Jennings v George Harcourt Management Pty Ltd
[2018] ACTSC 33
•27 February 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Jennings v George Harcourt Management Pty Ltd |
Citation: | [2018] ACTSC 33 |
Hearing Dates: | 13 - 16 November 2017 |
DecisionDate: | 27 February 2018 |
Before: | McWilliam AsJ |
Decision: | 1. Judgment for the second and third defendants. 2. The plaintiff is to pay the costs of the second and third defendants. 3. Order 2 is stayed for 7 days. |
Catchwords: | TORTS – NEGLIGENCE – duty of care – breach – causation – where car park user stepped in pothole or tripped on log in darkness en route from vehicle – whether inadequate lighting in outdoor car park – whether inadequate maintenance system – no breach established |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) s 42, 43, 45, 46, 99, 168 |
Cases Cited: | Bridge v Coles Supermarkets Australia Pty Ltd (No 3)[2017] NSWSC 1800 Brozinic v ISS Facility Services Australia Ltd [2014] ACTSC 8 Van Gervan v Fenton (1992) 175 CLR 327 |
Parties: | Marion Dulcie Jennings (Plaintiff) George Harcourt Management Pty Ltd (ACN 121 123 073) (Second Defendant) ASB Properties Pty Ltd (ACN 106 469 112) (Third Defendant) |
Representation: | Counsel P Menzies QC with J Wilson (Plaintiff) N Chen SC (Second and Third Defendants) |
| Solicitors Capital Lawyers (Plaintiff) RGS Law (Second and Third Defendants) | |
File Number: | SC 137 of 2012 |
On Friday 15 May 2009 at approximately 7.15pm, the plaintiff, Mrs Jennings, then 63 years of age, fell in the outdoor dirt/gravel car park at the George Harcourt Inn (Inn). She was not affected by alcohol at the time; rather, she had just parked her car and was walking towards the Inn to attend a celebratory function for a colleague.
The plaintiff fractured her ankle in two places. The consequences said to flow from that injury, including disabilities that developed, were moderately serious.
The defendants
Proceedings against the first defendant, George Harcourt Inn Pty Ltd (ACN 147 131 780), were discontinued by the time the matter was heard in November 2017 (the hearing having been vacated on two earlier occasions for different reasons).
The operator of the car park was the second defendant, George Harcourt Management Pty Ltd (ACN 121 123 073). The hearing proceeded on the basis that the second defendant was the occupier of the car park, and it was the conduct of the second defendant that arose for consideration in the claim of negligence, because the control, the lease and the running of the business was all through the second defendant as the management company who ran the hotel.
The owner of the car park was the third defendant, ASB Properties Pty Ltd (ACN 106 469 112). No evidential case was raised against the third defendant and accordingly, judgment ought be given for the third defendant.
The claim
On 4 May 2012, the plaintiff commenced proceedings in this Court alleging negligence and seeking damages plus legal costs.
The focus of the case on liability was what caused the plaintiff to fall. Lying horizontally across the partially lit car park was a line of wooden logs, commonly referred to as railway sleepers. The sleepers acted in part as a barrier to further movement by cars, although being so low on the ground their true effect was more in the nature of a divider; to organise where the cars were to park in the car park, and thus achieve an orderly method of parking in the space.
The plaintiff’s case was that she stepped into a ‘small pothole, the size of a dinner plate’, located immediately behind the sleepers, at a gap where the ends of two sleepers joined. She said she could not see the pothole because of the lack of adequate lighting in the car park.
The plaintiff’s case was not that she tripped on a sleeper which she did not see. Rather, she claimed she did see the sleeper and stepped over it successfully, but then fell because of a pothole behind the sleeper. She said the defendants’ negligence was in failing to identify and rectify the pothole, or alternatively failing to warn her of its presence. Because of a lack of evidence on the issue, she ultimately did not press a claim that the lighting of the carpark was negligent in failing to illuminate the pothole sufficiently to bring it to her attention. However, I have dealt with it below for completeness.
The second defendant’s case was that the plaintiff tripped over the sleeper, that there was sufficient light to see the sleeper, and presumably that the sleeper was an obvious risk that did not need guarding against.
Summary
For reasons set out below, even if it were accepted that there was a pothole in the vague terms described by the plaintiff, the evidence was not sufficient to establish that the second defendant failed to discharge its duty of care to the plaintiff, either by failing to maintain the car park so that the hole was discovered and repaired, by failing to warn patrons, or by failing to provide better lighting in the car park so that the hole could be seen.
Further still, assuming there was a hole and that the occupier failed to maintain the ground to an acceptable level or provide better lighting, there is insufficient evidence to establish that reasonably improved maintenance would have identified the hole alleged, or that lighting to a reasonable standard (assuming such a standard was identified in the evidence) would have alerted the plaintiff to the state of the ground at the very particular spot where she chose to step.
It follows that even if the plaintiff had established breach of the duty of care owed, there was insufficient evidence to enable a finding that any such breach caused the fall.
The result is that the plaintiff has not succeeded in establishing her claim.
Legislation
The second defendant being the occupier of the car park, it is governed by s 168 of the Civil Law (Wrongs) Act 2002 (ACT) (Act), which relevantly provides:
Liability of occupiers
(1) An occupier of premises owes a duty to take all care that is reasonable in the circumstances to ensure that anyone on the premises does not suffer injury or damage because of—
(a) the state of the premises; or
(b) things done or omitted to be done about the state of the premises.
(2) Without limiting subsection (1), in deciding whether the duty of care has been discharged consideration must be given to the following:
(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 the occupier has or should have about the likelihood of people 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;
(g) the burden on the occupier of removing the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.
(3)…
(4) This section replaces the common law rules about the standard of care an occupier of premises must show to people entering on the premises in relation to any dangers to them.
(5) This section does not affect—
(a) other common law rules about the liability of occupiers to people entering on their premises; or
(b) any obligation an occupier of premises has under another Act or any statutory instrument or contract.
(6) In this section:
occupier, of premises, includes the lessor of premises let under a tenancy who—
(a) is under an obligation to the tenant to maintain or repair the premises; or
(b) could exercise a right to enter.
