side to side
1.9 metres
(c)
Width of each painted strip
450mm
(d)
Width of asphalt surface between each painted strip
550mm
It was in all respects an entirely unremarkable pedestrian crossing. It was of a kind that is commonly seen throughout Sydney. It was of dimensions regularly seen in pedestrian crossings.
The pedestrian crossing was painted by Mr Turner, the proprietor and principal employee of the second defendant, Turner Building Services. Mr Turner first painted the crossing in 2005 using a white paint called Rocol Easyline Paint, which he obtained from the maintenance store shed at the school.
The paint had been in use for many years at the school, since at least 1992, not only for pedestrian crossings, but also for line and directional markings on roadways, markings delineating carparks and line markings for netball and basketball courts in the school.
The paint was a proprietary product which Mr Turner obtained, on the school's account, from a hardware company called Blackwoods Industries at Smithfield.
In July 2007, Mr Turner again painted the pedestrian crossing. He did this by placing the can of paint into an applicator machine, and then painting lines which represented the outside boundaries of each of the horizontal white strips. Once he had done this he then disengaged the can from the applicator and, by hand, sprayed the crossing between the lines which he had marked out.
In July 2007, he sprayed all of the crossing at the one time. Mr Turner accepted that although he attempted to get an even surface when he used the paint by hand, he could not guarantee that he thereby achieved a precisely even coat of paint.
In particular, he agreed that when he was repainting the crossing in 2007, because he did not remove all of the paint that had been there from 2005, and the paint had worn unevenly, it was entirely possible that the paint applied by him in 2007 would not have resulted in a precisely even surface.
There is an issue of fact which is in dispute between the parties about whether there was any additional painting carried out on the crossing after July 2007 and prior to Mrs Garzo's fall in November 2007. I discuss and resolve that dispute later in this judgment.
The Accident
On the evening of 27 November 2007, Mrs Garzo attended with her husband, Mr Francesco Garzo, and their four children at a piano recital concert at the school. Her daughter, Mary, who was at that stage about five and a half years old, was involved in a piano recital. During the course of the recital which lasted about 2 hours, there had been some drizzling rain.
After the recital concluded, Mrs Garzo, with her husband and all four children who were then aged between ten years and three and a half years, were walking back to their car, which was parked in the northern of the two carparks near the main entrance.
The youngest child, Stephen, was in a pram which was being pushed by Mr Garzo. The other children were near Mr Garzo.
Mrs Garzo, who was wearing wedged shoes that had a flat bottom with a raise at the heel of about 2cm to 3cm, walked across the pedestrian crossing. It was during a period of daylight saving, and accordingly it was still daylight. Although there had been drizzling rain during the concert, it was not actually raining at the time Mrs Garzo walked across the pedestrian crossing.
She describes her fall in this way (Ex A, para 42):
"42. As I was crossing the crossing from the school end of the crossing towards the carpark end of the crossing my feet slipped from underneath me and I fell forward heavily. I had almost crossed the entire crossing and was about to reach the point where I would need to step up onto the gutter when the slip occurred.
43. I was walking carefully. I was keeping a good look out. I was walking at a normal pace. I was not carrying anything. My handbag was on the pram being pushed by my husband.
44. Everything happened very quickly. My feet just suddenly lost traction and went out from underneath me. My foot slipped behind me as I was preparing to take my next step with my other foot. I lost balance and fell.
45. At the point where my feet slipped they were on the last of the painted sections of the crossing before the gutter. It was very slippery. I did not have any opportunity to regain my balance before I fell."
Mr Garzo, who was walking behind his wife, but along the roadway and not on the pedestrian crossing, said this (Ex H, p 17):
"My wife had almost finished crossing the crossing. She was walking on the white strips of the crossing and all of a sudden her feet slipped backwards from underneath her. She fell heavily and her face smashed against the gutter that was nearby at the end of the crossing."
In cross-examination, Mr Garzo agreed that he could not recall whether one or both of his wife's feet were on the painted part of the crossing, nor could he recall which foot slipped, or which was the leading foot at the time. He did say that when he had a look at the crossing after his wife's fall, he saw that the crossing was wet.
Mrs Garzo's evidence made it clear that she did not observe the state of the crossing at or before the time she fell.
However, one issue that needs to be teased out from Mr Garzo's evidence is the degree to which the crossing was wet.
The meteorological evidence tendered by Turner Building Services (Ex 12) suggested that little or no rain had been measured as having fallen at nearby measurement stations during 27 November 2007. The nearest meteorological observations were taken at a location about 5kms in a direct line to the north west of the school. The observations recorded that in the 24 hours up to 9am on 27 November 2007, 10.4mm of rainfall was recorded. In the next 24 hours, up to 9am on 28 November 2007, which would include the time of Mrs Garzo's fall, 1mm of rain was recorded as having fallen.
These readings, which I am satisfied would be likely to reflect the conditions at the school, corroborate to some extent the evidence of Mrs Garzo about the amount of rain. These readings suggest that in the relevant period the rain was only light and only a small amount had fallen.
The evidence from Mrs Garzo was that there had been some rain during the school concert, but that it was not raining at the time Mrs Garzo fell. Mrs Garzo said that it had been drizzling during the recital. In cross-examination she agreed that there had been "... a very, very little amount of rain " during that day.
Whilst I accept Mr Garzo's description of the crossing surface as wet, I am satisfied that the extent or degree of wetness was very low. The crossing was wet or damp from earlier drizzle, which I find must have been quite light having regard to Mrs Garzo's evidence that there had only been a small amount of rain, and having regard to the meteorological recordings.
