John Ware Family Trust v Rati

[2005] NSWCA 336

CITATION:	John Ware Family Trust v Rati [2005] NSWCA 336
HEARING DATE(S):	13 September 2005
JUDGMENT DATE:	13 September 2005
JUDGMENT OF:	Basten JA at 1; Hodgson JA at 17; Bryson JA at 18
DECISION:	(1) Application for leave to appeal refused with costs; (2) Costs of the Opponent should be paid on an indemnity basis on and from 11 July 2005.

LEGISLATION CITED:	Civil Liability Act 2002 (NSW)
CASES CITED:	Wyong Shire Council v Shirt (1980) 146 CLR 40
PARTIES:	John Ware Family Trust T/as Best Western Caravilla Motor Inn (Claimant) Brigita Rati (Opponent)
FILE NUMBER(S):	CA 40902/04
COUNSEL:	N. Polin (Claimant) M. Thompson (Opponent)
SOLICITORS:	McCabe Terrill, Sydney (Claimant) Gerard Malouf & Partners, Parramatta (Opponent)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 264/03
LOWER COURT JUDICIAL OFFICER:	Sorby DCJ

CA 40902/04
DC 264/03

HODGSON JA
BRYSON JA
BASTEN JA

13 September 2005

JOHN WARE FAMILY TRUST T/AS BEST WESTERN CARAVILLA MOTOR INN v BRIGITA RATI

Judgment

1 BASTEN JA: In early 2003 Mrs Rati, the Opponent in these proceedings, but the plaintiff in the Court below, tripped and fell when making her way from the car park to the covered verandah of the Claimant’s motor inn in Taree in northern New South Wales. She sued the Claimant in negligence, seeking damages for injuries incurred in her fall, being primarily an impacted fracture of her right wrist. She obtained a judgment in the District Court for a sum a little in excess of $70,000.

2 Because of the amount involved, the proceeding in this Court is brought by way of an application for leave to appeal from the judgment of the District Court.

3 The draft notice of appeal and the written outline of argument provided by the Claimant suggested that there might be an issue as to the manner in which his Honour dealt with the operation of the Civil Liability Act 2002 (NSW), both in relation to the finding of liability and the assessment of damages. Although the operation of this still recent legislation can give rise to issues of principle, this ground of challenge was not pursued, understandably in the circumstances of the case.

4 Rather, the Claimant based its argument on three inter-related propositions. The first concerned the adequacy of the lighting of the area where the fall occurred. The second issue concerned the failure by his Honour to articulate satisfactorily the assessment of risk and possible means of obviating the risk as required by Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48. Thirdly, it was said that his Honour failed to demonstrate that additional lighting would have avoided the risk of the injury which in fact eventuated.

5 The short facts of this case are that the Opponent and her husband were returning to the motor inn at about 11pm. The night was dark and it was raining heavily. In accordance with its standard procedure, the management had switched off all outside lights at 11pm. This practice was said to have been adopted in deference to the wishes of guests wishing to sleep without undue illumination. As a result, the only light available in the parking area in front of the motel rooms was that from street lighting.

6 The photographs in evidence demonstrate that the lip of the verandah of the motel was painted white and that, attached to the bitumen surface of the car park, running virtually unbroken and parallel with the verandah, were half logs, also painted white, with some gold striping. The purpose of the logs was to provide guidance to drivers as to where to stop their vehicles.

7 The Plaintiff and her husband gave evidence that, on the night in question, the heavy rain was causing water to pool in the car park. As a result, when she got out of the car, the water entered her shoes. Although she had earlier crossed the area where the log was situated, in daylight, she was unable to see the log at night as she moved towards the verandah, because it was covered by water. As a result, she tripped on the log and fell.

8 The evidence of the Plaintiff, as indicated at trial, was that the water was approximately 6 inches deep. Her husband indicated that the depth was “almost” 80-100 centimetres. On that evidence, there might have been a serious issue as to the adequacy of the drainage system for the car park, but as the Claimant correctly noted, that was not the basis on which the case was run, nor the basis on which his Honour found for the Plaintiff.