The standard of care is that of a reasonable person in the defendant's position who was in possession of all the information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose: s 42 of the Act.
On the question of whether the standard of care has been breached, s 43 of the Act applies. It provides:
Precautions against risk—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 deciding whether a reasonable person would have taken precautions against a risk of harm, the court must consider the following (among other relevant things):
(a) the probability that the harm would happen if precautions 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 creating the risk of harm.
On the question of causation, s 45(1) of the Act applies. It is in the following terms:
General principles
(1) A decision that negligence caused particular harm comprises the following elements:
(a)that the negligence was a necessary condition of the happening of the harm (‘factual causation’);
(b)that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (the scope of liability).
The burden of proving any fact in relation to the issue of causation lies with the plaintiff: s 46 of the Act.
Evidence
The plaintiff gave oral evidence and relied on an earlier statement she had provided to an accident investigator. The documentary evidence was that the plaintiff was wearing a boot with an almost flat heel.
In oral evidence, the plaintiff confirmed that although it was dark, she was able to see the ground as she walked towards the Inn. She was also able to see that she needed to walk around a parked car and she was watching where she was going. The plaintiff denied that she tripped over the sleeper.
I generally accept the plaintiff’s evidence, but will deal with one matter specifically below, being whether she stepped into a pothole, or tripped over a sleeper, or whether something else caused her to fall.
Evidence was given by three co-workers who assisted the plaintiff after the accident, Ms Fostar Canty, Ms Gaynor Thompson and Ms Judith Knight, none of whom saw the plaintiff fall.
Ms Canty came down from the Inn to assist the plaintiff once she learned of the fall. Her recollection was that there was light coming from the Inn but it did not reach the location of the plaintiff’s fall. There were bushes along the side of the car park which partially blocked light coming from the Inn itself. There was also a light in the car park, but again it was located a distance away from the site of the fall and it did not cast any light onto the relevant area.
Ms Canty described the area as being ‘pretty dark’ and that a person would need to have been taking full notice of what was in front of them, trying to see what was there. She did not give any evidence of seeing any potholes.
Ms Thompson’s evidence was that she saw a pothole at the point where the plaintiff fell, but only after the plaintiff had fallen and she had walked back to assist her. Ms Thompson said that when she looked down at the ground, she could see where she was walking, and she was able to see and walk around other potholes in the car park when she was travelling to and from her car that evening. Further, she was walking a little way ahead of the plaintiff and she was specifically warning the plaintiff about the potholes, saying ‘watch the pothole’.
The evidence did not go so far as to explain what Ms Thompson meant when she used the term ‘pothole’. For example, there was no mention of the size or depth of the hole Ms Thompson saw near the plaintiff’s foot after she fell, or whether the hole was an indentation or a depression in the gravel, or had more defined edges.
Ms Knight was already sitting at the Inn when she learned of the plaintiff’s accident. She went down the steps to see the plaintiff. She did not look down at the plaintiff’s feet. She said to the plaintiff, ‘what are you doing down there?’ The plaintiff said to her, ‘I tripped over the railway sleeper’.
As to the lighting, Ms Knight remembered that the lighting was very poor, and that the light level was on the darker side of dusk. There was only one streetlight down a bit further for the whole parking area and it did not throw light to where the plaintiff was under the trees. She also recalled a light near the Inn.
The plaintiff’s daughter gave evidence in respect of the assistance the plaintiff required as a result of her injuries and disabilities.
Mr James Rule gave evidence for the defendant. He was the person responsible for the outdoor maintenance of the Inn. His evidence was that he worked several days a week, usually from about 9am until 2 or 3pm. He worked on a Friday because he would be preparing the Inn for the weekend trade.
Mr Rule’s tasks included picking up rubbish in the car park, particularly from the bushes along the side where it used to accumulate, and keeping an eye on the car park, making sure there was nothing dangerous there, no holes or sleepers move or anything like that.
He said that a sleeper could move if people drove over them or ran into them and it was his job to put them back into place. Mr Rule accepted that the sleepers were uneven in places, that there were gaps between some of them, that such matters could cause a trip hazard, and that he had not fixed them.
He gave some evidence about the lighting, as to where particular lights pointed. However, he had never been to the car park at night time.
Mr Rule said that he had never seen a pothole in the location where the plaintiff fell, and he was not aware of any complaints about the condition of the car park or any other incidents or injuries in the car park. However, he accepted that he had not specifically looked for potholes and he further accepted that from time to time, there were indents about 3 centimetres deep where cars had spun their wheels and the ground had sunk in a little bit. Most of the time Mr Rule filled those in, but not immediately and only when he noticed them.
If Mr Rule saw a build-up of leaves, he might rake them up. However, he may also have thought that leaves in the car park were so unimportant that they may not need to be raked up.
Mr Gilbert Miller, the manager and licensee of the Inn, gave evidence for the defendant. He arrived at the scene of the accident shortly after it occurred, while the plaintiff was lying in significant pain, waiting for an ambulance. He asked the plaintiff what happened. His initial recollection was that she said to him ‘I fell over the log’, but he then revisited that answer and said that she might have only said she ‘fell over’.
Mr Miller said that either he or Mr Rule crossed the car park every single day and that once a problem with the surface reached a certain level, he would call up the relevant contractor and request delivery of red granite. The contractor would then come and compact and level the material.
He was adamant he had not seen a pothole in the area where the plaintiff fell at any time and including on the night in question when he said he looked. Once again, what he understood by the term ‘pothole’ was not explored. Further, having stated that he did not pay attention to the plaintiff’s foot, he then said he could see the left foot, and did not see any abnormality. Every other version of the incident where the witness actually looked at the left foot was to the effect that it was twisted to one side to a significant degree.
The fact that the manager did not appreciate the visible injury to the foot of a patron of the Inn does tend to support the other evidence that the quality of the light in the location of the fall was extremely poor and I do not accept that he looked at the ground where the plaintiff fell with the care required in the dark that would have enabled him to see any irregularity.