My finding is consistent with the absence, in the contemporaneous records (Ex 4) of the school which note the complaint of Mr Garzo that the wrong paint had been used on the crossing, of any mention or description of the crossing being wet, at all, let alone to a significant degree.
To make the findings plain, at the time of Mrs Garzo's fall:
(a) it was not raining or drizzling;
(b) the crossing was slightly wet or damp from previous quite light drizzle; and
(c) there was no free water, or loose water, lying on the crossing.
The Pleaded Claim and Defences
In her amended statement of claim, filed on 13 August 2009, Mrs Garzo said that the school and Turner Building Services each owed her a duty of care, which they breached.
She set out her allegations of breach of duty by the school in this way (I have omitted those that are otiose):
"8. ...
c. Providing a pedestrian crossing which was extremely slippery particularly when wet;
d. Failing to ensure that the pedestrian crossing was surfaced with non slip paint or other material;
e. Failing to warn or adequately warn the plaintiff that the said pedestrian crossing was extremely slippery particularly when wet.
f. Painting or allowing to be painted one particular section of the crossing in with paint which was not anti-slip and which had no anti-slip properties.
g. Allowing to be present on one section of the painted crossing an area which had good slip resistance for pedestrians which area was immediately adjacent and partly covered by another area which was extremely slippery.
h. Failing to warn or adequately warn the Plaintiff that when traversing the said crossing part of one particular stripe thereof was particularly slippery when compared to the area immediately adjacent thereto.
i. Failing to ensure that the while painted crossing was only touched up with suitable paint."
She also made these allegations of breach of duty against Turner Building Services:
"12. ...
b. Failure to seek or obtain advice or recommendations concerning the appropriate spray paint for use on pedestrian crossings.
c. Failing to use an appropriate type of paint for the surface of pedestrian crossings.
d. Failing to provide maintenance services with all due care, skill and diligence in a safe and proper manner.
e. Failing to ensure that the school premises, including the pedestrian crossing, was safe for persons to use.
..."
I note that in addition to these particulars, Mrs Garzo repeated against Turner Building Services all of the allegations made against the school.
I also note that she made an additional allegation in subparagraph 12(f) that Turner Building Services had failed " ... to take any or any adequate or reasonable steps to prevent injury ". Expressed in this way, I do not regard this as anything other than a statement of a breach of duty. It is not a particular of something which was or was not done, or else ought to have been done. It has no role to play as a particular of a breach of duty.
The school admitted that it owed a duty to Mrs Garzo but denied that it had been in breach of that duty. It put in issue the various allegations of breach in the amended statement of claim.
The school also, by reference to various of the provisions of the Civil Liability Act 2002, pleaded:
(a) that the relevant risk of harm was not foreseeable, was insignificant and not one against which precautions needed to be taken: s 5B(1);
(b) that the probability of any harm occurring was so low that a reasonable person would not have taken precautions: s 5B(2);
(c) that there was no relevant causal link of the kind required by s 5D.
Finally, the school pleaded that Mrs Garzo had failed to take reasonable care for her own well being and was guilty of contributory negligence.
Turner Building Services admitted that it was under a duty of care to Mrs Garzo, but denied that it was in breach of that duty. It put in issue the various allegations of breach.
In addition, it relied on a number of the provisions of the Civil Liability Act in these terms:
(a) Mrs Garzo's contributory negligence was of the order of 100 percent with the result that her claim would be defeated: s 5S;
(b) the cause of Mrs Garzo's fall was the materialisation of an obvious risk and accordingly no duty of care was owed: s 5H; and
(c) the cause of Mrs Garzo's fall was the materialisation of an inherent risk and accordingly no duty of care was owed: s 5I.
In their final submissions, each of the defendants essentially maintained their pleaded defences, except that both of the defendants abandoned the following claims:
(a) that the risk of the fall was an obvious one (s 5H of the Civil Liability Act );
(b) that the risk of the fall was the materialisation of an inherent risk (s 5I of the Civil Liability Act ); and
(c) that there had been any contributory negligence on the part of Mrs Garzo (s 5R of the Civil Liability Act ).
Duty of Care
As a duty of care has been conceded on the pleadings, it is only necessary to state briefly the nature and content of that duty.
The school, as an occupier, owed Mrs Garzo a duty to take such care as was reasonable in the circumstances. What is reasonable will vary with the circumstances of Mrs Garzo's entry upon the premises: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 487-488 per Mason, Wilson, Deane and Dawson JJ; Stojan (No. 9) Pty Ltd v Kenway [2009] NSWCA 364 at [89] per McColl JA, Ipp and Basten JJA agreeing.
The duty of an occupier is not to make the premises as safe as "reasonable care and skill on the part of anyone can make them": Jones v Bartlett (2000) 205 CLR 166 at [92] per McHugh J; Wilkinson v Law Courts Limited [2001] NSWCA 196 at [21] per Heydon JA (with whom Meagher JA and Rolfe AJA agreed).
The maintenance contractor owed what can be described as a conventional duty, namely, to take such care as was reasonable in the circumstances, by its act or omission, to avoid causing harm to Mrs Garzo.
Breach of Duty
An analysis of the legal requirements for a plaintiff to establish the breach of a duty of care must, in NSW, commence with the Civil Liability Act . It is important to remember that the Civil Liability Act was not intended to be a complete code, but rather that it is a piece of legislation which exists in the context of the tort of negligence and the common law of negligence which has developed over time: RTA v Refrigerated Roadways [2009] NSWCA 263 at [173] per Campbell JA (McColl JA agreeing).
