Jones v Whyalla Basketball Association Inc No. Scgrg-98-983 Judgment No. S131

[1999] SASC 131

JONES v WHYALLA BASKETBALL ASSOCIATION INC.

[1999] SASC 131

Full Court:  Doyle CJ, Bleby and Martin JJ
1 DOYLE CJ.     I agree with the orders proposed by Martin J.  I agree with his reasons for those orders.
2 BLEBY J.                  I agree with the orders proposed by Martin J and I agree with his reasons for those orders.
3 MARTIN J.      The first respondent ("the respondent") was the occupier of premises situated at the Jubilee Park Showgrounds, Whyalla.  On Saturday 11 and Sunday 12 February 1995 it conducted a junior basketball carnival at the stadium in the showgrounds.  The respondent arranged for the second respondent to provide a mobile liquor selling booth for use by the respondent in selling liquor at the carnival.
4 The appellant attended at the carnival on Saturday, 11 February 1995.  He was injured immediately upon leaving the stadium.  His action for damages against the respondent was dismissed by a District Court Judge on the basis that the respondent did not breach the duty of care which it owed to its patrons at large including the appellant.  The appellant did not pursue the claim against the second respondent.
5 The appellant appeals against that dismissal on a number of grounds.  He has discontinued his appeal against the second respondents. 
6 The learned trial Judge described the area adjacent to the entrance to the stadium where the appellant was injured in the following terms:
"The main entrance of the stadium was at about the centre of its southern side.  An entrance foyer protruded out about the width of a large door to the south.  (In the course of the evidence virtually no measurements were given for anything.)  On the eastern end of this foyer was the entrance door and to its east was a concrete path the width of the foyer running to the south eastern corner of the stadium.  About 1-2 metres east of the south eastern corner of the foyer a metal pipe handrail ("the handrail") at about waist height ran along the southern edge of this path to the eastern end of the stadium.  A concrete path of about similar width also ran back west from the western extremity of the handrail along the southern wall of the foyer, and at the western end of the foyer and this path another concrete path went off at right angles to the south down to a large paved carpark some distance to the south of the stadium.  To the south of the stadium, and within the bounds of these paths, was a substantial picnic area covered in freshly mulched bark and containing some trees, tables and bins.  To the south of the picnic area was the carpark mentioned above.  To the knowledge of the 1st defendant it was a common practice for some people parking in that carpark to walk across the picnic area to the stadium entrance, although the 1st defendant preferred that they use the concrete paths."
7 The liquor selling booth was a substantial caravan which was painted red with some bold white and black advertising signs on it.  On one side were two flaps which could be raised to expose a counter for selling liquor.  It had four wheels and could be towed like a trailer.  The drawbar which protruded some distance at its front was comprised of two pieces of metal in a "V" shape which came together at an apex where there was a coupling device to attach it to a towing vehicle.  That drawbar has consistently been referred to as "the A frame".  It was painted black.
8 Initially the booth was operated on the northern side of the stadium in conjunction with other similar booths selling ice-creams and soft drinks.  During Saturday afternoon a dust storm blew in from the north which necessitated closing the entry and exit doors to the stadium on the northern side and shutting down the booths.  A number of the respondent’s organising committee informally decided to shift the booth to the southern side of the stadium.  It was towed to the southern side and parked on the picnic area a short distance to the east of the eastern end of the foyer and alongside the handrail.  The offside and selling side of the booth was about one foot south of the handrail in order that patrons could stand on the concrete path on the stadium side of the handrail and, over the handrail, buy liquor across the counter.  So that the floor of the booth was level, a yellow plastic Coca-Cola crate was placed under the apex of the A frame.
9 The parking of the booth in that fashion resulted in the A frame and its coupling device protruding west beyond the western end of the handrail and into the area which was the natural pathway from the picnic area to the stadium entrance door.  The learned trial Judge recognised that the extent to which it extended beyond the western end to the handrail and protruded into that pathway was of crucial importance.  His Honour made the following unchallenged finding:
"It is impossible to make a precise finding.  It was probably by a foot or two, but it was less than half way across the distance between that western end of the handrail and the projection of the eastern side of the foyer".