Concurrent oral expert evidence was given by Dr Tim Ho, pain medicine and rehabilitation medicine physician, for the plaintiff, and Dr Seamus Dalton, rehabilitation physician, for the defendant. The remaining expert medical reports and medical evidence were tendered without the experts being required for cross-examination, and any medical issues were dealt with through the submissions made on behalf of the parties.
I found each of the witnesses who gave oral evidence to be generally credible. Although they were not all entirely consistent as to the state of the car park or the lighting, having heard and reviewed their evidence, there ultimately is little overlapping direct factual controversy and the task has been more in the nature of drawing together the observations of each witness.
Findings of fact
The pothole
It will be seen from the above that there is ambiguity in the evidence as to how the plaintiff came to fall. There was no direct observation by anyone, including the plaintiff, to confirm that she stepped into a pothole and it was this that caused the fall.
The plaintiff’s first reaction appears to have been that she must have tripped over the sleeper. As set out above, that was what she told her co-worker, Ms Knight. At the Accident and Emergency room in Canberra Hospital on 15 May 2009, the clinical notes in evidence record that the plaintiff ‘did not see sleeper on ground and tripped over it’.
However, the plaintiff later filled out a workers compensation form with CGU dated 21 May 2009, within a week of the accident. Under the heading ‘Incident details’ the question is asked on the form ‘what happened?’ The words on the form are ‘stepped over a sleeper log in the carpark’.
The plaintiff was cross-examined on later-dated personal injury claim forms, which it transpired were filled out by lawyers for the plaintiff, but which she then signed. Those forms differ in that they use the word ‘tripped’ instead of ‘stepped’. The fine nuances between the words ‘tripped over a log’, and ‘stepped over a log’ or even ‘tripped when I stepped over a log’, arising for consideration in the context of this hearing, concerning a claim in negligence in 2017, would not have been something the plaintiff was attuned to look out for when signing a form that did not purport to be her carefully considered evidence in 2009 and I am not prepared to draw any adverse inference from that evidence.
The plaintiff’s signed statement on 14 June 2009 records in part:
[12] …the lighting was very poor and I could not see where I was walking. There is one light pole in the carpark which was at the opposite end to where I parked.
[13] I went to step over a sleeper divide and there was a small pot hole, the size of a dinner plate, on the other side that I stepped into it with my left foot. I did not see this pothole before I stepped over the log. I went to move forward and the next thing I recall I was sitting on my backside. My ankle was obviously broken and my foot was facing the wrong way. I felt excruciating pain and went numb very quickly.
I consider that to be the best account of what happened. It was made shortly after the accident and was consistent with what the plaintiff said under oath in the witness box.
Senior counsel for the plaintiff submitted that the Court cannot infer from the lack of a photo at the time that the pothole did not exist. I agree with that submission. The Court must deal with the state of the evidence that is before it. While it would have been of great assistance to the plaintiff to go back to the site and take a photo showing the said pothole, at the very least to assist her in providing the necessary detail in oral evidence to establish her case, the plaintiff had a broken ankle at that point and no doubt the focus was on healing rather than gathering the evidence for a potential personal injury claim to be filed three years after the event.
The photos that were in evidence were taken less than a month after the accident, by an accident investigator on behalf of an insurer for the purpose of a workers compensation claim. The focus for the investigator was different. As broadly put in oral submissions, it was to establish whether or not the incident occurred in the course of employment, and whether or not there had in fact been an injury of the general nature complained of. It is hardly surprising, then, that the investigator did not carry out further investigations, and does not have detailed close up photographs of the sleeper that would be sufficient to reveal the existence or otherwise of any hole behind it.
What the photos do show clearly, however, is the general nature of the car park that assists with understanding the evidence of all the witnesses. For example, the uneven nature of the car park surface is readily apparent. In one photo, the presence of a small trench that had developed in the dirt near the paved entrance to the Inn (not near the location of the fall) shows the vulnerability of the surface to the elements. Leaves can be seen along the sleepers obscuring the ground at the base of the sleepers, and the extent of shadows cast by trees and the bushes along the side is apparent.
The second defendant’s witnesses did not accept there was a pothole. However, no one ever teased out sufficiently with any of the witnesses what was meant by their description of a ‘pothole’ which the witness either did or did not see, depending on who was giving evidence. For the plaintiff, it could have simply been a significant depression in the gravel that was created over time by the edge of the sleeper digging into the uneven ground and either or both the sleepers moving to a small degree, which Mr Rule’s evidence indicated happened from time to time. Alternatively, rain water running off the edges of each sleeper may have pooled in the clear gap where the sleepers joined and over time, created a small hole. If the plaintiff’s toe or heel of her boot landed in the wrong spot, even the very small heel evident on the type of shoe the plaintiff was wearing on the night in question might have caught the dirt or gravel in a manner sufficient to throw a 63 year old lady (with osteoarthritis), negotiating a sleeper in the dark, off balance. This illustrates the plausibility of the plaintiff’s account and is a way of reconciling the evidence of the second defendant’s lay witnesses. In short, Mr Miller or Mr Rule for the second defendant might not have considered a sinking or depression of the ground to be a ‘pothole’, but I am prepared to accept that it existed on the balance of probabilities.
I have drawn the inference of the shallow depth of the hole from the plaintiff’s description of the small hole being like a dinner plate. Senior counsel for the second defendant submitted that the Court should not draw any inferences favourable to the plaintiff when no attempt is made to prove them by direct evidence: Commercial Union Assurance Co of Australia v Fercomm Pty Limited (1991) 22 NSWLR 389, per Handley JA at 418. However, the evidence that the hole was the size of a dinner plate was in a signed statement by the plaintiff, tendered in evidence. The Court is entitled to give content to those words, and in any event, the finding that the hole was shallow does not appear particularly favourable to either party.
Accordingly, I accept there was a ‘pothole’, being a depression, unevenness or irregularity in the ground at the point where two of the sleepers joined, which was of sufficient depth that it could be described as a small hole, and that the plaintiff stepped over the join in the sleepers with her left foot, but her step was not far enough to clear the hazard of the hole.
The lighting
The lighting in the place where the plaintiff stepped was undeniably poor. First, at 7.15pm in May in Canberra, it was dark, although not pitch black.