The relevant provisions of the Civil Liability Act are sections 5B and 5C. Although they appear beneath the heading "Duty of Care", they are clearly directed to questions of breach of duty: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 at [13].
They are in the following form:
" 5B General principles
(1) A person is not negligent 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.
(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.
5C Other principles
In proceedings relating to liability for negligence:
(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and
(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and
(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk."
There are a number of separate steps which a plaintiff must take to establish a breach of duty under the Civil Liability Act . The statute requires that at trial the judge must be satisfied that each of the elements in s 5B(1) are made out before a finding of a breach of duty can be made: Refrigerated Roadways at [442]-[444] per Sackville AJA.
Little assistance in undertaking the essential analysis about breach of duty can be obtained from the pleadings. On this subject, the amended statement of claim pleads, in a manner which would be conventional for claims brought before the introduction of the Civil Liability Act but not in an appropriate manner for claims which postdate the Act, various "breaches of duty".
But in a claim in negligence to which the Civil Liability Act applies, it is necessary that the pleading identifies and articulates the material facts upon which the plaintiff relies to establish each of the elements required by s 5B(1).
As a starting point, a proper pleading of a claim requires the plaintiff to identify, and articulate clearly the "risk of harm" in respect of which, it is alleged, the defendant was obliged to take precautions. This puts a Court in a position to determine the defendant's knowledge of a specified risk of harm, to assess the probability of that risk occurring, and to evaluate the reasonableness of the defendant's response, or lack of response, to that risk, thereby avoiding the type of error discussed by Gummow J in RTA v Dederer (2007) 234 CLR 330 at [59]-[61].
A proper pleading will also need to plead whether it is part of the plaintiff's case that the defendant had actual knowledge of the risk of harm, and that the risk was thereby foreseeable (s 5B(1)(a)), or whether the plaintiff only contends that the defendant ought to have known of the risk of harm. Particulars of such a pleading would then ordinarily be provided. A defendant would then be in a position to fully plead to such allegation.
Authorities suggest that there may be cases where, at least arguably, s 5B may not apply: see Drinkwater v Howarth [2006] NSWCA 222 at [11]-[13]; Refrigerated Roadways at [173]. It is unnecessary for me to express any view in this case as to a resolution of the apparent tension between these remarks and the judgment of the High Court of Australia in Adeels Palace at [27], because this case is one to which s 5B clearly applies, as all the parties accepted.
Identifying the Relevant Risk of Harm
A central concept and one with which the analysis commences is the identification of "a risk of harm" against which the plaintiff, here Mrs Garzo, alleges a defendant would be negligent for failing to take precautions. Harm in this expression includes personal injury. Gummow J, in Dederer at [59]-[61] clearly demonstrates that it is only through the correct identification of the risk of harm that an assessment of the reasonable response can be made.
As a real and practical matter, where a Court is considering any of the essential steps in s 5B(1), it must do so against the identified risk of harm. It is a matter of common experience in common law claims, that in any given set of factual circumstances, there are a number of risks of harm which can be identified. Unless the risk of harm being relied upon is clearly identified then it will not be possible to identify what steps ought reasonably to have been taken by a defendant to address the risk. Nor will it be possible for a Court to determine what the application of reasonable care required.
In addressing this issue, Ms Norton, senior counsel for Mrs Garzo, submitted that the risk of harm was "... the risk of a person, such as the plaintiff, slipping on the painted surface and suffering personal injury ..." (T345.25ff).
That definition of the risk in this case assumes, without saying so explicitly, so it seems to me, that the crossing is in the state it was at the time of Mrs Garzo's fall. It may be expressed more correctly in this way:
"The risk of a person, such as the plaintiff, when using the particular pedestrian crossing by walking normally, in its then condition, slipping on the painted surface and suffering personal injury."
Section 5B(1)(a) - Actual or Constructive Knowledge
The first element that a plaintiff must establish is that the risk of harm was foreseeable to the defendants. Foreseeability is described in the Civil Liability Act differently from the traditional common law description of something which "... is not far fetched or fanciful ".
For a risk of harm to be one that is foreseeable in accordance with the statute, a plaintiff must establish either actual knowledge in the defendant of the risk of harm, or else constructive knowledge, ie, that the defendant ought to have known of the risk of harm.
Ms Norton argued Mrs Garzo's case on the basis that the risk of harm was foreseeable, in terms required by s 5B(1)(a), because each of the defendants ought to have known of it. She did not contend that they had actual knowledge of it.
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.
One good example of the need to avoid the use of hindsight in the present case is the knowledge of the test results obtained by the various experts at various times. It is clear beyond argument that at no time prior to Mrs Garzo's fall did the defendants have access to any test results about the state of the crossing. It would be wrong to take into account those results when considering whether either of the defendants ought to have known of the relevant risk of harm.
With these remarks in mind, it is appropriate to examine the evidence about the crossing to see if the defendants ought to have known of the risk of harm.
The expert engineers, Mr Neil Adams and Mr Warwick Kiernan, agreed when giving concurrent oral evidence that it would not have been visually obvious to a reasonable person walking normally in the relevant circumstances at the time of Mrs Garzo's fall, that the crossing would be potentially hazardous.