10 The chief organiser of the carnival on behalf of the respondent was a Mr Stephen Baulderstone.  From his previous employment, Baulderstone was generally familiar with occupational safety issues.  The learned trial Judge found that Baulderstone and others who were assisting on behalf of the respondent appreciated that some potential danger was created for pedestrians by the protruding A frame.  His Honour found that the agents of the respondent set about addressing the potential danger in the following fashion:
"To address the problem the agents of the first defendant (the respondent) who set up the booth in its new position obtained some orange bunting safety flags on a piece of cord and strung them from the top western corner of the handrail across to the coupling at the apex of the A frame and then west to a vertical star dropper which was about adjacent to the projection of the eastern side of the foyer and the southern edge of the path running alongside the southern side of the foyer and then back at a somewhat higher level to the south-western corner of the booth.  This bunting barred anyone walking directly north from the picnic area into the concrete apron in front of the entrance door.  A person walking north across the picnic area towards the entrance door had to deviate slightly west and to go around the star dropper."
11 It followed from his Honour’s finding, and his Honour refers to this matter indirectly in a later finding, that persons leaving the stadium through the entrance door at the eastern end of the foyer who wanted to walk south across the picnic area were required to deviate to the west in order to walk around the coupling on the western end of the A frame.  It was agreed during the course of submissions that members of the public were required to use the entrance at the eastern end of the foyer as the door at the western end was restricted to players and officials.  In essence, a member of the public leaving the eastern entrance door turning immediately to the right in order to walk south across the picnic area was required, within a very short distance, to deviate right again in order to avoid walking into the A frame. 
12 There was no artificial light in the booth.  Those working in it and patrons had to rely on artificial light sources external to the booth.  There were two single fluorescent tubes mounted on the southern exterior wall of the stadium in the vicinity of the booth which gave some light to that area.  A powerful light had been mounted on a stobie pole in the south-eastern corner of the picnic area adjacent to the carpark, but that was a considerable distance from the area in question.  The respondent had also placed a spotlight on the roof of the stadium which shone in the general direction of the entrance and the booth.
13 The learned trial Judge found that the external sources of light were adequate for selling drinks and handling change at the booth.  Of importance, he found that the booth was placed where it was with its A frame protruding beyond the end of the handrail so as to maximise the light available for those in and at the booth.  In his Honour’s view, if the booth had been moved further east, that light would not have been as good. 
14 The appellant and his friends had parked to the south of the picnic area and walked north across that area to the stadium entrance.  The booth and bunting were then in position and they had to walk around the star dropper mentioned previously to reach the entrance.  The learned trial Judge found that the appellant must have seen and been aware of the existence and situation of the booth and the bunting.  From other evidence, his Honour found it was likely the appellant was outside the stadium during the course of the evening. 
15 Between about 9 pm and 10 pm, the appellant and his friends left the stadium to walk to their car.  They left through the eastern entrance of the foyer intending in a general way to follow a similar route back to the car as they had taken when they arrived.  The appellant’s friends were walking a short distance ahead and were not watching him.  They must have deviated to the west to go around the star dropper and the bunting.
16 The learned trial Judge found that the appellant was injured as a consequence of walking into the A frame.  He then made the following findings which are not challenged:
"Precisely what then happened to the plaintiff is unclear.  No-one else saw it and he does not have a reliable memory about it.  It appears that he walked into the A frame.  This would probably account for the two centimetre laceration which was found on his left shin when he was examined at the Whyalla Hospital later that night.  For some reason he fell in the vicinity of the A frame and the bunting and in putting out his right arm to break his fall he injured his right elbow     the most likely explanation of his accident is that he walked straight into the bunting and the A frame at some speed.  It is unclear what part of them he hit, but presumably it was about where the A frame protruded past the western end of the handrail."
17 In dismissing the appellant’s claim for damages, the learned trial Judge said:
"I find that the 1st defendant knew that members of the public, such as the plaintiff, walked north from the carpark across the picnic area immediately south of the stadium entrance.  It owed a general duty of care to its patrons, including the plaintiff, to take all reasonable steps to protect them from any danger in the state of the premises, such as from an A frame being left partly across a known pathway.  I find that the bunting which was erected was a sufficient warning and indication to users of the path that there was a hazard there.  The lighting in the vicinity was adequate to enable a person of ordinary visual accuity to see clearly the bunting and the A frame ahead of them.  There was nothing unreasonable in making persons wanting to walk south across the picnic area deviate slightly to the west so that the booth could have better lighting.  Accordingly, I find that the 1st defendant did not in the circumstances breach the duty of care which it owed to its patrons at large including the plaintiff."