Second, there was one light in the car park and it was nowhere near the location of the fall. No one said it threw direct or indirect light on the relevant part of the car park.
Third, there was a light at the Inn which cast light back into the car park, but again, the evidence was that the light did not directly illuminate the spot where the plaintiff fell.
Fourth, the plaintiff was navigating her way between large bushes on her left and a large tree on her right, between parked cars and the sleepers themselves, which all impacted on the indirect light that was thrown on the critical area, namely just behind the sleepers.
I make no finding as to whether the lighting fell below any particular standard for outdoor car parks, because such a standard was not in evidence.
The system of maintenance for the car park
The system of maintenance was casual. The car park was observed daily by either the manager or the outdoor maintenance employee. Obvious issues of untidiness or things that needed repair were attended to, although not immediately. It appears tasks such as filling holes in the car park were undertaken on an ad hoc basis, once the number of irregularities was sufficient to warrant the cost of a contractor coming out to fill, compact and grade the surface. In the case of rubbish, this was attended to on a daily basis and in the case of leaves, again they were raked up when there was sufficient build-up to warrant special attention.
Although the maintenance employee kept an eye out for sleepers that may have obviously moved and required being put back in the right place, neither the manager or the maintenance employee specifically walked along the line of the sleepers looking for any hazard or irregularity, either at all or with any frequency.
The system of maintenance in the car park was thus insufficient to identify the particular hazard. However, that finding ought be distinguished from the legal question of whether the system that was in place fell short of the standard required to discharge the second defendant’s duty of care.
No breach of duty of care is established
‘All care that is reasonable in the circumstances’
In accordance with s 168 of the Act, the Court must assess whether the second defendant discharged its duty to take ‘all care that is reasonable in the circumstances’. It is important to understand what those words mean, particularly given how this case was run and the nature of the evidence that was led.
The words require a balancing exercise directed to management of risk, described in the authorities below as an ‘interplay of considerations’: Thompson v Woolworths (Q’Land) Pty Ltd [2005] HCA 19; 221 CLR 234; at [37].
The words of s 168 of the Act also reveal an acceptance of the proposition that there is no such thing as a hazard free environment, and further, that the obligation on the occupier is not necessarily to eliminate all risk on its premises. As Master Mossop (as his Honour then was) put it in Brozinic v ISS Facility Services Australia Ltd [2014] ACTSC 8 (Brozinic) at [58], there is no such thing as absolute safety. Ordinary people manage risks of injury, particularly where they are obvious, as part of ordinary life.
The mandatory factors in s 168 of the Act assist the Court to make the assessment, and reference will be made to those shortly. However, it is important to remember that those factors are all in the context of the broader evaluative judgment of what care is reasonable in the circumstances.
Identifying the nature of the risk
The NSW Court of Appeal decision in Phillis v Daly(1988) 15 NSWLR 65 (Phillis v Daly) contains somewhat coincidental facts to the present case. In April 1984 in New South Wales, at 5.30-6.00pm in the afternoon, a plaintiff tripped over a log in the flat dirt parking area on her way into the hotel of the defendants. Mahoney JA stated at 75:
In the present case, the danger was, for the reasons to which I have referred, obvious. And it was, I think, ordinary. There was no evidence as to what may be expected in the grounds of a country hotel on the road to Bourke. But it would, I think, cause no surprise if there were logs upon the ground or if they were used to mark off the areas of it.
Samuels JA, in agreeing with the orders proposed by Mahoney JA stated at 69:
I am content to assume that the logs could have been replaced by some safe and suitable though uninspiring substitute. But in my opinion the chance of a visitor to the premises coming to grief in stepping on and over the logs was so slight as to require no precaution omitted by the occupiers.
On the above authority, a sleeper in the day time lying in a dirt or gravel car park was an obvious, ordinary risk. A small shallow hole next to a sleeper may also have formed part of the obvious, ordinary risk in a dirt car park.
As discussed below, an obvious risk may change under the cover of darkness. In the present case, the distinguishing features are that while the sleeper itself was obvious – the plaintiff’s own evidence was that she saw it – in low light, the hole behind it was not.
The danger here was neither the sleeper nor the pothole by itself, but the combination of the pothole behind the sleeper. Further, it was that combination faced by a person approaching it in the dark.
The risk for the occupier to guard against may thus be identified as the risk that a person might injure herself by stepping over a sleeper into a small hole, because she could not see it in the dark.
General principle that a plaintiff will exercise reasonable care
Part of the ‘circumstances’ of a case include that a plaintiff is expected to take care for her own safety. In the joint judgment of Gaudron, McHugh and Gummow JJ in Ghantous v Hawkesbury City Council, which was heard together with Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512 (Brodie) the concept was expressed in the following terms at [163] (citations omitted, emphasis added):
… persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, tree roots or holes. Of course, some allowance must be made for inadvertence. Certain dangers may not readily be perceived because of inadequate lighting or the nature of the danger (as in Webb v South Australia) or the surrounding area ... In such circumstances, there may be a foreseeable risk of harm even to persons taking reasonable care for their own safety. These hazards will include dangers in the nature of a 'trap' or, as Jordan CJ put it 'of a kind calling for some protection or warning'.
In Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98, Gleeson JA observed at [159] that the scope of the occupier’s duty of care is marked out by the relationship between the occupier and users exercising reasonable care for their own safety. The weight to be given to an expectation that potential plaintiffs will exercise reasonable care for their own safety is a general matter in the assessment of breach in every case.