The experts were asked a similar question with respect to observations from the perspective of the occupiers, namely the school staff, or else the maintenance staff. Mr Adams found it difficult to answer that question saying:
"Well it is difficult to say. I think when the crossing is new certainly, and that possibility would diminish if the surface wore over time. So the further away you get out from the time of painting, the less likely it would be that someone at the School would identify that this was a surface that should be modified."
Mr Kiernan had a firmer view. He said:
"Well, when I went to the site and looked at the crossing I think you could safely say it was unremarkable. Very typical. And I wouldn't expect any reasonable person to have expected a problem with that crossing."
Given the relative terms in which Mr Adams expressed his view, and because there had been an elapse of five months or so from when the crossing was painted to the day of Mrs Garzo's fall, I do not detect in his evidence the expression of any reason why, or else any physical feature of the crossing which would justify a conclusion different from that of Mr Kiernan. I accept Mr Kiernan's evidence on this issue.
The photographs which were tendered in evidence do not suggest anything untoward about the appearance of the crossing such as would take it out of the ordinary for a pedestrian crossing of a kind seen throughout the metropolitan area of Sydney.
The school had in place a system by which accidents involving students, staff and visitors to the premises were reported. Ms Allchin, whose duties at the school included occupational, health and safety matters, gave evidence. It was she who, having heard of the accident, commenced an investigation to determine the state of the crossing.
Ms Allchin said that since 2002, which was the inception of the school's current occupational health and safety system, there was no record of any other accident on the pedestrian crossing having happened prior to Mrs Garzo's fall. Similarly, there was no other record of any other accident on other surfaces in the school grounds upon which Easyline Paint had been used.
She agreed in cross-examination that the system which was in place made provision for a record to be taken of any report of any incident at the school which concerned either an injury, or else an incident which may have involved an injury. She was confident that had such an event occurred, she would have found out about it. She said that she had personally observed people walking in the rain across the pedestrian crossing, that she had never observed anyone slipping, and that whilst she herself had walked across the crossing on a number of occasions, she could not recall any incident in which she had slipped on the pedestrian crossing.
She agreed in cross-examination by senior counsel for Mrs Garzo that the reporting system and any investigations which she undertook were unlikely to have revealed any incidents where people lost their balance in the school grounds but were able to recover their balance and not injure themselves.
Both in her evidence in chief and in cross-examination, Ms Allchin described a typical school day, which involved quite extensive usage of the pedestrian crossing by parents and children who were both arriving at the school in the morning and leaving the school in the afternoon, and also by staff and visitors using the crossing throughout the day.
Mr Daniel Brooking, a security guard who was employed at the school from about the start of 2007 and onwards, gave evidence.
He corroborated the evidence of Ms Allchin that significant numbers of parents, children, staff and visitors used the crossing during the course of the school day.
Mr Brooking gave evidence that there were 49 car parking spaces in the areas of the carparks generally adjacent to the pedestrian crossing, about which description has previously been given. He gave evidence that in an afternoon the carparks would regularly fill and empty again so that in his estimation there would be about 100 cars in the northern part of the carpark during the course of an afternoon.
He said that in the whole of the time he had been working at the school, he had not witnessed an adult fall on the crossing. He said that he himself had walked across the pedestrian crossing on many times in both wet and dry conditions. He said he had never noticed anything of concern whatsoever about the pedestrian crossing.
He said that he may have noticed some children falling on the crossing, but these falls had not been reported because the children had not suffered any injury.
Mr Turner, who was the director and principal of Turner Building Services, the maintenance contractor, commenced working at the school in either 1995 or 1996. From the time of his commencement he performed general maintenance and handyman duties and has continued in that role ever since.
He said that throughout that time he had used Rocol Easyline Paint at the school. He said that on average each year about 40 cans of the paint were used throughout the school grounds. He said that the paint was used in carparks and on roadways, netball and basketball courts.
He said that throughout the time that he had been using the paint there had been no incidents and no problems with the paint in terms of anyone slipping on the paint and injuring themselves. He said that he had personally walked over the pedestrian crossing regularly, 3 or 4 times a week, and had never experienced any problem with it including when he had walked on it whilst it was wet. He said that no incident had been drawn to his attention with respect to the paint on the pedestrian crossing at any time prior to being notified of Mrs Garzo's fall.
Mr Turner participated in an inspection of the crossing within a few days after the report to the school of Mrs Garzo's fall. I recount the details of that examination later in this judgment. It is appropriate at this point, however, to note that I do not draw from the contemporaneous notes of this inspection any inference that within the painted strips, or else by reason of the juxtaposition of the asphalt of the painted strips, the crossing was slippery at the time of Mrs Garzo's fall. In short, there is nothing in this inspection which suggests that an observation of the crossing would have by itself and without more, revealed anything untoward about it.
The entirety of the evidence which I have just reviewed points convincingly to the following findings:
(a) The pedestrian crossing was of a typical kind regularly seen throughout the metropolitan area of Sydney, and had no unusual features;
(b) There was nothing visible on the pedestrian crossing that suggested it may have be particularly slippery;
(c) There was nothing visually obvious to a reasonable person walking normally across the pedestrian crossing that it would be potentially hazardous, in the sense that they might slip and fall;
(d) There was nothing about the pedestrian crossing which would have alerted either the school staff or the maintenance contractor to the existence of a potential hazard;
(e) There were no reported accidents on the crossing or on other areas of the school grounds where Easyline Paint had been used; and.
(f) Neither the school staff who gave evidence, nor Mr Turner, the principal of the maintenance contractor, had any difficulty when using the crossing in all forms of weather.
