Gottlieb v Australian Leisure and Hospitality Group Pty Ltd
[2011] VCC 1399
•24 November 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
GENERAL DIVISION
Case No. CI-09-04843
| TERRY JOHN GOTTLIEB | Plaintiff |
| v | |
| AUSTRALIAN LEISURE AND HOSPITALITY GROUP LIMITED | Defendant |
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| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 31 October, 1 and 2 November 2011 |
| DATE OF JUDGMENT: | 24 November 2011 |
| CASE MAY BE CITED AS: | Gottlieb v Australian Leisure and Hospitality Group Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1399 |
REASONS FOR JUDGMENT
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Catchwords: Occupiers Liability – Wrongs Act 1958, s.14(B) – adequacy of both design of entry and lighting illuminating entry to commercial hotel premises.
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Counsel Solicitors
APPEARANCES:
| For the Plaintiff | Self-represented | - |
| For the Defendant | Mr I Gourlay | Richard Mole & Associates |
| HIS HONOUR: |
1 In this proceeding, the plaintiff alleges that he suffered injury and is entitled to damages from the defendant by reason of the defendant’s negligence and alternatively, by reason of the breach of the duty owed by the defendant to the plaintiff pursuant to the provision of s.14(B) of the Wrongs Act 1958 (as amended), as the occupier of an hotel premises in Ballarat.
2 The Bluebell Hotel located at 1-16 Howitt Street, Wendouree consisted of a typical hotel premises at which licensed gaming, a bottle shop and other various activities, including a pool competition were conducted.
3 On 9 September 2009, the plaintiff attended the premises to take part in a pool competition. As he exited the premises at approximately 9.30 pm, the plaintiff tripped upon a speed hump which was located within the entrance to the bottle shop.
4 In this proceeding, the plaintiff seeks damages for injuries occasioned to him by reason of the incident which I have described. Although the particulars of negligence in the proceeding are cast broadly, essentially it is the plaintiff’s allegation that at the time at which he was injured:
(a)
the lighting in the vicinity of the speed hump was inadequate, with the result that he did not, and could not reasonably be expected to see the speed hump;
(b)
the defendant failed to provide a separate entry for customers entering and leaving the main bar of the premises, such that they did not have to traverse the driveway of the bottle shop and the speed hump positioned in the driveway
The Applicable Principles of Law
5 Section 14(B)(3) of the Wrongs Act 1958 (“the Act”) provides as follows:
“ An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that any person on the premises will not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises.”
6 Section 14(B)(4) of the Act provides:
“Without restricting the generality of subsection (3), in determining whether the duty of care under subsection (3) has been discharged consideration shall be given to—
(a) the gravity and likelihood of the probable injury; (b) the circumstances of the entry onto the premises; (c) the nature of the premises; (d) the knowledge which the occupier has or ought to have of the likelihood of persons or property being on the premises; (e) the age of the person entering the premises; (f) the ability of the person entering the premises to appreciate the danger; (fa) whether the person entering the premises is intoxicated by alcohol
or drugs voluntarily consumed and the level of intoxication;(fb) whether the person entering the premises is engaged in an illegal
activity;(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.”
7 Further, this proceeding is governed by PART X of the Act which provides as follows:
“47 Effect of this Part on the common law Except as provided by this Part, this Part is not intended to affect
the common law.48 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.
(3) For the purposes of subsection (1)(b)— (a)
insignificant risks include, but are not limited to, risks that are far-fetched or fanciful; and
(b)
risks that are not insignificant are all risks other than insignificant risks and include, but are not limited to, significant risks.
49 Other principles
In a proceeding 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. . . . 55 No liability for materialisation of inherent risk
(1)
A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk.
(2) An inherent risk is a risk of something occurring that cannot
be avoided by the exercise of reasonable care.(3) This section does not operate to exclude liability in connection with a duty to warn of a risk.”
8 Given that this proceeding involves the plaintiff tripping whilst exiting a commercial hotel operated by the defendant, there can be little doubt in my opinion that the duty of care which the defendant owed to the plaintiff both at common law and by reason of the Act, was enlivened in the circumstances of the present case and the issue which requires my determination relates to whether the plaintiff has established on the balance of probabilities that his injury was caused by the breach by the defendant of the duty of care which was owed to him.