9 Both sides filed reports by experts as to the adequacy of the lighting. One of the proposed grounds of appeal concerned the admission, over objection, of the reports prepared on behalf of the Plaintiff. It was suggested that the expert was not independent, because he had undertaken to prepare the report on a speculative basis, acknowledging that his fees would not be paid unless the Plaintiff were to succeed. It was also suggested that he did not have the necessary qualifications to comment on the adequacy of lighting. These complaints were somewhat peripheral to the thrust of the Claimant’s arguments in this Court and the trial judge gave no reasons for admitting the evidence. In the circumstances, leave should not be granted to agitate the ground relating to admissibility.

10 The other ground proposed to be raised in relation to the expert evidence is that it did not support a finding that the lighting was inadequate, and that in any event the trial judge made no such finding. The evidence of the experts was primarily directed to an assessment of the state of illumination provided by the street lighting, as tested against the relevant Australian Standard. There was a dispute between the experts as to how the Standard should be interpreted and, indeed, how the light-meter readings should be addressed. Neither expert was called to give oral evidence, with the result that his Honour cannot be criticised for not making detailed findings in relation to the issues in dispute. The extracts from the Australian Standard, annexed to one of the reports, were not readily comprehensible without explanation by someone having the relevant expertise.

11 The evidence of the Plaintiff and her husband, together with the actual light-meter readings obtained by the experts, provided a sufficient basis to allow the trial judge to determine that the state of illumination of the relevant area of the car park, on the night in question, was inadequate.

12 The relevant finding of the trial judge was expressed in the following terms:

“It would have been possible for the defendant to leave the outside lights of the motel on and install separate lighting in the car park for patrons arriving at the motel at a late hour. Extra lighting, and lights left on would be neither impractical or onerous in the circumstances.”

His Honour continued that the Defendant should have foreseen that “a person such as the Plaintiff might not see such white logs, that is in pouring rain with the logs covered in water without adequate lighting in the area of the car park”.

13 The force of the Claimant’s challenge goes to the combination of these two propositions. It is that his Honour made no clear finding as to what, if any, additional lighting would have been required, nor as to whether that lighting would have allowed the Plaintiff to see the log if it were truly “covered in water”. Further, the Claimant says that the only evidence about water pooling in the car park was that it had occurred only once in some two years. This, it was submitted, was an important consideration in determining what would have been reasonable steps for the Claimant to take in order to obviate this particular risk of injury. Finally, the Claimant noted evidence that keeping the lights of the motel on would not necessarily have provided useful illumination of the area where the logs were situated, because the lighting was high under the awning which covered the verandah.

14 The complaint that the reasons provided by the trial judge did not deal with these issues has some force. In particular, his Honour’s finding that the logs were covered in water, if understood literally, would cause something of a dilemma in relation to the Plaintiff’s case. On the one hand, it would demonstrate why the Plaintiff did not see the log on which she tripped and why she might not be expected to avoid it, but it also raises doubt as to how more effective lighting would have assisted her.

15 Despite these concerns, in my view this is not an appropriate case to grant leave to appeal. The fact that all of the motor inn’s lights were turned off, together with the evidence of the experts as to the level of illumination provided by the street lighting, provided a sufficient basis for his Honour’s finding that this was the cause of the accident, in the circumstances that prevailed. It seems unlikely that the existing motel lights, if they had been turned on, would not have provided some significant additional illumination. Further, given that the logs were painted white, it seems probable that, even if the water were about the same depth as the top of the logs, the additional illumination would have made a significant difference to the visibility of the logs. If his Honour in fact held that additional lights should have been installed on the car park side of the verandah, he did not have to accept that they would be ineffective because of the vine growing over the trellises on the car park side of the verandah. His Honour would have been entitled to conclude that the cost of such additional lighting would not have been unreasonable in the circumstances. The fact that such heavy rains were unusual, does not mean that adequate illumination in a car park after 11pm might not have been required, even in more temperate weather.

16 No challenge was made to the assessment of damages, nor was any substantial issue raised with respect to the finding that the Plaintiff was not contributorily negligent. Accordingly, in my view, the application for leave to appeal should be refused, with costs.

17 HODGSON JA: I agree with Basten JA.

18 BRYSON JA: I agree with Basten JA.

19 HODGSON JA:

Application for costs

20 In this matter, although it would have been open to this Court to take into account the earlier offer in the exercise of its discretion, on the whole we are of the view that the appropriate order is that the costs of the opponent should be paid on an indemnity basis on and from 11 July 2005.

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