I accept that a mere calculation of the number of people who pass over this crossing in any given period of time is not of itself determinative of the issue of whether a risk of harm exists or is likely to fall in, nor can it be determinative of whether a defendant ought to have known of the risk of harm. However, it is one factor to which regard may be had: Kempsey Shire Council v Baguley [2010] NSWCA 284 at [32] per Sackville AJA (Campbell JA and Handley AJA agreeing).
In this case, that factor has particular significance. The numbers of people using the crossing each day was quite high. The range of ages of those people varied from very young children of about 5 years old, through to adults. There is likely to have been a considerable variation in the gross motor skills of those using the crossing. There would have been a considerable variety of gaits and footwear.
Because the crossing was an outside one, it was exposed to the full range of weather conditions, which means that it was likely that pedestrians would use the crossing during rainstorms, and whilst there was free water on the crossing. The complex mix of circumstances existed since the crossing was originally painted in 2005 and then immediately after it was repainted in 2007.
Thus, whether the paint on the crossing was newly applied or else had worn down, and whether the conditions were wet or dry, no one had slipped on the crossing and injured themselves.
Senior counsel for the plaintiff did not identify any specific factors which pre-existed Mrs Garzo's fall, from which an inference could be drawn that the defendants ought to have known of the risk of harm.
I have concluded that, within the terms of s 5B(1)(a), the risk of harm identified in this case was not a risk of which the school or the maintenance contractor ought to have known. Accordingly, the risk was not foreseeable and neither the school nor the maintenance contractor can be negligent.
Section 5B(1)(b) - "Not Insignificant"
Notwithstanding my conclusion in respect of s 5B(1)(a), it is appropriate that I consider the other matters referred to in s 5B(1).
The second step in the analysis required by s 5B is to determine whether the alleged risk of harm was "... not insignificant". This must be judged from the perspective of a person in the defendant's position, and in prospect not retrospect.
The phrase derives from the final report of the Review of the Law of Negligence ("the Ipp Report"), which was published in September 2002.
The Ipp Report, at para 7.15, described the recommended change from the common law phrase "... not far-fetched or fanciful" to the statutory test "... not insignificant" in the following way:
"The panel favours the phrase 'not insignificant'. The effect of this change would be that a person could be held liable for a failure to take precautions against a risk only if the risk was 'not insignificant'. The phrase 'not insignificant' is intended to indicate a risk that is of a higher probability than is indicated by the phrase 'not far fetched and fanciful', but not so high as might be indicated by a phrase such as 'a substantial risk'. The choice of double negative is deliberate. We do not intend the phrase to be a synonym for 'significant'. 'Significant' is apt to indicate a higher degree of probability than we intend."
Decisions of the Court of Appeal have considered this phrase but it has not yet been the subject of any comprehensive detailed analysis: See Waverley Council v Ferreira [2005] NSWCA 418 at [69] Ipp JA (Spigelman CJ and Tobias JA agreeing); Bostik Australia Pty Ltd v Liddiard & Anor [2009] NSWCA 167 at [92]ff per Beazley JA; Rhodes v Lake Macquarie City Council [2010] NSWCA 235 at [42] per Hodgson JA (Macfarlan JA and Handley AJA agreeing); Shaw v Thomas [2010] NSWCA 169 Macfarlan JA (Beazley and Tobias JJA agreeing).
I have in a previous decision after a review of a number of sources gathered together what seems to me to be the appropriate approach in interpreting the phrase "not insignificant". In Benic v State of New South Wales [2010] NSWSC 1039 at [101], I said:
"101 I will now attempt to draw together this variety of sources to state what approach, in my opinion, is the appropriate one to interpreting the phrase "not insignificant":
(a) The assessment of the risk of harm is one made in prospect and not retrospect. Hindsight has no part to play;
(b) The phrase is of a higher order than the common law test, and this was intended to limit liability being imposed too easily;
(c) The phrase 'not insignificant' is intended to refer to the probability of the occurrence of the risk;
(d) In the realm of tort law, the probability of an occurrence is both a quantitative measurement, which may, but does not necessarily reflect a statistical and numerical assessment, and also an evaluative measurement. The statutory phrase is a protean one which depends upon the context of facts, matters and circumstances for its meaning;
(e) Whether a risk is 'not insignificant' must be judged from the defendant's perspective and must be judged on a broader base than a mere reductionist mathematical formula."
I adhere to that approach and will apply it in this case.
Mrs Garzo submitted that the risk of harm was not insignificant, because large numbers of pedestrians of varying mobility were accustomed to using the crossing, at the direction or encouragement of the school, with the result that the risk of slipping would not be insignificant, particularly if the crossing, or a portion of it, was wet or slippery.
I do not accept this submission.
The fact that no-one, having regard to the extensive usage of the crossing, had previously fallen is not determinative. It is but one factor. As I have earlier said, what is important is that the crossing had been used in a range of weather conditions, and by a range of people of various ages from kindergarten age, ie, 5 years old, through to adult age.
The second matter is that pedestrian crossings of this kind are features commonly encountered in the course of daily life. Members of the public, including Mrs Garzo and other people who would use this crossing, are well used to walking over pedestrian crossings with painted strips. Even if one part of the crossing was marginally more slippery than another, there is no reason to think that a pedestrian walking at a normal pace could not or would not adjust their gait to cope with that sort of difference.
There was no obvious defect in the crossing in November 2007 at the time of Mrs Garzo's fall. It had been repainted relatively recently (July 2007), and had weathered over time reasonably evenly and as one might expect it to have done.