The Issues
9 The issues which require my determination are as follows:
(i) Did the defendant fail to provide a safe entry to the premises? (ii) Was the plaintiff involved in:
ƒ only one tripping incident; alternatively ƒ three tripping incidents occurring in rapid succession? (iii) Does the CCTV footage taken by a security camera located at the hotel show the entire incident in which the plaintiff was injured? (A sub- stratum of this issue involves the question as to whether the footage has been edited and/or whether absent any editing, it is reliable, having regard to the format by which it was recorded?)
(iv) Was the lighting in the area in which the speed hump was located inadequate?
(v) If there was negligence on the part of the defendant which was a cause of injury to the plaintiff, was the plaintiff guilty of contributory negligence?
(vi) If the plaintiff suffered injury by reason of the defendant’s negligence, do the plaintiff’s injuries involve bilateral injuries to his shoulders and, if so, to what extent is the defendant’s negligence a cause of the symptoms and incapacity which is present in each of the plaintiff’s shoulders?
Has the Plaintiff Established on the Balance of Probabilities that on the Night in Question he was Involved in more than One Fall?
10 The plaintiff described the circumstances in which he suffered injury as involving three separate incidents occurring in short sequence as follows. He said:
• Firstly, that as he walked towards the road, he tripped over the speed hump and fell flat on the ground with his hands out in front of him;[1] • Secondly, that as he picked himself up and he gathered the pool case which he had been carrying and was searching for papers which he had dropped, he again tripped over the speed hump, striking himself heavily against an upright wooden pole which supported the canopy.[2] The second incident having occurred, the plaintiff said he stood back and looked towards the pole with his hand on his hip; and • Thirdly, when he subsequently moved off again: [1] Transcript (“T”) 67; T 68
[2] T 69-70. The plaintiff was uncertain whether the trip which resulted in this incident was caused by reason of the presence of the speed hump or the raised edge of the garden bed in the immediate vicinity of the speed hump. Nothing of relevance in my opinion turns on this point.
“I just stumble[d] over the speed hump again and this time it wasn’t a direct fall like the first one. I was actually stumbling because I was trying to regain my balance with the end result being that I finished in the garden bed.”[3]
[3] T 72
11 Ann Marie Jacks, the plaintiff’s daughter, gave evidence that on the morning after the incident, the plaintiff had said to her that he had played pool at the hotel and that as he came out of the hotel he had fallen over “a couple of times” and that he had said “It was bloody dark up there”.[4]
[4] T 270
12 In my opinion, whether the plaintiff was involved in one, or more than one, fall on the night in question has little relevance to the question of the defendant’s primary liability which is to be assessed essentially upon adequacy or otherwise of both the design of the entry way and the lighting in the area.
13 The evidence of the plaintiff that he was involved in three separate falls is contradicted by the evidence of Mr Hass and the CCTV footage which depicts the plaintiff being involved in one incident in which he appears to have lost his balance when he came into contact with the speed hump and to have fallen into the small planting area which abutted the entrance to the driveway of the bottle shop.
14 It is the evidence of Mr Del Biondo that the watermarked copy of the CCTV footage cannot be altered and, accordingly, that what is shown on the disc, which is Exhibit 1, is a faithful presentation[5] of the incident in which the plaintiff suffered his injury on 9 September 2009.
[5] Within the limitations of the way in which the camera operated, in that it recorded only one quarter of
15 I found Mr Del Biondo to be an impressive witness. Whilst it is clear that the commercial relationship between Mr Del Biondo’s company and the defendant is a significant one, and that in these circumstances I should be cautious before I accept the impartiality of Mr Del Biondo, I found his willingness to concede matters such as the fact that neither the lighting depicted in the CCTV recording nor the speed at which the plaintiff was moving, as depicted in the recording, could be relied upon as exhibiting the practice which I would have expected of an independent expert witness. Further, in my opinion, there was nothing about any of the evidence given by Mr Del Biondo or his demeanour as he gave his evidence to suggest that he was not giving impartial evidence.