18 The appellant attacks that finding.  In particular, it was argued that the bunting was inadequate and poorly erected and the finding that the positioning of the booth was determined by the light available was not supported by the evidence.  Counsel pointed out that the danger could have been removed or minimised if the booth had been moved approximately one metre to the east so that the A frame no longer protruded beyond the railing fence and into the natural pathway.  It was said there was no evidence to support his Honour’s finding that less light would have been available if the booth had been moved one metre to the east.  In any event, so it was put, the danger was significant and the rectification so simple that the prospect of some diminution in the lighting if the booth was moved one metre to the east was not a valid justification for failing to alleviate the danger in that manner.
19 Although Baulderstone was asked to relocate the beer booth, he was not present when that was done.  He said there were no lights inside the booth and "...that’s the reason the booth was placed where it was".  According to his evidence only one of the two panels on the northern side of the booth was raised for the purposes of serving the drinks.
20 In cross-examination Baulderstone said the decision was made to place the van "... in an adequate area within lighting ..." and where it would be utilised.  He and others made the decision to place the bunting in position because the A frame protruded out from the booth.  As to why the booth was not positioned further to the east he gave the following evidence:
"Q.    Was there any reason why the van wasn’t positioned so that the front of the draw bar was say, level with that first post. 
 A.    Not to my knowledge."
21 John Quinn moved the booth.  He also said there were no lights inside the booth and that was the reason for having it in "... that area so the fluorescent lights out the front would actually light it up for people to change money inside the beer booth".  He recalled both panels on the northern side of the booth being open because light was needed inside the booth. 
22 As to the issue of why the booth could not have been placed further to the east, Quinn gave the following evidence:
"Q.    If we look at the plan P1 what would have prevented you parking the booth or van further to the east along that rail in front of the southern end of the stadium.
 A.    That possibly wouldn’t have been lit up as well as in that situation there, and as we said there was these - actually I don’t think you will find those fluoros are dead accurate anyway because one of them was directly in front of the beer booth flaps that they lift up to serve the beer.
 Q.    So the light available to the booth itself was better in the place you decided to put it in, is that right.
 A.    A combination of light and the caravan is lit up better itself. 
 Q.    Did you think about the fact that if you had moved it a bit further along that rail that the A frame wouldn’t have then protruded beyond the end of the rail and into the path that people might have taken to the southern carpark.
 A.    It wasn’t really a matter because it had bunting around it anyway, I mean it’s no different to doing that or putting a handrail there."
23 The evidence of Baulderstone and Quinn to which I have referred is the only oral evidence touching on the reason for not moving the booth further to the east.  That evidence does not provide a sound basis for concluding that those in charge of positioning the booth considered the possibility of moving it to the east, but felt justified in not doing so because the lighting would be adversely affected.
24 Some assistance in respect of the various issues can be obtained from video film taken by Quinn and his son in an attempt to reconstruct the scene of the accident.  Apart from using a piece of timber instead of the star dropper, Quinn said the reconstruction was "pretty accurate" and depicted the location of the beer booth within about a foot one way or the other.  Baulderstone was present when the daytime video was taken and he said the video showed the position of the van as it was on the night.
25 I have had the opportunity of viewing the video.  Accepting the learned trial Judge’s finding that on the night the booth was positioned with its northern side approximately one foot south of the handrail, it is obvious that the booth depicted in the video has been placed further than one foot from the handrail.  I make this observation recognising the difficulty of accurately assessing distances from a video such as the one I have viewed.
26 In addition, the northern side of the van as positioned in the reconstruction is not parallel to the handrail.  The north-eastern corner of the rear of the booth is closer to the handrail than the north-western corner at the front of the booth.  This has the effect, in the reconstruction, of angling the front of the booth and the apex of the A frame away from the handrail and concrete path.
27 Making all due allowance for possible distortions and other difficulties associated with assessments based on videos such as the exhibit, it is clear that if the van was positioned with its northern side about one foot to the south of the handrail and approximately parallel to the handrail, the apex of the A frame where the coupling is located would have been very close to the edge of the concrete path. 
