McDonald, Brenda Vera v Sypkes Securities Pty Ltd

[1998] TASSC 132

132/1998

PARTIES:  McDONALD, Brenda Vera
  v
  SYPKES SECURITIES PTY LTD AND OTHERS

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  261/1996
DELIVERED:  27 October 1998
HEARING DATE/S:  15, 16, 17 June 1998
JUDGMENT OF:  Evans J

CATCHWORDS:

Damages - Particular awards of general damages - Tasmania - Knee injury - Woman aged 69 at trial - Diminished enjoyment of life - Awarded $14,000.00.

Aust Dig Damages [61]

Torts - Negligence - Essentials of action for negligence - Duty of care - Reasonable foreseeability of damage - Duty of occupier - Plaintiff tripped and fell over concrete buffer in shopping centre car park - Whether buffers involved a risk of injury to users of the premises - Failure to paint buffers noticeable colour and install barrier between walkway and car park spaces causative of accident - Risk of injury foreseeable and not too remote - Breach of duty.

Wyong Shire Council v Shirt (1980-1981) 146 CLR 40, applied.
Aust Dig Torts [32]

Torts - Contributory negligence - Apportionment of responsibility and damages - Apportionment in particular situations and cases - Plaintiff aware of presence of concrete buffers in shopping centre car park - Failed to keep a proper lookout - Tripped and fell over buffer - Whether defendants' failure to provide for plaintiff's inadvertence and lack of care precludes plaintiff from liability for contributory negligence - Plaintiff's portion or responsibility assessed at 25%.

Northern Territory of Australia v Shoesmith & Ors (1996) Aust Torts Reports 81-385, applied.
Aust Dig Torts [71]

Torts - Dangerous premises - Injuries to person entering premises - Invitees - Liability of occupier generally - Whether reasonably foreseeable risk of injury to entrant - Plaintiff tripped and fell over concrete buffer in shopping centre car park - Whether buffers involved a risk of injury to users of the premises - Failure to paint buffers noticeable colour and install barrier between walkway and car park spaces causative of accident - Risk of injury foreseeable and not too remote.

Aust Dig Torts [128]

REPRESENTATION:

Counsel:
             Plaintiff:  P Barker, K O'Donnell
             Defendants:  W Beveridge, J Neilsen
Solicitors:
             Plaintiff:  Phillips Taglieri
             Defendants:  Dobson Mitchell & Allport

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  132/1998
Number of pages:  7

Serial No 132/1998
File No 261/1996

BRENDA VERA McDONALD v
SYPKES SECURITIES PTY LTD AND OTHERS

REASONS FOR JUDGMENT  EVANS J

27 October 1998

The plaintiff sues the defendants for damages for personal injuries she suffered in the car park at the Glenorchy Central Shopping Centre ("the Centre") on 3 May 1994 when she fell over a concrete buffer.

The area of the accident

The defendants are the owners of the Centre and occupy its car park and common areas.  The Centre is in Eady Street, Glenorchy.  The car park occupies a large area between the front of the Centre and Eady Street.  It is surfaced with asphalt.  Parking spaces are delineated by lines painted on the asphalt.  No evidence was given of the dimensions of the car park or the total number of parking spaces.  It is apparent from a plan of the portion of the car park, which includes the area where the plaintiff's accident occurred, that there are well in excess of one hundred parking spaces.

The front of the Centre faces east.  A brick walkway 2.5 metres wide runs along the front of the Centre between the car park and the Centre.  The walkway surface is level with the car park surface.  Eighteen parking spaces are marked out along the asphalt which adjoins the walkway.  To stop cars using these parking spaces from encroaching on the walkway, concrete buffers have been placed towards the Centre end of each space.  The buffers are 1.8 metres long, 10 centimetres high and 20 centimetres wide.  The buffers are parallel with the walkway, 79 centimetres on to the asphalt.

The entrance to the Centre is approximately a third of the way along the front of the Centre from the northern end.  The car park surface immediately in front of the Centre entrance has not been marked out for parking spaces.  It is available for pedestrians.  This area is approximately three parking spaces wide.