16 I accept the plaintiff’s position that, in the absence of other evidence, the CCTV footage cannot be relied upon for the purpose of assessing the true lighting which was present within the area depicted by the camera or the speed at which the plaintiff was moving at the time at which he suffered his injury. It is not in issue that the camera was not calibrated for the purpose of providing an accurate measurement of either of these factors.
17 It is clear however, the frame by frame analysis undertaken of the CCTV footage by the plaintiff is distorted by reason of the fact that the camera is set so that it records only five or six of the available twenty-five frames in every minute.[6] It follows the still photographs taken by the plaintiff upon which he has based his frame by frame analysis of the CCTV footage[7] present a picture of interrupted rather than continuous movement.
[6] T 434
[7] See the photographs which comprise Exhibit B
18 Whilst the plaintiff takes issue with the fact that the position of his head and body immediately before what is depicted in the footage as the moment at which he tripped over the speed hump is inconsistent with the direction of his body at the moment of his trip, I am not satisfied that the plaintiff has established on the balance of probabilities that these apparent inconsistencies are related to anything other than the fact that the film is not a perfect record of every millisecond involved in the plaintiff’s exit from the premises and his fall.
19 I make the same finding for the identical reason as to the assertion by the plaintiff that the commencement of the CCTV footage suggests the presence of an additional person to himself within the area of the entrance to the premises.
20 For the reasons I have expressed, I accept the expert evidence of Mr Del Biondo that the Watermarked CCTV footage[8] could not be altered and has not been altered in the manner alleged by the plaintiff so as to edit the footage such as to delete from the footage the two incidents about which the plaintiff gave evidence which preceded the fall depicted in the CCTV footage evidence.
[8] Exhibit 1
21 As to the speed at which the plaintiff was moving, whilst the CCTV footage clearly distorts that speed, the evidence of Mr Hass that the plaintiff was moving quickly is supported by the expert evidence of Mr Del Biondo who has expressed the opinion that the plaintiff was moving at a speed significantly faster than average walking pace.[9] For this reason, I do not accept the evidence given by the plaintiff on this issue.
[9] See the evidence of Mr Del Biondo relevant to figure 6 in Exhibit 2.
22 Accepting as I do the integrity of the CCTV footage, I cannot accept that the plaintiff has established on the balance of probabilities that he was indeed involved in more than one fall on the night in question. In making this finding, I do not lose sight of the consistency in the plaintiff’s evidence that he was involved in more than one fall and the contemporaneous report which he made to his daughter on the morning after the fall. When I compare this evidence however with the depiction of the incident involved in the plaintiff’s fall as shown in the CCTV footage, which I find truly represents the event of the night in question, insofar as it depicts one fall only, and in addition, take into account the consistency between this evidence and that given by Mr Hass, I cannot be satisfied on the balance of probabilities that the plaintiff has established the allegation that he makes upon this issue.
23 As I have previously commented, whether the plaintiff was involved in one, or more than one, fall on the night in question has little relevance to the question of the defendant’s primary liability. My finding that the plaintiff’s evidence upon this issue has not been established on the balance of probabilities:
(i)
is however relevant to the issue as to whether the plaintiff is a reliable witness; and
(ii)
does, in my opinion, raise a significant issue in this regard, in that it calls into question the reliability of the plaintiff’s recollection upon a critical issue as to the circumstances in which he sustained his injury.
24 In my opinion, the plaintiff’s lack of reliability on this issue raises questions as to the accuracy of his recollection as to the nature of the lighting which was present at the time, such that I should approach the analysis as to whether I should accept that evidence with caution.
25 It is appropriate that I record however my impression that the plaintiff was an honest witness and that he gave evidence in accordance with his truly held belief as to what occurred on the evening in question.
26 Throughout the trial I considered the plaintiff to have behaved in an exemplary manner. Notwithstanding the fact that the plaintiff conducted his trial without legal assistance, and that in the course of the trial a number of witnesses contradicted the evidence given by the plaintiff, he always remained courteous and considerate. The plaintiff’s concession that he was not prejudiced by the failure of the defendant to comply with its obligations to prepare an expert evidence statement which complied with the provisions of Order 44 of the County Court Rules[10] is a perfect example of the behaviour of the plaintiff which leads me to express the opinion I have as to the exemplary nature of his behaviour.