There had been no unusual external events, storms, road repairs, spillages of oil in the area of the crossing or the like, which meant that one might expect the crossing to be particularly dangerous.
The probability that the harm would occur was very low. If harm occurred, given that one is talking about pedestrians walking on the ground and that the risk was of them falling to the ground, the likely seriousness of the harm was in general terms low.
I accept that it is always possible that serious harm can occur in any accident when a person falls to the road. The history of cases before this Court is replete, both in criminal and civil cases, with examples of people falling to the ground and striking their head and sustaining serious brain injury, or in some cases dying. However, the mere possibility that there might be serious harm is not sufficient without more to fulfil the requirement of identification of the harm as being not insignificant.
In the circumstances of a person slipping whilst walking over a pedestrian crossing, even in wet weather, I am not satisfied that the likely seriousness of the harm was high. In fact, I think it is far more likely that people would suffer minor injuries, if any at all.
In short, I am not satisfied that the risk of harm in this case was one that can be described as "not insignificant". It did not reach that level or order of magnitude.
Section 5B(1)(c) - Reasonable Precautions
Notwithstanding my conclusions in respect of s 5B(1)(a) and (b), it is appropriate that I consider the remaining matter referred to in s 5B.
Section 5B(1)(c) requires an analysis of the conduct of a reasonable person, in all the circumstances of the case, when faced with the relevant risk of harm. This element, particularly when reference is had to s 5B(2) of the Civil Liability Act , closely reflects the common law: Refrigerated Roadways at [177] per Campbell JA.
Any consideration of this element requires attention to the provisions of s 5B(2). However, as the terms of the legislation make plain, s 5B(2) is not an exhaustive list of factors which a court is required to take into account in deciding if s 5B(1)(c) is made out: Refrigerated Roadways at [173] per Campbell JA, at [445] per Sackville AJA; Erwin v Iveco Trucks Australia (2010) 267 ALR 752 at [81] per Sackville AJA (Basten and Campbell JJA agreeing).
Originally, Mrs Garzo claimed in her pleadings that each of the defendants fell short, in many different ways, of the conduct expected of a reasonable person. However, after the conclusion of evidence, and in the course of final submissions, Mrs Garzo's claim became more refined.
In substance, Mrs Garzo submitted that, in all the circumstances, including the fact that the pedestrian crossing was exposed to wet weather, when faced with the risk of a person like herself slipping on its painted surface and suffering personal injury, the school and Turner Building Services should have taken the following precautions:
(a) Ensured that the painted surfaces of the pedestrian crossing were sufficiently uniform, so that a pedestrian would not be surprised by a more slippery part; and
(b) Ensured that the painted areas of the pedestrian crossing had a slip resistance of at least the "recommended standard", by at least, investigating the availability of, and using, a different type of paint.
She submitted that the defendants, in failing to take these precautions, fell short of the conduct of a reasonable person and were therefore negligent. It is necessary to consider each of these precautions in turn.
Precaution (a) - Uniformity of Slip Resistance
Two issues of fact fall to be considered under this subject. The first is whether the entire surface of the painted strips was applied at the same time, or whether a small area called by the experts "the area of interest" had been repainted shortly before Mrs Garzo's fall.
The second issue of fact is whether differential areas of wear on the painted strips, as exemplified by the testing results, were of such a kind that they were responsible for the fall and should have been remedied.
The first disputed question of fact was about the state of the painted surface of the pedestrian crossing at the time of Mrs Garzo's fall.
In her statement (Ex A, paragraph 129), Mrs Garzo recounted that on the day after her fall, when she returned to the school, she observed that:
"... the area where I slipped had brighter fresher looking paint than the rest of the paint on the pedestrian crossing. The paint in this area had not yet sunken in to the asphalt and formed a smooth surface above it. This area was very slippery ...".
In evidence, Mrs Garzo identified an area, depicted within a circle in Ex C, an enlarged photo of the pedestrian crossing, as the area where her foot slipped. In the photo, it can be plainly seen that there is an area of white paint which is apparently brighter than the other painted areas. This was consistent with the description given in Mrs Garzo's statement. At T24.43ff she gave evidence consistent with those observations.
The date when the photograph Ex C was taken is unclear, but it was at a point in time well after Mrs Garzo's fall.
In cross-examination, Mrs Garzo gave evidence that on a date after her fall, which, although unsure, she believed to be 11 December 2007, she took photos of the crossing on a mobile phone. Upon further cross-examination, she resiled from this evidence, saying that she had not personally taken the photos, but that her husband had done so. She agreed that she did not go to the school at all on 11 December 2007. I do not accept that Mrs Garzo took any photographs of the crossing on 11 December 2007.
Mr Garzo, in his statement (Ex H, paragraph 77) said that he observed the state of the pedestrian crossing on the day after his wife's fall. He said that at that time:
"I noticed an area that was brighter and appeared to be newer than the rest of the paint used on the crossing ... This brightened area was even slipperier than the other painted areas of the crossing. This brighter painted area seemed slipperier because it was flat over the asphalt rather than sunken in to the asphalt like the other areas of painting on the crossing."
In evidence, Mr Garzo said that he had taken two photographs of the pedestrian crossing on the mobile phone which he had been using "... around the time of the accident ", although subsequently the mobile phone was used by his son. The date or time when his son commenced to use the phone was not identified in evidence. The two photographs were tendered and became Ex J1 and Ex J2.