28 Features of the positioning and height of the bunting also become clearer upon viewing the video.  The bunting was connected to the top of the western end of the handrail and, at the other end, to the coupling.  The next section was tied to the coupling and stretched west to the star dropper.
29 Quinn said he was nearly six feet in height and the A frame was about his knee height.  That evidence accords with the general impression conveyed by the video.  In the vicinity of the coupling, therefore, the bunting was at about that height.  If, however, the bunting had been fixed to the western end of the rail at one end and to the star dropper at the other, it would have been at a more reasonable height in the vicinity of waist to chest high.  Importantly, it would have prevented any person leaving the stadium through the eastern door from walking toward the coupling.  As it was positioned, however, there was no barrier preventing a pedestrian from walking toward the coupling, which in turn would bring that person into contact with the bunting and coupling at about the same time.
30 It is to be remembered that it was only a matter of a few paces from the doorway to the edge of the concrete.  The concrete was a little higher than the ground on which the crate under the A frame rested.  From the perspective of a person approaching on the concrete, therefore, the coupling and attached bunting would probably have been lower than the knee height described by Quinn. 
31 The other feature obvious from an examination of the video is the juxtaposition of the fluorescent light tubes on the southern wall of the stadium to the booth.  It is readily apparent that moving the booth approximately one metre to the east would have had minimal impact on the light available within the booth from those fluorescent lights.
32 The respondent acknowledged it was aware that a risk of harm had been created by the positioning of the A frame.  That positioning as found by the learned trial Judge clearly created a significant danger with the attendant foreseeable risk of harm.  The A frame protruded into a natural pathway immediately adjacent to an entrance and exit door through which members of the public were channelled.  The respondent was well aware that the patrons were using, and would inevitably continue to use, that natural pathway during the course of the evening.
33 In my view the steps taken to eliminate or minimise the risk of harm were clearly inadequate.  The bunting was poorly positioned and was an inadequate response to the risk that had been created.  The most obvious and simple means of eliminating or minimising the risk was to move the booth approximately one metre to the east so that the A frame ceased to protrude into the pathway.  This would have had very little effect on the light available for those working inside the booth.  Even if the lighting would have been reduced, the prospect of such reduced lighting could not justify the failure to implement that simple and effective means of eliminating or minimising the foreseeable risk of harm. 
34 The principles are not in doubt. It is important to bear in mind the difficulty and expense involved in eliminating the risk (Webb v The State of South Australia (1982) 56 ALJR 912). In my view the learned trial Judge erred in his critical findings. The respondent was in breach of its duty of care to the patrons, including the appellant. That breach resulted in injury being sustained by the appellant.

35 An assessment of contributory negligence by the appellant must then be addressed.  The appellant obviously failed to take reasonable care for his own safety.  The essence of the appellant’s contributory negligence lies in his failure to look where he was going and to see the bunting and A frame.
36 The respondent places considerable emphasis on evidence concerning the appellant’s sobriety.  The learned trial Judge found that the appellant was moderately affected by alcohol, but not rolling or common drunk.  He added that in normal circumstances it would be unusual for an adult person to walk straight into an adequately lit obstruction in his path of travel, but a significant degree of intoxication would explain this unusual behaviour and makes it the most likely explanation for the accident.
37 Given the essence of the appellant’s failure to take reasonable care for his own safety, the question of the degree of intoxication is not particularly significant.  It is appropriate to observe, however, that the evidence as to the appellant’s intoxication should be viewed with considerable caution. 
38 The learned trial Judge relied on the evidence of the respondent’s witnesses.  Baulderstone said the respondent smelt of alcohol and his eyes were glazy, but he did not notice anything about his speech or walking.  Those observations took place immediately after the respondent had been injured and, in the words of Mr Baulderstone, the respondent "got a bit nasty". 
39 Although the learned trial Judge accepted that it was the appellant who was described by the respondent’s witnesses, there was room for considerable doubt about the identification by Benford and John Quinn.  Neither knew the appellant and were relying upon associating the person they observed with the person who had later been injured.  In arriving at his view that the appellant had consumed one or two too many drinks, Michael Quinn was relying on his impression that the appellant was very loud when talking to a group of young boys and light on his feet.  He had never had any previous dealings with the appellant. 