[10] T 287
27 This is not to say however, notwithstanding the fact that I accept that the plaintiff was doing his very best to tell the truth, that I am satisfied that his recollection of the events in question is not mistaken. It is on this basis that I make my finding:
• as to the reliability of the CCTV footage; and •
that I accept the evidence of Mr Hass in preference to that of the plaintiff as to the speed at which the plaintiff was moving before his fall;
namely, that I cannot be satisfied that the plaintiff’s evidence was reliable, notwithstanding that he was providing evidence in respect of matters about which he had a genuinely held belief.
Did the Defendant Fail to Provide a Safe Entry to the Premises?
28 Although no direct evidence was given by the plaintiff upon this issue, the evidence clearly allows me to consider the issue which, in my opinion, requires a commonsense analysis of the safety of the entranceway, having regard to its configuration and condition which is clearly depicted in the various photographs which have been produced by the defendant and in particular, figure 5 of Exhibit 2. In my opinion, it is appropriate to undertake this analysis on the basis that adequate lighting was provided in the driveway as a finding that the lighting was inadequate would, independently of a finding against the defendant upon the present issue, establish liability against the defendant.
29 In my opinion, the speed hump in question being:
ƒ marked by alternate black and yellow segments; and ƒ set within a pavement of a different colour; was both easily recognisable and was readily apparent as an obvious
structure within the driveway.30 Further, I am of the opinion that the speed hump was positioned such that pedestrians entering the hotel could walk around the speed hump should they chose to do so.[11] Indeed, I am not satisfied that the path taken by pedestrians, both when entering and exiting the premises through the doorway used by the plaintiff on the evening of his accident, would invariably lead them to a position in which they could not avoid the speed hump without making a conscious decision to do so.
[11] Figures 6 and 7 of Exhibit 2 make this point clear
31 In addition, there is no suggestion that the driveway or speed hump have been implicated in tripping or falling incidents other than that suffered by the plaintiff.
32 For these reasons, I am of the opinion that it was not unreasonable for the defendant to employ the method of access to the hotel which existed at the time of the plaintiff’s injury, and I am not satisfied that the plaintiff has established on the balance of probabilities that the defendant breached any common law duty of care or statutory duty of care which it owed to the plaintiff by failing to provide any exclusive access to patrons of the premises which avoided the potential of those patrons crossing over the speed hump.
Was the Lighting in the Area of the Speed Hump Inadequate?
33 There is no issue that the plaintiff suffered his injury well after dark and that any illumination of the speed hump arose by reason of artificial lighting. Neither is it in issue that the speed hump is located under a canopy which covers the driveway to the bottle shop at the hotel in which are located a bank of fluorescent lights.[12]
[12] For the purposes of this judgment I have appended a copy of figure 5 of Exhibit D in which numbers have been allocated to each lighting fixture within the canopy, and for ease of description I will refer to
34 It is the plaintiff’s position that, at the time at which he was injured, none of the lights located within the canopy were operating.
35 It is the defendant’s position that at the time of the plaintiff’s injury, all the lighting fixtures within the canopy, with the exception of fixture number 3 which is located immediately to the left of the speed hump, were operating.[13]
[13] In describing the position of various items in the course of this judgment, when I employ the descriptive term “to the left” or “to the right” I will do so using as a point of reference the plaintiff’s position as he stepped onto the driveway which supported the speed hump and, accordingly, those
36 I am satisfied that the luminescence present in the area of the speed hump with all the lights within the canopy operating with the exception of lighting fixture number 3 easily complied with all relevant lighting standards14 and accordingly that in these circumstances the lighting provided via those appliances was adequate.15 It follows that if those lighting conditions pertained at the time of the plaintiff’s injury, the defendant would not be guilty of any relevant breach of the duty of care which it owed to the plaintiff as the occupier of the premises to provide adequate lighting in the area of the speed hump.
