Monica Bartusz v The Trustee for the North Hill Hamburger Trust (ABN 79725876221) - [2016] NSWDC 320

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Monica Bartusz v The Trustee for the North Hill Hamburger Trust (ABN 79725876221) [2016] NSWDC 320
Hearing dates: 7 – 9 November 2016
Decision date: 25 November 2016
Jurisdiction: Civil
Before: Mahony SC DCJ
Decision:
Verdict and judgment for the plaintiff. For Orders see [115]

Catchwords: Tort; trip and fall on defendant’s premises
Legislation Cited: Civil Liability Act 2002 (NSW)
Cases Cited: Browne v Dunn (1893) 6R 67
McConachie t/as Willancorah Pastoral Company v Pack [2004] NSWCA 148
Penrith City Council v Parks [2004] NSWCA 201
Reece v Reece (1994) 19 MVR 103
Sampco Pty Ltd v Wurth [2015] NSWCA 117
Varga v Galea [2011] NSWCA 76
Category: Principal judgment
Parties: Monica Bartusz (Plaintiff)
The Trustee for the North Hill Hamburger Trust (Defendant)
Representation:
Counsel:
R Sheldon SC with L Goodchild (Plaintiff)
W Reynolds (Defendant)
Solicitors:
Bandeli Hagipantelis
Sparke Helmore

File Number(s): 15/94085
Publication restriction: Nil

Judgment

Introduction

The plaintiff claims damages for injuries suffered by her on 11 April 2013, when she tripped on a kerb of the car park at premises occupied by the defendant at Prestons in the State of New South Wales, upon which it operated a McDonald’s restaurant.
The plaintiff was a passenger in the rear seat of a car that drove into the car park area of the premises at approximately 8.00 pm on that evening. She contends that the car park lights and external lights on the restaurant premises were not illuminated, although the interior lights within the restaurant were on. Whilst walking from the car to the entrance of the restaurant, the plaintiff claims that the area was in darkness and that she tripped on the kerb and fell to the ground, thereby suffering a fracture of the radius and ulna bones in her right wrist.
It is not in dispute that the defendant owed the plaintiff a duty of care, and that the plaintiff was under a duty to take reasonable care for her own safety. What is in dispute is whether the external lights, including the car park, an outdoor eating area (“the verandah”) and external signage lights, were on at the time the plaintiff fell. Experts qualified on behalf of both parties agree that if all the lights were on, the kerb would have been plainly visible. They further agree that if the internal lights were on, and the external lights were off, the levels of illuminance on the kerb were lower than the minimum recommended levels. However, with the car park lights and main sign light off, and all other lights on (i.e. the verandah lights), the experts agreed that the level of illuminance would have been adequate for the plaintiff to observe the kerb.
The central factual issue to be determined in this matter therefore is whether the external lights, including the car park, signage and verandah lights, were illuminated at or about 8.00 pm on 11 April 2013.
The plaintiff’s claim is brought in negligence. The particulars of negligence relied upon are:

“Failing to take any or any adequate precautions for the Plaintiff’s safety;

Putting the Plaintiff in a position of peril in the circumstances;

Failing to turn on the external restaurant lights and the car park lights;

Failing to ensure that any timing device which operated those lights was set to non daylight saving time;

Operating the external and car park lights on daylight saving time rather than non daylight saving time.

Failing to warn or adequately warn the Plaintiff of the presence of the said kerb;

Failing to ensure that the said kerb was illuminated;

Failing to pain or otherwise identify the edge of the kerb so that pedestrians approaching that kerb in darkness would be able to see it.”

By an Amended Defence, the defendant denies that it was negligent and states that all lights, including the car park and external shop lights were on at the time of the accident. Further, the defendant has pleaded that the plaintiff was guilty of contributory negligence pursuant to ss 5R and 5S of the Civil Liability Act 2002(NSW) (“CLA”). The particulars of contributory negligence pleaded are as follows:

“Failing to watch where she was placing her feet as she was walking;

Failing to keep a proper look out;

Not taking care of her own safety in all the circumstances.”

The plaintiff’s evidence as to liability

The plaintiff gave evidence that she was travelling in the backseat of her husband’s vehicle along Camden Valley Way, heading west towards Silverdale. Her son was in the front seat with her husband. On Camden Valley Way at Prestons there was a McDonald’s restaurant and as they approached it, she heard her husband and son say, “Let’s stop and have something to eat at McDonalds”. She then heard her husband say, “They’re not open”, and her son replied, “Let’s go in and check”.
The plaintiff gave this evidence:

“Q. What happened?
A. We ‑ well, my husband drove the car in to the car park, he parked the car, because we had the trailer on we had to park it on the side, taking up three car spaces, which was right opposite the verandah entry. We pulled up, I got out of the car, my husband and my son checked the ropes on the trailer to make sure the furniture was tied down properly, I started to walk across to the verandah, I could see in the distance a small amount of light coming from inside the restaurant, so that's where I was looking, up there, and that's where I was heading, toward the door of the restaurant. I knew the boys were behind me, and then all of a sudden my foot hit the gutter, I went airborne, and I came crashing down, I put my hand out, instinct, I suppose, to try and stop the fall, but my hand took the whole force and my bone came out here.”