40 Ultimately, however, the critical question is the extent to which the appellant failed to take reasonable care for his own safety.  In all the circumstances I would reduce any award by 40 per cent for the appellant’s contribution. 
41 As to assessing the appellant’s damages, the learned trial Judge made an assessment in case it became relevant after an appeal.  He accepted the evidence of the appellant and his wife in this respect. 
42 The appellant was 38 years of age at the time of the trial.  He is a qualified fitter and worked as a fitter for BHP from 1982 to 1994. He was earning $40 000 per annum in 1994 immediately before he and his wife acquired a company which conducted a carpet cleaning business in Whyalla.  The plaintiff did all the carpet cleaning work for the company. 
43 The learned trial Judge made the following findings:
"Immediately after the accident the plaintiff’s right arm was very painful.  He went to the Whyalla Hospital that night where he was given a painkilling injection in the arm and four stitches were placed in the laceration on his left shin.  He suffered a torn medial collateral ligament of his right elbow.  The elbow was placed in a plaster cast for about six weeks.  The elbow was painful and while it was in the cast he was severely restricted in what he could do with his right arm.  He is right handed.  He underwent physiotherapy.
The plaintiff went back to work on about 1 April 1995.  He was restricted initially in performing the heavier aspects of the work but gradually he resumed his full work load.  While the elbow has continued to improve, after a heavy day’s work he experiences pain in it.  He has a permanent loss of about 15% of extension of the elbow and a small permanent disability in it.
...
The plaintiff’s present earning capacity from Midgate Pty Ltd is not impaired by his elbow disability.  It is likely that he will continue in this employment.  However, if he has to go into the open labour market in the future, he will be disadvantaged by his disability.  I accept that it would substantially restrict him in returning to work in his former occupation of a fitter.  Damages for future economic loss are assessed at $6,000.
The plaintiff’s prior social and sporting activities were substantially curtailed in the weeks after the accident, but he has gradually returned to them.  Damages for non economic loss are assessed at $6,000 past and $3,000 future."
44 The appellant complains that the learned trial Judge’s assessments of the non-economic loss and future economic loss were manifestly inadequate.  The respondent sustained a significant injury and, in my view, his Honour understated the basis for the claim for non-economic loss when he referred only to the respondent’s prior social and sporting activities being substantially curtailed in the weeks after the accident.  In all the circumstances I would assess damages for the past non-economic loss at $12 000 and $8 000 for the future.
45 After deducting 40 per cent for contributory negligence, the net past non-economic loss is $7 200.  Interest of $982.36 is allowed on that net loss having been calculated at the rate of 4 per cent from the date of the accident, 11 February 1995 to the date of judgment, 9 July 1998.
46 As to future economic loss, the learned trial Judge found that if the respondent chooses or is obliged to return to the open labour market in the future, he will be disadvantaged by his disability.  His Honour accepted that the disability will substantially restrict him from returning to work in his former occupation as a fitter.  The respondent can reasonably expect a future working life in the vicinity of 25 years or more and there are numerous circumstances in which he might choose or be obliged to compete in the open labour market.  Bearing in mind his disability and the difficulty of returning to work in his former occupation, in my view the learned trial Judge has not made sufficient allowance for future economic loss.  I would assess those damages at $25 000.
47 There is no challenge to the assessment by the learned trial Judge of $1 200 for past economic loss and special damages were agreed at $611.  Interest of $196.47 is allowed on the net past economic loss of $720.00, having been calculated at 8 per cent for the period 11 February 1995 to 9 July 1998.
48 After deducting forty per cent the net figures are, therefore, as follows:-
Past Non-Economic Loss       $7 200.00
Interest       982.36
Future Non-Economic Loss     4 800.00
Future Economic Loss    15 000.00
Past Economic Loss      720.00
Interest       196.47
Special Damages  366.60
Total  $29 265.43
49 The appeal should be allowed and judgment entered for the appellant against the respondent in the amount of $29 265.43.
50 At trial, the respondent pursued a claim for contribution against the second respondent on the basis that the second respondent had a statutory duty under the Liquor Licensing Act 1985 to supervise the conduct of the business of the booth. The respondent has advised the Court that it does not wish to pursue that claim in the event that the appeal is allowed. That claim is dismissed.