At the northern end of the front of the Centre there is a T-junction in the walkway.  To the west, it runs along the side of the Centre.  To the east, it proceeds to steps leading down to a car park, referred to in the evidence as "the Coles car park".  The Coles car park fronts on to Eady Street and is adjacent to, but at a lower level than, the Centre car park.  At the point where the walkway proceeds east to steps down to the Coles car park, there is a 78 centimetre high brick planter box between the Centre car park and the steps.  The accident occurred in the Centre parking space nearest to the planter box.  The plaintiff fell over the concrete buffer in that parking space.  The relevant area is depicted in the below plan.  The plan shows a manhole cover in the parking space where the accident occurred.  The manhole cover is roughly level with the surface of the parking space and I do not consider that its presence played any part in the plaintiff's accident.

The circumstances of the accident

For approximately two years prior to the accident, the usual practice of the plaintiff and her husband, Mr McDonald, was to shop at the Centre each Tuesday morning.  Mr McDonald parked their car in the Coles car park as it provided shade and was convenient for other tasks which they attended to, such as going to the library.  On the Tuesday of the accident, consistent with their usual practice, the plaintiff and Mr McDonald went to the Centre.  Mr McDonald parked their car in the Coles car park.  They went to the library and then to the Centre, entering it via a rear entrance.  Having completed their shopping, Mr McDonald took their purchases to the car.  As they were to go elsewhere for other purposes, the plaintiff waited for Mr McDonald to rejoin her in the Centre.  She initially waited at a seat inside the front entrance to the Centre, but moved outside as she decided to smoke a cigarette.  She walked along the brick walkway towards the steps leading down to the Coles car park and stopped to smoke her cigarette standing in the parking space next to the planter box.

As she smoked her cigarette, she was facing the Coles car park looking out for the return of her husband.  In this position the planter was immediately to her front right.  She was touching it.  The manhole cover was to her left rear.  No car was parked in the parking space.  The concrete buffer in that parking space was approximately one metre to her rear.

Having finished her cigarette, she turned and began to walk across the parking space towards the brick walkway and the entrance to the Centre.  She tripped over the end of the buffer and fell along it, suffering injuries.

Duty of care

The defendants owed a duty of care to lawful users of the premises.  The test to be applied in determining whether there has been a breach of the duty is as laid down by Mason J (as he then was) in Wyong Shire Council v Shirt (1980 - 1981) 146 CLR 40 at 47 - 48.

"In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff.  If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk.  The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.  It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position."

The application of the test involves an assessment of whether a reasonable person in the position of the defendants would have foreseen that the concrete buffer involved a risk of injury to users of the premises.  If so, the assessment of whether there has been a breach of the duty of care because of the lack of, or inadequacy of, their response to the foreseeable risks involves a consideration of:

(a)       the magnitude of the risk;

(b)       the degree of the probability of its occurrence;

(c)       the expense, difficulty and inconvenience of taking alleviating action; and

(d)       any conflicting responsibilities of the defendants.

The buffers were in the path of pedestrians moving to or from the walkway via parking spaces which fronted onto the walkway.  The buffers were grey in colour against the background of the darker (tending to black) asphalt.  The buffers were not so bulky and apparent as to make it almost inevitable that pedestrians would see them.  A comparatively large retail shopping centre, such as the Centre, is likely to attract a wide range of users in circumstances in which there is a real risk that they will not be as observant as they ought be.  Many users are likely to be carrying bags of purchases.  Some will be rushing, others will be distracted by the need to supervise accompanying children or watch out for cars in the parking area.  At different times and in varying weather conditions, visibility will be poor.  The wide range of users will include people with poor sight.  In those circumstances I am in no doubt that a reasonable person in the position of the defendants, who considered whether the placement of the buffers involved a risk of injury to users of the premises, would have concluded that they did.

The defendants did nothing to alleviate the risk.  An obvious and inexpensive preventative measure was to paint the buffers in a noticeable colour.  This measure was taken within two weeks of the occurrence of the plaintiff's accident.  A further measure that should have been taken was the installation of a railing, or similar barrier, between the walkway and the parking spaces, running from the planter box around to the Centre entrance.  A similar rail should have been installed to the south of the Centre entrance.  In the absence of a barrier, people inclined to take the shortest route to or from the Centre entrance are not discouraged from a course which may require them to negotiate their way over or around a buffer.  The installation of an appropriate barrier would not be expensive or inconvenient.