The plaintiff gave evidence that when she was on the ground she felt pain “kicking in”. She was unable to get up and her husband and son lifted her onto a chair in the verandah area of the restaurant. She gave the following evidence:

“Q. What happened while you were sitting on that seat?
A. The man that saw it happen went inside and brought out a, a young gentleman who introduced himself to us as the junior manager, and he, he said, "Would you like a glass of water?" And I said, "Yes." He went inside, he came out with a paper cup and I had to tip the water out 'cause I vomited into the cup.
Q. Was anything said to or by this man?
A. He said, "I have to fill in an incident report," and he went back inside and he came out with a clipboard and he had a piece of paper on the clipboard and he started to speak to my husband. He said, "What's her name? What" – you know, "What's her address?" I, I was listening, but he spoke to my husband. I was in a mess.
Q. Did your husband speak?
A. He did. He said to him, "Why is it so dark out here?" And he said to my, my husband, "The lights have not been changed from Daylight Saving. That's why the - there's no lights on."

The plaintiff then identified by reference to a bundle of eight photographs (Exs B1 – B8), the location where she fell. It was on the left-hand side of the premises, as one faces the premises from Camden Valley Way. The location was close to the front of the premises, adjacent to a hedge delineating the edge of the children’s play area. The place where the plaintiff fell is clearly demonstrated in Ex B2, which shows that there was a yellow painted bollard placed above the kerb and a garbage disposal unit placed behind a vertical upright supporting the verandah.
By reference to photograph B3, the plaintiff identified a number of lights on the verandah supports which she referred to as “some frosted lights”. They were also shown in Ex B8. She was asked as follows:

“Q. Are you able, by reference to any of those photographs, particularly photograph 8, to say where the lights you could see on were?
A. No. The whole verandah was in complete blackness. The only light coming out of the restaurant was coming through that door. So very, what would you call it, filtered.”

In cross-examination, the plaintiff repeated her contention that there were no external lights on at the premises. There was a McDonald’s sign close to Camden Valley Way, and she said that was not illuminated. This was the only time she had passed the McDonald’s premises at night time. She denied that there was lighting provided in the car park. She also denied that the children’s play land area was illuminated. She described the area of her fall as “total darkness”.
The defendant’s case was put to the plaintiff as follows:

“Q. I want to suggest to you that one of the areas of dispute in this case is whether there was lighting on or not. You're aware of that, aren't you?
A. I am aware of that.
Q. I want to suggest to you that in fact the external lights were on at the restaurant on the night that you had your accident. If you don't agree, please say so.
A. I don't agree.
Q. I want to suggest to you that the verandah lights were on.
A. I don't agree.
Q. I want to suggest to you that the light out the street, the McDonald's sign light, I might call it, that was illuminated at 8 o'clock on the night of your accident.
A. No, it wasn't.
Q. This was a Thursday night, wasn't it?
A. Correct.
Q. I want to suggest to you that at 8 o'clock it was reasonably busy, more than four people in the restaurant.
A. That's all I could see from the street. I was only trying to establish whether it was open or not, and to see four or five people inside eating or ordering, I assumed it was open.
Q. I want to suggest to you there was a lot more people than just four or five inside the restaurant.
A. Apart from the staff, that's all I could see.
Q. When you'd gone to the McDonald's on a previous occasion, how had you entered the actual premise itself, not the driveway, not the car park but the actual premise?
A. Okay, to enter the restaurant, you drive in a side street next to the service station and you enter from the back of the service station and you come past and around to the McDonald's. And the last time I went there, we parked in the front of the restaurant and I walked straight in the door. But we didn't park there this time because we had the trailer on the back and we needed two spaces and the - the car spaces in front of the restaurant only accommodate one car, you can't pull up there with a trailer, which is why we parked on the side where we could with the trailer.
Q. So this was a side that you hadn't used before.
A. Correct.
Q. So you had no idea what was on that side.
A. Correct.
Q. You say it was so dark you couldn't see anything to inform you as to what was ahead of you as you were walking from the car.
A. Correct. Correct.
Q. You could see the bollard but only just.
A. Yes. Yes.
Q. You couldn't see all of the bin but only just the top section of it.
A. Yes.
Q. You didn't know whether there was anything under that top section or not.
A. No.
Q. You say you couldn't see anything else as you were walking from the car onto the patio.
A. Correct.
Q. You did know, didn't you, that the driveway that we see in photograph 2 that runs from right to left or left to right, you knew that was there?
A. Yes, I knew that was there, I, I crossed over there to go to the‑‑
Q. And as you walked across, you'd have certainly knew you were walking across a roadway.
A. Correct.
Q. You knew you were coming up to a building.
A. Correct.
Q. Didn't it occur to you that there would be a kerb at the building?
A. No. I could - I could‑‑
Q. Didn't it occur to you there might be at least some step at the building?
A. I could see ahead of me where the door to the restaurant was and that's what I was looking at, I was making my way to the door and I didn't see the gutter.
Q. You could see that there were tables and chairs out there on the verandah as you were walking towards it.
A. I couldn't see the tables and chairs, that's how dark it was.
Q. You could see the yellow bollard but you couldn't see the white tables and chairs.
A. No, I couldn't.
Q. Even though they're closer to the doorway where the light was coming through.
A. Correct.
Q. So you effectively were walking into a black area.
A. Correct.
Q. I want to suggest to you that it was not nearly as dark as you suggest it was.
A. I disagree.
Q. I want to suggest to you that, even on your case, there was sufficient light coming out through the doorway to be able to at least see the tables and chairs.
A. No.
Q. I want to suggest to you that you must have been aware that there was a kerb at or near the building alignment as you were crossing the roadway.
A. If I had seen the kerb, I would not have tripped.
Q. I'd suggest to you that you really just didn't apply your mind to walking across from the car to the restaurant.
A. Yes, I did.”