37 Although there was no evidence from Mr Brache as to this issue I am satisfied that if the plaintiff’s evidence as to the lighting within the area of the speed hump is persuasive, namely that none of the fixtures was illuminated, that the lighting within the area would have been totally inadequate. It would follow in these circumstances that the defendant would have failed in its duty of care to the plaintiff as the occupier of the premises to provide adequate lighting in the area of the speed hump.
The Evidence as to the Lighting
38 In the course of evidence-in-chief, the plaintiff said that he played pool at the hotel until about 9.00 pm, that he consumed no alcohol during this period and that as he exited the premises, the area in the vicinity of the speed hump was “pitch black”. He said that at this time, whilst the bottle shop was operating and the internal lights for the bottle shop were on,16 no other lights within the canopy were operating. He described the area through which he was walking as at the time at which he tripped as being pitch black, the only illumination
references will be a reference to the area both to the left and to the right of the plaintiff at that time.
The opinion expressed by Marcus Brache, a senior engineering technician (see his report which is Exhibit 2), satisfies me that this is the case whether the relevant standard is that which is applicable to Public Activity Areas or Connecting Elements as described in AS/NZS1158.3.1:2005 (see Exhibit 4).
This finding is based on the assumption that all lighting fixtures were operating with the exception of fixture 3.
T 72
being provided by street lights and the bottle shop.[17]
[17] T 183
39 The plaintiff said at the time of the incident, no lights were on at all, the relevant area being in pitch darkness.
40 The plaintiff gave evidence that shortly after the incident at the conclusion of which he “finished in the garden bed”, he was approached by the bottle shop attendant who enquired as to whether he was alright and whether he needed an ambulance. At this time it was the plaintiff’s evidence that the following conversation took place:
THE PLAINTIFF:
Q: “Why aren’t the lights on?--- THE BOTTLE SHOP ATTENDANT:
A: I don’t know why the lights are not on. It’s dark.”[18] [18] T 73
41 As I have recorded earlier, Ann Marie Jacks, the plaintiff’s daughter, gave evidence that on the morning after the incident, the plaintiff had said to her that he had fallen whilst leaving the hotel on the previous evening and that he had said “It was bloody dark up there”.[19]
[19] T 270
The Evidence Adduced by the Defendant as to the Adequacy of the Lighting
42 Shane Matthew Hass gave evidence that he was the bottle shop attendant at the hotel on 9 September 2009. He described his observations of the happening of the incident in which the plaintiff suffered injury in the following terms:
“Mr Gottlieb came out of the venue and was moving quite quickly, and was running towards, sort of across Howitt Street, in that general direction, and he – as he ran down the driveway, [he] tripped over the speed hump and sort of stumbled for a second and then fell over just past the garden bed.”[20]
[20] T 242
43 At the time at which the incident occurred, Mr Hass said that the fluorescent lights within the driveway of the bottle shop over which he had control via a switch located within the bottle shop (being lights numbered 3 to 10) were functioning at the time of the plaintiff’s incident apart from two fluorescent lights in fixture no 3.[21]
[21] T 243-244
44 Mr Hass gave evidence that the appliances numbered 3 through to 10 were all activated by a manual switch located within the bottle shop. He said however that the fixtures numbered 1 and 2, together with the two down lights marked as “A” and “B” were controlled “by some sort of sensor”.[22]
[22] T 244
45 Mr Hass described the lighting in the vicinity in which the plaintiff fell as being “quite light”.[23] He said that he had observed the plaintiff from shortly after he emerged from the external door of the venue until a point just after he stumbled and fell into the garden area where his vision was interfered with by a pole,[24] but that the plaintiff was outside the area of his observation for “less than a second”.[25]
[23] T 245
[24] T 246
[25] T 246
46 Mr Hass denied that he had commented to the plaintiff that the area in which he fell was dark, or that he had said that the lights were not on.[26] He was asked:
[26] T 248
Q: “Were the lights on apart from the broken fitting that we have
spoken about?---A: Yes, yes.”[27] [27] T 248
47 Mr Hass said that after the incident occurred he completed an Incident Register Report and also reported the incident to his manager.