More recently in Bridge v Coles Supermarkets Australia Pty Ltd (No 3)[2017] NSWSC 1800 (Bridge), Campbell J stated at [55]:
Amongst the other relevant considerations is an expectation that an entrant to the premises would use reasonable care for his own safety. Meagher JA explained this in Ratewave Pty Ltd v BJ Illingby [2017] NSWCA 103 (Macfarlan JA and Fagan J (the latter on this point) agreeing) and expressed it this way (at [54]):
In assessing what reasonableness requires in response to a particular risk of harm, the reasonable person in the occupier’s position is entitled to take into account “with due allowance for human nature, [that] a person he permits to be on his premises will use reasonable care for his own safety”: per Mahoney JA in Phillis v Daly(1988) 15 NSWLR 65 at 74; a passage cited with approval in Roads and Traffic Authority of NSW v Dederer(2007) 234 CLR 330 at [45] fn 69 (Gummow J); [2007] HCA 42. The weight to be given to that expectation is in each case a matter for factual judgment: Thompson v Woolworths (Q’land) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234 at [35]; [2005] HCA 19; and the matters to be considered include the “obviousness of [the] risk, and the remoteness of the likelihood that other people will fail to observe and avoid it” (at [36]). The Court (Gleeson CJ, McHugh, Kirby, Hayne and Heydon JJ) continued (at [37]):
The factual judgment involved in a decision about what is reasonably to be expected of a person who owes a duty of care to another involves an interplay of considerations. The weight to be given to any of them is likely to vary according to circumstances. If the obviousness of a risk, and the reasonableness of an expectation that other people will take care for their own safety, were conclusive against liability in every case, there would be little room for a doctrine of contributory negligence. On the other hand, if those considerations were irrelevant, community standards of reasonable behaviour would require radical alteration.
The statutory regime may have been slightly different from that applying in this jurisdiction. However, the considerations expressed above are reflected in s 168(1) of the Act and do no more than succinctly restate the common law which expressly remains applicable on this point, through s 168(5) of the Act.
These cases illustrate the tension that arises around obvious risks, and in particular, the weight to be given to the expectation that one must care for one’s own safety in the dark. The consideration is relevant to this case because had the sleeper not been there, the plaintiff is likely to have been able to see the hole (on the evidence of other witnesses that they could see the ground as they walked), or the hole may not have existed in the first place.
I consider that the ground immediately before and after the sleeper is part of the obvious risk that the sleeper creates. The plaintiff needed to take reasonable care for own safety, not just to appreciate that the sleeper was there, but to be attentive to what she did with her feet when stepping over it. Although that expectation exists regardless of whether it is day or night, darkness itself is an obvious hazard and people generally do need to take greater care when walking in the dark.
However, it is a fine balance in this case, because the plaintiff does appear to have taken reasonable care for her safety, given the darkness. She was walking not running. She was wearing flat shoes. She was looking at the sleeper and she stepped over the obvious hazard at a join, where the sleeper that was on her left as she approached it was obviously a little higher from the photographs in evidence.
The risk was foreseeable and not insignificant
Consideration of this question involves some of the mandatory factors in s 168 of the Act.
First, the car park was for commercial use, in that patrons of the Inn were expected to park their cars and walk across the car park to the Inn. The area was likely to have pedestrian traffic.
Second, the person walking in the car park was a 63 year old woman attending the Inn after work. Given the evidence that Friday and Saturday nights were the busiest nights for the Inn, the circumstances of entry to the car park by such a person were ordinary and reasonable. It was no surprise to the occupier that patrons would be in the car park at that time of night. The occupier knew that people would walk across the car park at night.
Third, the general ability to appreciate the danger is relevant to foreseeability of risk. Someone with ordinary eyesight in daylight hours would have a somewhat reduced ability to appreciate the existence of the hole in the ground because of its proximity to the sleeper. It was the fact of darkness and lack of lighting which meant that the ability to appreciate the danger was extremely low. Recalling the words of the joint judgment in Brodie emphasised above, the risk here was foreseeable even for a person taking reasonable care for her own safety.
For completeness on this point, I note the plaintiff’s vision was perhaps less than other patrons with better eyesight. The medical records tendered by the defendant reveal that the plaintiff was awaiting cataract surgery in the left eye and had experienced blurry vision in September 2008. Ms Thompson’s evidence also indicated an awareness that the plaintiff’s eyesight was not as good as her own.
However, the fact that the plaintiff had driven herself to the Inn indicates that her eyesight was adequate to perform the task of driving at night, and the occupier would have to expect people with all sorts of varying degrees of vision to attend the Inn and cross the car park to get to it.
These features all affect the likelihood of the risk materialising. In Upper Lachlan Shire Council v Rodgers [2012] NSWCA 259 (Upper Lachlan), Allsop P (as his Honour then was) considered circumstances where a person in a public car park tripped over a log at shin height, that acted as a barrier to further movement by cars. In that case, the car park was in complete darkness and it was accepted that there was no light provided by the defendant.
Allsop P (with whom Campbell and Barrett JJA agreed) stated at [17] that a person who had parked where the plaintiff had would be required to navigate a distance without any light at all in an area where there was a low-lying hazard over which one could easily trip and fall. There was a reasonable probability that harm would occur. The risk was plainly not insignificant. People can be injured badly in falls on hard surfaces.
On the question of the likely harm and its gravity, McHugh JA statement in Phillis v Daley (albeit in dissent) at 78 is to similar effect:
…common experience teaches that, when a person overbalances and falls even a small distance onto a hard surface, injury to the ankle, foot or lower leg is a real possibility.
Here, the prospect of a 63 year old woman coming to grief in stepping over a sleeper into a hole in a dark car park, even taking reasonable care for her own safety, was reasonably foreseeable and the harm was plainly not insignificant, as observed in both Upper Lachlan and Phillis v Daly.
What the second defendant should have done in response to the risk
The fact that a risk of an ankle injury was reasonably foreseeable and not insignificant is a necessary precondition to establishing liability (see s 43(1)(a) and 43(1)(b) of the Act above), but as is clear from s 168 of the Act, this does not establish liability in negligence.
In Brozinic, Master Mossop stated at [58]:
…The fact that a risk materialises and may have significant consequences for an individual is relevant to the question of the reasonableness of the response to the risk but must not divert the Court from the process of assessing what a reasonable person in the defendant’s position would have done. …
The failure to eliminate a risk that was reasonably foreseeable and preventable is not necessarily negligence: Tame v New South Wales [2002] HCA 35; 211 CLR 317 at [99]. In some circumstances, faced with a reasonably foreseeable risk of harm, it may nevertheless be reasonable for an occupier to do nothing.
