Joseph Dilettoso v Strata Corporation 10135 Inc No. SCGRG 95/1451 Judgment No. 5283 Number of Pages 4 Negligence Dangerous Premises

[1995] SASC 5283

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA WILLIAMS J

CWDS
Negligence - Dangerous premises - Liability of occupier to a trespasser - whether presence of trespasser reasonably forseeable - nature or extent of the danger. Wrongs Act sl7c, sl7c(6), sl7e, sl7b, sl7c(1),sl7e(2), referred to. Eyres v Butt (1986) 2 Qld R 243, distinguished. Indermaur v Dames (1866) LR 1 CP 274 discussed. Hackshaw v Shaw (1984) 155 CLR 614; Australian Safeway Stores v Zaluzna (1987) 162 CLR 479, considered.

HRNG ADELAIDE, 13 September 1995 #DATE 21:10:1995 #ADD 27:11:1995

Counsel for appellant:     Mr Difazio

Solicitors for appellant:    Molchey and Partners

Counsel for respondent:     Mr G Muecke

Solicitors for respondent: Lawson and Downs

ORDER
Appeal dismissed.

JUDGE1 WILLIAMS J This is an appeal by a plaintiff from the decision of a Special Magistrate sitting in the civil jurisdiction of the Magistrates Court at Adelaide on 14th July 1995; the learned Special Magistrate dismissed the plaintiff's claim for damages for personal injury suffered by him as a consequence of a fall.

2. The plaintiff, a trespasser in the defendant's carpark at 181 Gilles Street, Adelaide, on the night of 27th May 1994, tripped over a flower box which was part of a kerbing system which divided the individual carparking spaces into groups. The flower box is created by a raised concrete border, estimated by the Special Magistrate to be 4" to 5" in height. The Magistrate described the border as being "similar in construction to the raised kerb in any suburban or city street".

3. The defendant was the occupier of the abovementioned premises which abut the southern side of Gilles Street; the premises comprise six office units, which are serviced by about 20 carparking spaces within the property and adjacent to its eastern boundary. A portion of the premises is formed into a roadway which runs in a southerly direction through the premises from Gilles Street, with the parking spaces lying generally to the east of the roadway and the office units lying to the west of the roadway. Concrete fingers subdivide the carparks into groups and the flower box in question is incorporated into a finger. The layout appears from the diagram in exhibit D1 and the photographs P1A and B.

4. The plaintiff parked his car in the park whilst he attended other nearby premises. It was about 6.00 p.m. and getting dark when the plaintiff left his vehicle. The plaintiff had no authority to park his car in the carpark or to be upon the defendant's premises.

5. Shortly after 9.00 p.m., the plaintiff was walking back to his car through the carpark when he fell over the flower box as abovementioned. The plaintiff was accompanied by two companions but he was walking on ahead of them to unlock the car. Lighting conditions in the park could be described as gloomy.

6. The plaintiff suffered permanent injury to his right index finger from his fall. As the plaintiff only had one arm, the injury had consequences which were described by the Magistrate as "dramatic".

7. The defendant relied upon section 17c of the Wrongs Act and, in particular, sub-section (6) thereof which provides:
    "(6) An occupier owes no duty of care to a trespasser
    unless-
    (a) the presence of trespassers on the premises, and their
    consequent exposure to danger, were reasonably foreseeable;
    and
    (b) the nature or extent of the danger was such that
    measures which were not in fact taken should have been taken
    for their protection."

8. This sub-section must be read in its context within part 1B of the Wrongs Act. I note the definition of "dangerous" in section 17b; attention is also drawn to s.17e which, insofar as now relevant, provides that Part 1B "operates to the exclusion of any other principles on which liability for injury .... attributable to the state or condition of premises would, but for this Part, be determined in tort". (S.17e(2) refers to circumstances not here applicable).

9. S.17c(1) provides:
    "Subject to this part, the liability of the occupier of
    premises for injury, damage or loss attributable to the
    dangerous state or condition of the premises, shall be
    determined in accordance with the principles of the law of
    negligence."

10. It is to be observed that part 1B was introduced into the Wrongs Act by virtue of the Amending Act No. 45 of 87 with effect as from 5th July 1987. The amendment followed the 48th report of the Law Reform Committee of South Australia dated 16th July 1984 relating to occupiers of land and trespassers on that land. (See also 24th report of 1973).

11. The learned Special Magistrate was prepared upon the evidence to treat the presence of trespassers on these premises as being reasonably foreseeable. However, applying Wrongs Act s.17c(6), he did not regard the circumstances as giving rise to a situation of exposure to danger; moreover, he was not satisfied that the facts gave rise to a situation which required that measures, which were not in fact taken, should have been taken.

12. I consider that the Magistrate was correct in the result. In my judgment, the nature and extent of any exposure to danger (if the situation can be so described) was insufficient to require the occupier to take steps for the protection of a person in the position of the appellant. In seeking to apply section 17c(6) of the Wrongs Act, I have had regard to the decision in Hackshaw v Shaw 155 CLR 614 and especially per Deane J at 663 and the discussion in Australian Safeway v Zaluzna 162 CLR 479 especially at 484 - 488. The presence of trespassers may have been reasonably foreseeable (as the learned Special Magistrate decided) but the real risk of relevant injury to a trespasser was, in my view, not reasonably forseeable.

13. The appellant relied, by analogy, upon Eyres v Butt (1986) 2 Qld R 243. That case involved a tripping hazard in the form of a raised metal rail installed in a carpark of a shopping centre so as to create a parking buffer. Instead of stopping with a pair of wheels against the buffer, a taxi carrying the plaintiff pulled up parallel to the buffer and the plaintiff tripped as he alighted. That case involved an invitee and the Court examined the case in the light of the traditional formula contained in Indermaur v Dames for the purpose of identifying the barrier as an "unusual danger"(as opposed to a "concealed" danger as it was described at first instance). Connolly J added at 245 -
    "However, if the liability of the appellant falls to be
    determined, not simply by the application of the traditional
    formulae by which the liability of occupiers are tested, but
    by application of the principles relating to the general
    duty of care, it is difficult to resist the conclusion that
    the possibility of an accident of this type occurring was
    plainly foreseeable and in no sense farfetched or
    fanciful.... The magnitude of the risk was obviously
    considerable.... It was obviously foreseeable that the
    vehicle in question might be a taxi carrying an intended
    customer, who might well be paying no attention until the
    vehicle stopped ..."

14. Each case must turn on its own particular facts. I do not consider that the concrete obstruction, which in this case went unseen by a trespasser in the gloom of the night, can be equated with the magnitude of the risk posed by the metal hurdle in Eyres v Butt which in broad daylight caused the downfall of an invitee going about his ordinary business.

15. Whether a situation is to be characterised as creating a danger will depend upon an assessment of the likelihood that it will bring about exposure to risk of accident. The conditions prevailing in the Gilles Street carpark did not bring about a situation which was reasonably foreseeable as exposing the plaintiff to danger.

16. The appellant claimed that the premises were insufficiently lit and accordingly, unsafe; I do not agree.

17. Subject to my own remarks, I adopt the reasons of the learned Special Magistrate and uphold his decision. The appeal is dismissed.