For the reasons expressed, I am satisfied that the risk of injury by tripping over a buffer was foreseeable and the likelihood of occurrence was not remote.  The potential for a person to suffer serious injury was real.  Comparatively inexpensive, easy and not too inconvenient means of alleviating the risk were readily available.  I am accordingly satisfied that the defendants breached their duty of care to the plaintiff.  In the circumstances, I do not find it necessary to deal with expert evidence called on behalf of the plaintiff as to the foreseeability of the risk of injury and the means of avoiding the risk.

Causation

Had the buffer been painted to make it more obvious, it is likely that the plaintiff's attention would have been attracted to it and she would not have tripped over it.  Had a barrier separated the parking spaces from the walkway, the plaintiff could not have taken the course which resulted in her accident.  In result, I am satisfied on the balance of probabilities that the defendants' breach of duty caused or materially contributed to the plaintiff tripping over the buffer.

Contributory negligence

The plaintiff tripped over the buffer because she did not notice it.  She failed to keep a proper lookout.  In circumstances such as those under consideration, the defendants' duty of care to the plaintiff required them to take into account the possibility that she would act inadvertently (Northern Territory of Australia v Shoesmith & Ors (1996) Aust Torts Reports 81-385 at 6351 and the cases there cited). The defendants' failure to provide for the plaintiff's inadvertence or lack of care does not, however, preclude the plaintiff from liability for contributory negligence (Northern Territory of Australia v Shoesmith & Ors (supra) at 6344).

The plaintiff was a regular user of the Centre and was aware of the presence of buffers in the car park.  The weather on the day of the accident was described as normal, it was dry and not unusually light or dark.  The plaintiff was not carrying parcels or the like which restricted her view.  While she was carrying a handbag, I do not consider that it in any way hindered her view.  She was not subject to any time constraints.  She had ample time and opportunity to keep a proper lookout.  She failed to do so and that was a contributing cause for her accident.  The defendants created the risk and were responsible for alleviating it.  Comparing the degree of departure of the parties from the standard of care expected of them, I assess the plaintiff's portion of responsibility for her loss at 25 per cent.

Damages

The plaintiff is 69 years of age.  She was 64 years of age when the accident occurred.  Her life expectancy is 16.43 years.

When she fell, her right knee struck the edge of the buffer and she sustained two undisplaced fractures of her right patella.  Her forehead was cut above her right eye where it struck one of the bolts which secured the buffer.  The cut above her forehead was superficial and required no more than a band-aid.  The trauma to her forehead caused her to suffer two black eyes.

She put out her hands to break her fall and in the process jarred both her forearms, causing bruising from the palms of her hands to her elbow.  Her left arm suffered more than her right arm.  She wore a left wrist brace for two to three weeks following the accident.  While she has some minor on-going concerns in relation to her left arm, I disregard them, as her orthopaedic surgeon, Mr Field, is of the view that there is no clinical evidence of any on-going problem with her left arm that can be related to her fall.

The treatment of her right knee involved placing her right leg in a splint for approximately six weeks.  During this period she was unable to walk without the aid of a walking stick and the assistance of her husband.  Because of the soreness of her left arm, she could not use crutches.  Whilst her leg was in a splint she received physiotherapy twice a week and thereafter for a further twelve weeks she received physiotherapy once a week.

For the first six weeks following the accident, the plaintiff was in considerable pain from which Panadol Forte provided her with some relief.  On the occasions that she has suffered pain since that period, she has resorted to Disprin.  As a consequence of the knee pain she has suffered on occasions since the accident and her susceptibility to knee pain when she carries out some tasks, she has significantly curtailed her activities.

Prior to the accident she enjoyed walking.  Once a week she met friends and went on a social walk at places like the Risdon Brook Dam and the Brighton Racecourse.  She was active in the garden, weeding, attending to flowers and mowing the lawn.  She did all the housework.