There is generally a degree of precision required in identifying what the defendant should have done and this is where a key difficulty with the plaintiff’s case arises. Phillis v Daly provides some assistance in this regard, per Mahoney JA at 72 (emphasis added):
A court required to determine whether what the defendant did was wrong may approach the matter in terms not of generality but of particularity. The court is required to identify what is the thing which the defendant should or should not have done and to examine, in terms of reasonableness, the acceptability of it. Such an approach does not, of course, provide a ‘slot-machine test’, that is, a test by the application of which without more a decision flows; the test of reasonableness involves a value judgment. But, by framing the question in terms of what actually happened and what caused it to happen, this approach enables the court to focus upon what precisely it was that the defendant should or should not have done and to judge that.
The plaintiff’s case on liability, as I have understood it, was relatively simple. There was a hole in the ground. That was a hidden danger of which the occupier was aware or ought to have been reasonably aware. It should have been either removed through proper maintenance or minimised, through better lighting in the car park. The absence of the lighting meant that the plaintiff, who was trying to look out for her own safety, could nevertheless not see the ground properly and this caused her to step in the hole, which caused her to fall.
It is one thing to say that the dirt car park was poorly lit or that the ground was uneven, or even that there were depressions in the dirt that were big enough to be described as a pothole. However, as discussed above, the obligation on an occupier is not to make an outdoor unsealed car park devoid of all risk at night.
As will be seen in the following reasoning, there is insufficient evidence to establish what a ‘reasonable occupier’ would have done in response to what I have found to be a reasonably foreseeable risk, so as to be able to determine whether the second defendant failed to meet that standard. Section 168(2)(g) of the Act requires an assessment of the burden on the occupier of removing the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.
The vague description of the hole causes difficulties for this assessment. Although the plaintiff has the benefit here of my acceptance of her evidence that there was a small shallow hole the size and shape of a dinner plate, that description is still difficult in terms of proof that there should have been a better system of maintenance to not only identify the hole, but repair it.
While I am prepared to find that better maintenance of the car park was required to assist patrons to the Inn at night (particularly given that was the peak trading time for the Inn), I am unable to be satisfied on the evidence that in the circumstances of this case, an occupier acting reasonably would have taken the precaution of identifying and repairing every small hole, of shallow depth, on the surface of a dirt car park (see s 43(1)(c) of the Act).
There is no evidence that the occupier knew about any hole. It could not repair something it did not know about.
Was the existence of the hole something the occupier, acting reasonably, ought to have known about? The evidence did not establish that it was. There was cross-examination of the defendant’s witnesses as to the frequency with which the car park was maintained, and the system of inspection and repair emerged as casual and ad hoc. However, the evidence did not establish that the occupier ought to have conducted more frequent examinations of the car park generally, and in particular of the area on either side of the sleepers for small shallow holes.
In the absence of any evidence as to what a reasonable occupier would have done, my own evaluative judgment is that such a person, inspecting regularly and thoroughly enough to discover irregularities in the car park surface and taking all reasonable care to maintain the surface of the car park, would not have considered it necessary to fill every small shallow hole behind a sleeper in order to guard against the risk of injury arising from a misjudged step.
This was an uncovered dirt car park attached to an Inn, with all the rustic charm that accompanies that setting and the appeal that attracts patrons to such an establishment on an autumnal Friday night in Canberra. The car park surface was inherently imperfect. I accept that aesthetics and rustic charm cannot be taken too far in the calculus of negligence. As Samuels JA stated in Phillis v Daley at 68, it ‘would not do to prefer the beauty of the uncaged tiger notwithstanding the carnage likely to be wrought by its unbridled appetite’. The point is that this was not an urban environment, such that the occupier would be held to the maintenance (and lighting) standard of a concrete car park attached to a supermarket. I do think that such a consideration finds some resonance in s 168 of the Act as part of the circumstances or the nature of the premises, and perhaps in s 43, through the words ‘social utility of the activity creating the risk of harm’.
In any event, it was not submitted that either the car park should have been paved or that ‘all reasonable steps’ included removing the sleepers so as to make any holes that had developed around the sleepers more easily visible. The submission was that the hole should have been discovered and repaired. The insufficient evidence to establish that standard discussed above means that the case based on lack of maintenance fails.
As to any requirement to warn, the pleaded case about a failure to warn of the hazard as a means of accident prevention fell away on the evidence. Ms Thompson’s evidence was that she gave the relevant warning to watch out for potholes to the plaintiff. It is unnecessary to decide whether the second defendant’s duty of care required it to provide a warning sign because it plainly would have made no difference in this case. In any event, there was no evidence as to how and where a warning should have been given or the form it might have taken: c.f. Hoyts Pty Ltd v Burns [2003] HCA 61; 201 ALR 470 per Kirby J at [39].
The real question is whether, given the imperfect surface of the car park, the reasonable occupier would have ensured the car park had better lighting. As stated above, the evidence on this issue was insufficient to establish the standard by which a reasonable occupier was to be judged. That in turn prevented an assessment of the burden of meeting that standard.
This is not a case where there was no light at all so that no one could see the ground. All witnesses said they could see the sleepers. Some witnesses said they could see the ground and one witness said she could see the potholes on the ground. In that way, the facts of this case are different from those in Upper Lachlan.
If it be accepted that the lighting was poor and that it should have been improved, what was required? How bright is reasonable in the circumstances? If the plaintiff contends for improved lighting, being something more than what existed, but presumably less than the extreme position of full stadium lighting, the second defendant is entitled to know what level is being suggested as reasonable.
These questions are left drifting on the evidence and senior counsel for the plaintiff fairly did not press this aspect in final submissions. There was no expert evidence led on lighting levels. There was not even an Australian standard put into evidence or evidence of other lighting levels in dirt car parks in the ACT. The Court cannot speculate on such matters.
This discussion is not intended as any criticism of the plaintiff. The decision may well have been strategic or forensic, given my observations on causation below. It is simply to highlight that if an allegation of inadequate lighting is made, in this particular case information of the type described would have been necessary to give content to that allegation, because part of the balancing equation on reasonableness is the cost of the improved lighting.