An inspection of those photographs shows that there is a small area of freshly painted white paint on the north western corner of the final painted strip before the northern kerb of the crossing. The photographs represent a close-up view of the area which Mrs Garzo identified with a circle on Ex C as the area where she fell. The photographs are also consistent with the descriptions given by Mrs Garzo in Ex A, and Mr Garzo in Ex H, and in their evidence which I have summarised above.
Mr Adams, an expert engineer retained by Mrs Garzo's solicitors, described the surface which he saw on 29 January 2009 in these terms in his report of 14 February 2009 (Ex F):
"I observed that, whereas each of the other strips comprised paint that incorporated a gritty, non-slip additive, the brighter section at the north western corner of the most northerly strip was relatively smooth."
The clear sense of this evidence, as presented on behalf of Mrs Garzo, was as follows:
(a) At the time of her fall, Mrs Garzo slipped on the area of brightly coloured paint depicted in Ex C, Ex J1 and Ex J2;
(b) The area was brightly coloured because, at the time of her fall, it was freshly painted, was at a level higher than the other painted areas, was more smooth, and was therefore more slippery than the other painted areas; and
(c) Both Mr and Mrs Garzo had observed the area of brightly coloured paint on the day after she fell, and the area was visible in the two photographs taken within a short time, probably 11 December 2007, after her fall.
However, this account of the state of the pedestrian crossing, as other evidence clearly demonstrates, is wholly inaccurate and quite unable to be accepted. I reject this account of the state of the pedestrian crossing given by Mr and Mrs Garzo. The reasons for this follow.
Mr Garzo, when pressed in cross-examination, agreed that, contrary to his earlier evidence, it could be correct to say that the photographs were taken on or about 10 March 2008, which was some three and a half or four months after Mrs Garzo's fall, rather than in December 2007, namely a few weeks after her fall.
Senior counsel for Mrs Garzo tendered two expert reports, both of which cast light upon this issue. The first, Ex F, which was the expert report of Mr Adams, contained this statement on p 5:
"Mrs Garzo advised me that she took photographs of that brighter area on her mobile phone on 10 March 2008 (see photographic annexure). I did not identify any other areas on the crossing where similarly brighter paint was present".
Clearly, at a time much closer to when the photographs were taken, Mrs Garzo gave an account quite at odds with the photographs being taken in December 2007.
Whilst I have held that Mrs Garzo did not take photographs of the crossing in December 2007, it is entirely feasible that she or her husband did so on 10 March 2008.
Mr Adams first inspected the pedestrian crossing on 29 January 2009.
The "photographic annexure" to which reference was made (see paragraph 136 above) appears at p 17 of the report of Mr Adams, Ex F. Except for the fact that one photograph is reproduced in an upside down view, the two photographs are identical to Ex J1 and Ex J2.
Senior counsel for Mrs Garzo also tendered the expert report of Kinetic Engineers dated 12 March 2008, which became Ex D. Mr Paul Stephenson, the author of this report, recorded that he visited the school on 6 March 2008 to inspect the pedestrian crossing. Whilst there he was provided with the leftover paint from when the pedestrian crossing had been painted in July 2007. He records that he completed a series of tests on various parts of the crossing. He then says at para 3.1.6:
"The writer utilised some of the remaining paint in the 'Easyline' spray can to reapply some paint to a small section of the crossing."
The report then includes, as photograph 3.1.6, a photo of the newly painted area. A careful comparison of this photograph with Ex J1 and Ex J2 satisfies me that they are photographs of one and the same area.
The contents of para 3.1.6 of the Kinetic Engineering report which was tendered as part of the Mrs Garzo's case were corroborated by the unchallenged evidence of Ms Leanne Allchin, who was called to give evidence for the school, that in about March 2008 she gave Mr Stephenson the paint and noted that he had painted a test patch on one section of the crossing (T198.4ff).
As well, Daniel Brooking, who was a security guard at the premises, gave evidence that in March 2008 an engineer visited the school. I am in no doubt that he was referring to the visit by Mr Stephenson. He gave evidence, which I accept, that after Mr Stephenson left the school, he observed that a small section of one of the white painted strips on the crossing had been freshly painted. He was not challenged on this evidence.
Mr Turner, who had spray painted the pedestrian crossing in July 2007, was shown Ex J1 and Ex J2. He denied that he had painted the brighter area shown in the photographs. He denied undertaking any further painting on the crossing after July 2007. He denied that the area of brighter painting was in existence at the time of Mrs Garzo's fall. He also gave evidence that he became aware of, and observed the brighter patch after a visit to the school of a gentleman who did some testing on the crossing in the earlier part of 2008. He was not cross-examined to suggest that this evidence was wrong.
The result of this review of the evidence on this disputed question of fact is that I am well satisfied that, at the time of Mrs Garzo's fall, the pedestrian crossing had not been the subject of any repainting at all after July 2007, and that the area of brighter paint shown in Ex J1 and Ex J2 was first painted in March 2008, after Mrs Garzo's fall. I am also well satisfied that the photographs Ex J1 and Ex J2 were taken on or about 10 March 2008, shortly after Mr Stephenson's visit on 6 March 2008. They do not represent the state of the pedestrian crossing at the time of Mrs Garzo's fall.
I find that, at the time of Mrs Garzo's fall, the pedestrian crossing had last been painted in July 2007, but had been subject to wear as a consequence of the passage of both vehicular and foot traffic, and also the effects of weathering in the six months or so after painting and before the fall. There was no fresh paint on the pedestrian crossing at that time. There was no significant lack of uniformity on the north western corner of the final painted strip.