48 In cross-examination, Mr Hass said that he could not confirm that lights number 1 and number 2 were on at the time at which the plaintiff’s incident occurred.[28] He explained his position in this respect as follows:
[28] T 256
“Well all I can say from what I wrote in my statement, I’ve only said that
there was one, well, that circled light was out.[29]
[29] T 256. Here Mr Hass is referring to lighting appliance number 3
Q: You’ve said that one was broken?--- A: Yes. Q: But I note here you’ve said you can’t say for sure whether the
other two lights that you don’t turn on was on (sic)?---A: Yes, that is correct. Q: Yes, so which potentially there could be three lights not working that night of my accident and they’re the three lights that are all above this (indistinct]?--- A: Potentially, yes.”[30] [30] T 256. This evidence relates to appliances numbered 1, 2 and 3.
49 At the time of the incident, Mr Hass said he had no concerns about the visibility in the area of the speed hump[31] and no memory that the area was dark or gloomy.[32]
[31] T 262
[32] T 262
50 Shane Aaron Holmes gave evidence that he was the manager of the hotel and that on the Friday after the incident took place, the plaintiff had attended the hotel, informed Mr Holmes that he had tripped as he exited the hotel on the Wednesday evening, that he had shown Mr Holmes the area in which he had fallen and had requested a copy of any CCTV footage which depicted the incident.
51 As to the lighting within the area of the speed hump, Mr Holmes said that appliances 1, 2, A and B were activated by a light sensor and came on automatically when it was dark and remained on until “6 or 7 o’clock in the morning depending on how the light is”.[33] He was asked:
[33] T 379
Q:
“During the time that you have been a manager of the Bluebell Hotel, has there ever been an occasion when the sensor has malfunctioned?---
A: No, not from those lights.”[34] [34] T 379
52 Mr Holmes said that if the lights malfunctioned:
“I would receive a phone call from my – whoever was in charge, whether it be a supervisor or a duty manager on at that stage, during which I would then get in contact with an electrician to come out and actually fix up the lights and get that operational again.”[35]
[35] T 30
53 Mr Holmes said that his first opportunity to check the lights was on the Saturday evening when he found all the lights and sensors to be operational.[36]
[36] T 380
54 He was asked:
Q: “Has there been any other occasion when there has been any
difficulty with the sensor?---A: There’s – not in my time working at the Bluebell Hotel.”[37] [37] T 380. I took this passage of evidence by Mr Holmes to be referring to the sensor which activated the
55 Mr Holmes said that on 9 September 2009, Jeffrey Lund was the gaming supervisor at the hotel and that his duties involved locking and securing the hotel approximately half an hour after the doors of the venue were closed. He said that in the process of securing the venue, a walk around the outside of the venue was undertaken to make sure that all the external doors are locked and secured. He was asked:
Q:
“If there were no lights on in the area outside the door;[38] that is, if the halogen lights were off and the two fluorescent lights controlled by the sensor were off,[39] what might happen?---
A:
You wouldn’t be able to see when you were locking up because the key – we use a Biomet key with a – like a two-pronged key so it’s hard enough to get a normal key into – into a lock without any light but a Biolock would be even harder to get into the lock so you would be aware if there was no lighting because you wouldn’t be able to lock the door properly. … .[40]
Q:
If a staff member encountered that situation – the lights being out – would you expect or would there be a practice that he would report to you?---
A:
The staff would have already been aware because they do the rounds of cleaning up. … They go around and do laps basically all night, walking in and out of the rooms and it would have been if the sensor wasn’t working it would have stood out a lot earlier on in the night that it wasn’t on because it’s – as I said the patrons – the patrons that actually go there – they’re only got the one smoking solution after 11 o’clock, we actually physically lock the back smoking solution so that means then that the only one that they would be able to utilise is the front smoking solution area.[41]
Q: And is that an area the security staff would go out to as you have
indicated before when orbiting the premises?---A: Yes, it is. Q: What if it was a quiet night and there weren’t many people in the
pub?---A:
They – you still do walk arounds for security, that we actually have are also – part of their position is to make sure that our venue is secure so they walk both inside as well as outside to make sure that we don’t have any undesired, for example, a robber in the car park or anything along those lines so they do continual laps around the venue.”[42]
[38] This was a reference to lights A and B
[39] This is a reference to the lights within appliances 1 and 2
[40] T 382
[41] T 328
[42] T 382-383. This evidence being given in response to a question as to whether Mr Holmes would have expected that a report would have been made to him that the lighting was not operating if this was the case. I interpret his response as being a positive response to that question.