In the circumstances of this case, to achieve a particular level of lighting that would reach the location where the plaintiff fell, it may have been necessary not just to buy more powerful light globes or redirect an existing spotlight, but to install lamp posts in different areas in the car park. The feasibility of that being done is not limited to cost. There are environmental and planning factors that may be relevant. That is why the Court cannot speculate as to what would have been the reasonable precaution here.
Without such information or evidence, the Court is unable to make a finding on what level of lighting would have constituted ‘all care that was reasonable in the circumstances.’
The result is that, though herself acting with all due care for her own safety, the plaintiff has not established a failure by the second defendant to discharge its duty of care.
No causal link established
Consideration of whether any breach of duty of care caused the accident is unnecessary given the findings above. However, in the event that I am wrong, there may have been a further difficulty with establishing causation.
A finding that there was an obligation on a reasonable occupier to conduct more frequent and more thorough inspections so as to discover small shallow holes would have been insufficient for the plaintiff to succeed in proving that the breach caused the fall. There was some evidence that the occupier would have repaired holes of 3 cm depth, produced when car tyres spun on the gravel. However, that was not linked back to the type of hole described by the plaintiff. I did not draw the inference that was the type of hole into which the plaintiff stepped, because the evidence of Mr Rule was that the holes that developed from tyres spinning only developed in a different spot in the car park. On the evidence as it fell, a better system of detection is unlikely to have remedied the hole, and thus unlikely to have removed the cause of the accident.
A causal link could only have been established by a finding that the second defendant fell short of the standard of a reasonable occupier maintaining the car park so that small shallow holes were regularly filled in.
Similarly, as to any case based on inadequate illumination, the lack of sufficient evidence on lighting discussed above is unlikely to have made any difference to the overall outcome of the plaintiff’s claim.
Given the size and location of the particular hole, it would have been difficult to establish that improved lighting to a reasonable level would have prevented the fall. The plaintiff was walking on gravel or dirt between cars, near a large tree on one side and bushes on the other, and stepping behind raised sleepers, with all of those features potentially affecting the shadows in the spot where the plaintiff put her feet. The case was not that the row of sleepers ought not to have been present and one cannot escape the fact that the raised sleeper obstructed the plaintiff’s view of any small hole as she approached, at least in part. It may have been that the same result would have occurred even with better lighting. Indeed, it may have occurred even in broad daylight.
Damages
Consideration has been given to the question of damages in the event that I am wrong, although what follows is in somewhat shorter form given that the findings as to liability above dispose of the proceedings.
As submitted by senior counsel for the second defendant, a defendant can only be liable in damages for injuries caused by its negligence. Where it is alleged that there were other causes of the harm suffered, including both concurrent and pre-existing conditions, the evidential onus is on the defendant to establish that fact. The Court is required to determine the proportion of the plaintiff’s condition for which the defendant is liable: Thompson v Smiths Shiprepairers Limited [1984] 1 QB 405; State of NSW v Burton [2006] NSWCA 12 at [75] (per Basten JA in dissent, but not on this principle); Papp v Finley & Insurance Australia Limited [2015] ACTSC 74 at [127].
I have also had regard to the discussion by Mossop AsJ (as his Honour then was) in Cressy v Miloriad [2016] ACTSC 303 at [70]-[74], which is to similar effect.
Injuries suffered
The plaintiff suffered a broken ankle as a result of the accident; specifically, fractures of the left distal tibia and fibula. She required surgery and was in a cast for seven weeks.
She was in significant pain, suffered swelling in the left leg, had a severe reaction to anaesthetic, and felt pain in her lower back.
There were complications, including the development of an ulcer due to pressure from the cast. This necessitated re-admission to hospital for further treatment over eight days.
It was claimed that the injury also exacerbated the effect of osteoarthritis in the plaintiff’s right knee, caused by overcompensation and an altered gait pattern, and that this necessitated a total replacement of the right knee in October 2011.
The knee replacement was planned before the injury in the car park. The plaintiff submitted that the surgery occurred earlier than would otherwise have been required. In this case, the earlier onset of the symptoms requiring the knee replacement does not appear to have made any significant difference to the damages to be awarded and I would not have adjusted the amount to take account of the knee replacement.
Pre-existing injuries
The plaintiff was not entirely fit and well before the accident. As alluded to above, she had wide-spread osteoarthritis in a range of areas in her body, including in her left foot. She had degenerative cysts in the talus of the left foot, diagnosed in January 2009. These have increased in size and account for the arthritis in the ankle joint.
There was also some evidence of instances of depression, although I do not think the evidence rose as high as to constitute a pre-existing injury.
Ongoing injuries
The plaintiff’s fractures have healed in an anatomically correct position. The plaintiff has detailed a long list of ongoing physical disabilities which may be broadly summarised as ongoing pain in the left foot, necessitating daily medication for pain, lack of mobility and lack of function.
There was initially a claim that an ankle fusion was necessary because of the accident. The confusion had arisen because the type of fracture was initially thought to be a plafond fracture, however it transpired during the hearing that in fact the fracture was a spiral fracture of the radius. Ultimately, the consensus between the experts, as I understood it, was that the fusion was not due to the fracture caused by the fall.
I accept that the plaintiff has developed chronic adjustment disorder with mixed anxiety and depressed mood. I accept that the injury of the fall and the ongoing pain and lack of mobility arising from it contributed in part to this disability.
The approach I have taken (being the same approach taken in the evidence and by the parties) is to assess damages on the basis that the second defendant was wholly responsible for all of the consequences of the plaintiff’s underlying condition and then to apply a percentage discount to various components of the damages (specified below).
The evidence I primarily relied upon in order to determine apportionment in respect of the plaintiff’s ongoing injuries was that of Dr Graeme Griffith, consultant surgeon, who considered that the fracture was probably not a major factor in the plaintiff’s persisting pain. In a report dated 28 April 2013, Dr Griffith was asked to apportion contribution and considered that the ‘distal tarsal pathology may be contributing 70% of her current symptoms, the remainder a sequel to the work related index injury’. The reference to ‘distal tarsal pathology’ was subsequently explained by Dr Geoffrey Stubbs, orthopaedic surgeon, as a reference to the collapse of the talar dome (flat feet) but also potentially including other arthritis in the hind and mid-foot. Relevantly, those injuries are not attributable to the accident in the car park.