She says that since the accident she finds gardening impossible.  She does a little weeding, but in order to carry out that work she needs to sit down.  Her husband helps with all the housework.  He hangs out and collects the clothes that have been washed, does the vacuuming and all heavy cleaning.  He does most of the cooking.  She still does the ironing.

Her knee has given way on several occasions and it feels like there is grit behind her kneecap.  She has concerns about the reliability of her right leg and has lost the confidence to drive a motor vehicle.

Mr Field is an orthopaedic surgeon.  He examined Mrs McDonald on 11 January 1995.  At that time she complained of on-going symptoms related to her right knee.  She had some pain in the retropatellar area of her knee on going up and down stairs.  She had little in the way of symptoms when walking on the flat.  She had occasional pain at night.  On occasions, the knee felt unstable, but there had been no swelling or locking.  She did not require any analgesia.  On examination, there was a mild degree of patellofemoral crepitus on knee flexion.  Mr Field's opinion was that as a consequence of the fall she may have developed some irregularity of the joint surface with chondromalacia which was causing her on-going symptoms.

Mr Field again examined the plaintiff on 19 March 1997.  On that occasion she complained of aching in the anterior aspect of her right leg.  The pain was present most of the time and restricted her walking distances to about 500 metres.  She had pain at night and her knee kept her awake.  She was not taking anything for her pain.  Her pain was aggravated by walking up and down stairs.  With prolonged walking, her right knee would swell and over the last three years it had given way on two occasions.  She denied any other problems.  On examination, there was some patellofemoral crepitus present and grinding the patella produced some retropatellar pain.  He concluded that it was likely that she had some degenerative changes as a result of her fall and the fractures.  He formed the opinion that if her anterior knee pain was to continue and if her symptoms became incapacitating, it might be appropriate to inspect her knee joint arthroscopically to better assess the degree of degeneration in the retropatellar area and it might be appropriate to do a lateral capsular release in an attempt to relieve her retropatellar symptoms.  He remained of that opinion when he gave evidence to the Court.  He estimated the cost of the surgery at $4,000.

He said that the trauma which the plaintiff's left knee suffered in the fall was the likely cause for her symptoms of retropatellar pain.  It is probable that the fracture to the patella precipitated the retropatellar pain and the condition which has resulted in the grinding sensation behind the plaintiff's kneecap.  It was consistent with his findings in relation to the plaintiff that her retropatellar pain would be made worse by kneeling or squatting.  He did not consider that the pain would normally be made worse by prolonged standing or walking on level ground, although going up and down stairs may cause pain.  Her knee could become painful if flexed for any length of time and the pain in the knee could interfere with her sleep.  As to her suffering pain in the future, he considered that if she had a fairly sedentary way of life, she would be less likely to suffer flare ups of pain or need to undergo surgery.

In summary, as a result of the fall, the plaintiff suffered significant pain and discomfort for a period of six weeks after the accident.  The fractures to her patella have precipitated retropatellar pain which causes her concern from time to time, but not so frequently as to make her a regular user of a Disprin or any analgesia.  She protects herself against the onset of pain by avoiding activities which are likely to cause pain.  In result, her lifestyle is more sedentary than it would otherwise be and her enjoyment of life is diminished.  This situation is permanent.  Her involvement in the garden is significantly reduced and she has allowed her husband to assume many of the household tasks that she previously performed.  She is no longer able to enjoy social walking, particularly if it involves walking on rough ground.  For pain and suffering and loss of the amenities of life, as well as past travel and pharmaceutical expenses, I award her damages of $14,000.

In part, as a consequence of her now cautious approach to activities, it is unlikely that she will require further surgery.  Some allowance should, however, be made for this possibility, together with her need for future medical and pharmaceutical expenses and knee support bandages.  I allow $1,250 for these matters.

I allow the following further items of special damage:

Paid for three knee support bandages	$99.00
Medical expenses incurred	221.00

In result, I assess damages as follows:

Pain, suffering and loss of amenities of life	$14,000.00
Future medical treatment, etc	1,250.00
Paid for three knee support bandages	99.00
Medical expenses incurred	221.00
SUB-TOTAL	$15,570.00
Less 25 per cent contributory negligence	3,892.50
TOTAL	$11,677.50

There will be judgment for the plaintiff for $11,677.50.