56 Mr Jeffrey Raymond Lund gave evidence that he was the night manager of the hotel in September 2009 and that his duties involved locking up the premises. He said that this involved him undertaking a check of the premises internally and externally and alarming the building.[43]
[43] T 458
57 Mr Lund said that there had been the odd one or two occasions when the light sensor at the hotel had malfunctioned and that the standard procedure in those circumstances was to call Mr Holmes or, if he was on leave, the assistant manager “because of the security and the safety factor”.[44] He was asked:
[44] T 460
Q: “If you were the night manager on 9 September 2009 and the
lights were not working would you have taken any steps?---A: Yes I would. Q: What would you have done?--- A:
First of all I would have checked globes but basically the first thing you do is call the manager to come in and, if there is a problem, get it sorted out via an electrician or with his extra knowledge of the premises.
Q: Did that happen?--- A: No.”[45] [45] T 460
Findings as to the Adequacy of the Lighting at the time of the Plaintiff’s Injury
58 In assessing the competing evidence as to whether the lighting in the area in which the plaintiff fell was adequate at the time of the incident, commonsense, in my opinion, dictates that I should approach the analysis on the basis that to allow the hotel to operate in circumstances in which the driveway of the bottle shop and the doorway through which the patrons both entered and exited the hotel were not illuminated by any of the lights[46] would be to expose patrons of the hotel to a very significant risk of injury. This risk would arise as patrons entered and exited the hotel:
[46] Namely lights A and B, and light fixtures 1 through to 10 See the evidence of Mr Lund between T 460, line 3 and T 461, line 6
•
not only by reason of the inability of patrons to observe the presence of any tripping hazards which were located in the area through which they were to walk, but also
•
by reason of the fact that vehicles entering the bottle shop were travelling through an area in which pedestrians may be moving, whose presence could only be detected if it was picked up by the headlights of those vehicles.
59 In addition, a practice which involved operating the bottle shop without activating the lights within the canopy would seem to me to be unlikely purely for commercial reasons, as it would probably be bad for the business of the hotel, in that it would tend to suggest that the hotel was in the process of closing or was closed when it was not.
60 In these circumstances, it seems to me that it would be unlikely that Mr Hass would choose to operate the bottle shop without activating the lighting within the canopy over which he had control.
61 Further, whilst the lights governed by the sensor may not have presented as crucial a safety factor to the operation of the bottle shop as the remaining lights within the canopy; I consider it likely that Mr Hass would have noticed the fact that they were not operating if that was indeed the case.
62 In this regard, the concession by Mr Hass that it was possible that lights 1 and 2 were not operating does not make it either likely or probable that the lights were indeed not operating when the totality of the evidence given by Mr Hass as to the visibility in the area of the speed hump is taken into account.
63 For these reasons, the plaintiff’s evidence that the area through which he was walking was in pitch darkness at the time at which he suffered his injury is, in my opinion, improbable in the extreme.
64 That is not to say that I should not accept that evidence if I am satisfied on the balance of probabilities of its accuracy.
65 I accept the evidence of Ms Jacks that the plaintiff did complain to her on the following morning that the area through which he was walking was dark at the time of his injury. The fact that the plaintiff made this complaint is a matter which I take into account and which does, in my opinion, provide support for the allegations made by the plaintiff as to the inadequacy of the lighting in the area.