As a result of this finding, in respect of the first part of this issue, there is no basis for a finding that there were any precautions which the defendants ought reasonably to have taken.
The second question to be determined as part of this issue was whether there were differential surfaces on the crossing caused by either the method of painting in July 2007, or else differential wear patterns.
It was submitted that I should infer from the description given by Mr Turner of the method of applying the paint in July 2007, and the variation in the results obtained when the crossing was subjected to testing, that there was an inadequate uniformity of slip resistance of the painted strips of the crossing.
Mr Turner gave evidence that his intention when applying the paint was to achieve a level and even surface. He accepted that he could not guarantee that the result was even. However, he said that when he had finished the surface looked fairly even. This evidence does not permit me to find, and I do not find that there was in fact unevenness at the end of the application of the paint. If there were any differences these were minor and not visually detectable.
There was some evidence given by Mr Turner (T287.35-T288.11) that the centre part of the crossing was more worn than other parts of the crossing, because the pattern of typical traffic usage was over the centre of the crossing. There was no evidence which suggested that any one part of one of the strips looked more worn than another adjacent part. There was no evidence that there had been detected any differential slip resistance on the painted strips by those using the crossing.
The possibility that some parts of the crossing may not have had a uniform slip resistance was not related by any evidence to that part of the crossing where the plaintiff said that she fell. The differential results obtained on testing may equally, so it seems to me, reflect as much the exigencies of the testing and measuring process as an actual lack of uniformity on the surface. After all, a number of swings of the pendulum are used, at any given location (typically five swings) in order to obtain a reasonably accurate result.
But importantly, given that the plaintiff did not identify the size and location of these areas of potential lack of uniformity, in fact, it cannot be said that a failure to take an identified precaution was unreasonable.
The remarks of Gleeson CJ in Ghantous v Hawkesbury City Council (2001) 206 CLR 512 at [6] and [7] are relevant here. His Honour said:
"6. In England, the common law rule which the applicants in both matters seek to challenge was abolished by statute in 1961. ... Even so, when general principles of negligence, unqualified by any rule of immunity, were applied, the courts insisted that an injured plaintiff had to show that the road or footpath was dangerous. That did not mean merely that it could possibly be an occasion of harm. The fact that there was unevenness of a kind which could result in a person stumbling or falling would not suffice. Not all footpaths are perfectly level. Many footpaths are unpaved. People are regularly required to walk on uneven surfaces on both public and private land.
7. In Littler v Liverpool Corporation , Cumming-Bruce J said:
'Uneven surfaces and differences in level between flagstones of about an inch may cause a pedestrian temporarily off balance to trip and stumble, but such characteristics have to be accepted. A highway is not to be criticised by the standards of a bowling green'."
This is assessed at 2 hours per day, amounting to 14 hours per week. The appropriate hourly rate is $33 per hour. I would not allow the claim for the entirety of Mrs Garzo's life.
Clearly, even if her accident had not occurred, Mrs Garzo would struggle once she turns 60 to care for her son who by that stage would be a little over 30 years of age.
I think it fair to assess that the level of care that she would otherwise provide at that stage would diminish and that effectively she would be unable to provide any care from age 65 onwards.
Accordingly the period for the future which I allow for care is a further 30 years.
The rounded calculation of this is $380,000, which seems to me to be a fair and just sum for compensation for this head of claim.
It is not appropriate to make further discount by way of vicissitudes from this figure.
In summary, had I been called upon to award damages, I would have awarded the following amounts:
(a)
Non economic loss
$175,500
(b)
Past economic loss
$27,470
(c)
Future economic loss
$128,562
(d)
Other damages
$47,528
(e)
Claim for s 15B damages with respect to Stephen
$380,000
Total
$759,060
Cross-Claim between Defendants
Each of the defendants cross-claimed against the other. The cross-claims were founded on s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946. Because I have found that both of the defendants were not negligent, and that they were not responsible for Mrs Garzo's injuries and disabilities, the cross-claims will be dismissed.
However, had I been called upon to adjudicate as between the defendants, the responsibility for the paint selection or the crossing, and its application and maintenance, I would have apportioned the responsibility in this way:
(a)
The first defendant, the school
35 per cent
(b)
The second defendant, T&J Turner
65 per cent
In short, the reason that the maintenance contractor would be attributed a higher share of responsibility is that it is fair to regard it as the body with the appropriate specialised knowledge (as between the defendants) about what paint should be used and how it ought to have been applied. Given the history of the supply and use of the paint, the school continues to bear some responsibility.
Summary
The plaintiff, Mrs Garzo, has not persuaded me that either of the defendants was negligent or in any way responsible for her injuries and disabilities. Her claim must be dismissed.
Had she succeeded, I would have awarded her a verdict of $759,060.
Had there been an award of damages, I would have allocated responsibility to the school of 35 per cent, and the maintenance contractor of 65 per cent.
Costs
The ordinary rule is that costs follow the event. In order words, Mrs Garzo should pay the costs of the proceedings. I see no reason to vary from this practice.
If any other order is sought, I will grant liberty to any party to make an application within seven days to my associate, provided that all other parties are notified of that application.
Orders
(1) Judgment for the first and second defendants on the plaintiff's claim.
(2) Plaintiff to pay the defendants' costs of the proceedings.
(3) Judgment for each cross-defendant on each of the cross-claims.
(4) Liberty to apply in respect of order (2) within seven days, by notification to my associate.
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Decision last updated: 15 April 2011
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