Dr Geoffrey Speldewinde, consultant in rehabilitation, pain and musculoskeletal medicine, also considered that although the plaintiff’s left ankle fracture had resolved, the injury aggravated her pre-existing significant osteoarthritis. Dr Speldewinde considered it reasonable to suggest that the impact of the fall continues to contribute to a small extent to the plaintiff’s deteriorated mood, physical dysfunction and ongoing pain. He was of the opinion that only a minority of the ongoing left ankle and foot pain into the future could be directly and solely attributed to the effects of this injury.
Dr Tim Ho, pain medicine and rehabilitation medicine physician, would have apportioned the contribution of the initial injury to the ongoing pain at 50%. However, I do not think that the evidence overall supports that percentage, primarily because of the significant widespread osteoarthritis present, which was already causing pain, at the time the accident occurred.
On the basis of the medical evidence, I would have apportioned the ongoing issues as 30% attributable to the fall. Such a proportion is consistent with Dr Griffith’s evidence, noting that apportionment is not an exact science and was difficult in the context of this case, due to the overlap between the injury and degenerative condition.
Non-economic loss (general damages)
The plaintiff sought general damages in the sum of $150,000. The assessment of compensation general damages relies very heavily on the impression made by the plaintiff on the finder of fact: Tsueneaki v Stewart [2013] ACTCA 34 at [30].
The parties did not rely on any authorities said to be comparable with a view to establishing any particular range of general damages (see s 99 of the Act).
The injuries suffered, detailed above, and the disabilities that have followed were each of some severity. The plaintiff has had over seven years of pain and suffering, admittedly not all entirely attributable to the injury, and with the initial fracture healing. She has reduced mobility, will suffer ongoing pain and her psychological state has been affected, which I have found is in part attributable to the injury. Her life expectancy is said to be 17.2 years.
Taking those matters into account, I would have awarded $125,000 in damages for non-economic loss, allocating $85,000 to past non-economic loss.
Economic loss
No claim for economic loss was made.
Past out of pocket expenses
The out of pocket expenses were agreed at $6,964.06.
Future out of pocket expenses
In light of my finding on apportionment above, I would have allowed a claim for future medical expenses including consultations with a general practitioner, physiotherapy, pharmaceutical expenses, psychological counselling, occupational therapy, pain management and psychiatric assessment.
The plaintiff claimed $28,843.55, which included a reduction by 50% in some instances by way of apportionment. I would have assessed each of the plaintiff’s itemised future medical expenses at a 30% apportionment of the figures contained in the plaintiff’s amended schedule of damages. I would have thus allowed $12,514.91 for future medical expenses.
I would have allowed a buffer for the plaintiff’s future transport needs in order to attend medical appointments of $1,500.
I would have also allowed a buffer of $2,500 for home modifications and equipment.
Gratuitous or domestic assistance
The relevant principle was helpfully set out in the second defendant’s closing submissions. An injured plaintiff is entitled to cover an amount equivalent to the reasonable commercial cost of domestic services which have been provided in the past, and would be provided in the future: Griffith v Kerkemeyer (1977) 139 CLR 161; Van Gervan v Fenton (1992) 175 CLR 327 (Van Gervan); CSR v Eddy [2005] HCA 64; 226 CLR 1. The true basis of the claim is the need of the plaintiff for the services and the plaintiff does not need to show that the need is or may be productive of a loss: Van Gervan at 332-333.
The parties were initially significantly at odds in relation to this aspect of the claim for damages. The plaintiff ultimately sought $49,000.50 for past domestic assistance, and $46,736.76 for future domestic assistance. Those sums were based on the detailed assessment of Ms Diane Prattley, senior occupational therapist. The plaintiff divided the period up into thirteen different stages. No claim was made for assistance during stages 8, 9 and 11. These were periods when the plaintiff was in hospital (so did not require any gratuitous assistance). Stages 5, 6, 7, 10, 12 and 13 included a 50% apportionment deemed appropriate by Dr Ho.
Dr Seamus Dalton considered that assistance would have been required for the period 15 May 2009 to 15 August 2009 (being 16 weeks) for four hours per week and then from 16 August 2009 to 16 November 2009 (being 12 weeks) for two hours per week. Dr Dalton considered that there was no ongoing injury related need for services.
I would have found that the injury and its ongoing consequences contributed to the need for gratuitous services in the proportion of 30%.
The plaintiff’s claim for past voluntary assistance was detailed, credible and supported by evidence. I would have accepted the submitted calculations, save as to insert a 30% apportionment rather than the 50% claimed for stages 5, 6, 7, 10, 12 and 13. Accordingly, I would have awarded damages for past voluntary assistance in the sum of $35,059.70
Based on the same reasoning, I would have awarded damages for future assistance (voluntary or commercial) in the sum of $28,042.06.
Summary of findings on damages
Accordingly, had the plaintiff succeeded on liability, I would have awarded damages in the sum of $211,580.70.
Interest would have been allowed on that sum.
Conclusion
This is a case where the plaintiff took reasonable care for her safety but still could not avoid something she did not see in the dark. Certainly, businesses who invite people to their premises at night have a responsibility to ensure that they take all reasonable steps to ensure the safety of their patrons. However, the fact that the plaintiff fell at premises that were not as safe as they could have been (either because they were not as well-maintained or as well-lit) does not then translate into liability in negligence. On the evidence before the Court, neither the second defendant nor the third defendant were shown to have failed to act with all care that was reasonable in the circumstances so as to cause the accident. Accordingly, the second and third defendants are entitled to judgment in their favour.
Costs are in the discretion of the Court and ought follow the event on this occasion. If either party wishes to seek that the Court make different orders as to costs, they are required to make any application within seven days. If no such application is made, the operative order will remain that the plaintiff pay the second and third defendants’ costs.
The orders of the Court will be:
1. Judgment for the second and third defendants.
2. The plaintiff is to pay the costs of the second and third defendants.
3. Order 2 is stayed for 7 days.
| I certify that the preceding 156 [one hundred and fifty-six] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam. Associate: Date: 27 February 2018 |
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