66 Further, I accept the plaintiff’s position:
(i) that there was a delay on the part of the defendant in replacing the broken fluorescent tube or tubes which had resulted in the failure of lighting fixture number 3 to operate; (ii) that on occasions, other light globes at the main entrance to the defendant’s premises were not functioning; and that these matters raise issues as to the diligence which the defendant
applied to the maintenance of lighting around its premises.67 With respect to the delay in replacing the fluorescent tube in fixture number 3 however, I am satisfied that the need to reactivate the fixture did not involve matters of public safety as the area was adequately illuminated by the other lights (this being attested to by the lighting measurements undertaken by Mr Brache). For this reason, the defendant’s delay in this regard does not, in my opinion, make it probable that it was prepared to allow the hotel to function whilst all the lights within the canopy were not operating.
68 In order to succeed upon this issue, the plaintiff has the onus of establishing on the balance of probabilities that the lighting within the area of the speed hump was inadequate.
69 It is put by the plaintiff that the only evidence of relevance as to the adequacy of the lighting which was present at the time of his fall was that given by himself and that given by Mr Hass. This contention is plainly wrong. Whilst eye witness evidence may assume critical importance in some circumstances, I must decide this matter, taking into account all relevant evidence which assists me in deciding whether the position contended for by the plaintiff has been established on the balance of probabilities.
70 I have previously commented upon the plaintiff’s reliability as an historian. Whilst my comments in this regard are not determinative upon the issue as to whether any lights were operating at the time of the plaintiff’s fall, I find the evidence given by Mr Hass more persuasive than that given by the plaintiff as to whether lighting fixtures 4 to 10 were operating as at the time of the plaintiff’s fall as, in my opinion, it accords with the probabilities of the situation.
73 71 Further, given the evidence of Mr Hass that he did not consider the lighting in the area of the speed hump to be inadequate when considered with the fact that Mr Lund made no report that the lights operated by the sensor were not functioning, I am not satisfied that the plaintiff has established that lights 1, 2, A and B were not operating.
72 Although the plaintiff asserts that there is a discrepancy in the evidence by Mr Holmes and Mr Lund as to whether the sensor which activated lights 1, 2, A, and B, had ever previously malfunctioned, it is unclear from the evidence whether Mr Lund was referring to that sensor in the passage of evidence which is relied upon by the plaintiff when his answers are considered in their total context.[47] Assuming however that such a discrepancy does exist and that for this reason I should not accept the evidence of Mr Holmes that Mr Lund neither noticed nor reported the fact that the sensor was malfunctioning, when considered in the context of the evidence of Mr Hass as to his impression of the adequacy of the lighting, in my opinion so undermines the evidence by the plaintiff that no lights were operating as to render that evidence totally unpersuasive.
[47]
Summary as to the Finding that the Lighting in the area of the Speed Hump was Adequate
When I take into account the evidence in support of the plaintiff’s case; (i) the evidence given by the plaintiff, together with the contemporaneous
complaint made by him to his daughter;
(ii) the evidence to which I have previously referred as to the presence of other lights which were malfunctioning at various times and locations about the premises;
and I weigh against that evidence:
(iii) the probabilities of the situation to which I have referred, considered in the context of (iv) the evidence of Mr Hass, Mr Holmes and Mr Lund; I am not satisfied on the balance of probabilities that the plaintiff has made out the allegations upon which he relies, that the lighting in the area in which he was injured was inadequate.
Conclusion
74 For the reasons I have given, I am not satisfied that the plaintiff has made out the onus upon him to satisfy me on the balance of probabilities:
(i) that the design of the area through which he was walking at the time he was injured was inadequate, such that it failed to provide him with safe access to the hotel; (ii) that the illumination provided by the lighting in the area of the speed hump at the time of his injury was in any way deficient; and thus that the defendant was in breach of any duty of care which it owed to
the plaintiff as the occupier of the hotel.75 In the circumstances, the plaintiff’s case against the defendant has not been made out and I will hear the defendant at a time convenient to both parties as to the orders which I should make in the proceeding.
Appendix
Figure 5. The twin tube fluorescent light that is believed to be not working at the time of the incident is located approximately 3-4 metres from the speed hump highlighted. the available frames.
each of the fixtures by the number allocated to it in the appended copy of figure 5.
lights in question; namely, appliances 1, 2, A and B.
0
0
0