It was further put to the plaintiff that the McDonald’s employee had introduced himself as the manager of the premises, and that he did not say words to the effect of “the lights hadn’t been changed from daylight saving”. The plaintiff denied that.

The evidence of Patrick Bartusz

Patrick Bartusz was the plaintiff’s son. He gave evidence corroborating that he was with the plaintiff and his father, travelling along Camden Valley Way at Prestons on the evening of 11 April 2013. As they approached the McDonald’s restaurant, he noticed that the sign for the restaurant was not lit up and that there were no lights on in the car park. He described it as “very dark”. He did see some lights on inside the premises and there was a discussion as to whether the restaurant was open or not. He decided they should go in, and as they entered the car park, he could see the lights on inside the restaurant, and that there were people inside. He came to the conclusion that the restaurant was open and gave evidence that they parked the car. When he got out of the car he checked a load on the trailer that they were towing, then followed his mother and father across the car park towards the restaurant. He observed the lights in the verandah area to be off, and, as he walked behind his mother, he observed her to fall. He was asked:

“Q: What was the lighting like where she fell?
A: Very dark.”

Patrick Bartusz corroborated his mother’s evidence that she was assisted into a chair. A staff member from the restaurant then came out and spoke to his mother and father. He gave the following evidence:

“Q. What did you hear your father say?
A. "Why was it so dark outside?" and I do - another question which was repeated, "Why were the lights off?"
Q. Did you hear this person from McDonald's say anything after that?
A. Yes I did, yes.
Q. What did he say?
A. He said that the lights were still on daylight saving's time.
Q. Did you hear anything said by anyone after that?
A. Yes.
Q. What?
A. My father.
Q. What did he say?
A. I can't remember the words exactly but he was not very happy.
Q. Did you hear anything more said by the gentleman from McDonald's?
A. Not that I can remember.”

Patrick Bartusz was shown Ex B2 and he confirmed that they were walking from the car into McDonalds in the direction shown in that photograph. He was asked:

“Q. On the night of your mother's accident what can you say, if anything about the visibility of the various items which are shown on the other side of the arrow painted on the road?
A. Visibility was very, very poor.
Q. What could you see on your way across this section?
A. I could see play equipment, the bushes in front of it and that was about it.”

By reference to Ex B3 he identified the circular lights in the verandah area and said that none of them were illuminated. Nor was the McDonald’s sign shown in Ex C lit on the evening of his mother’s accident.
In cross-examination, Patrick Bartusz said that he had noticed that there were people inside the restaurant and the internal lights were on. He did not notice any vehicles go through the drive-through service area, which was on the same side of the premises on which they parked. When asked whether, in the time from when his mother fell until they left to take her to the hospital, there were other people coming and going from the restaurant, he answered, “I was not paying attention”. However, whilst on the verandah, he agreed that he did see people coming and going because they looked at his mother. He assumed they must have walked into the car park.
He described the McDonald’s employee who spoke to his mother as having a notebook with him and writing down details. He confirmed that his mother had been sick whilst on the premises.
Patrick Bartusz gave evidence that he had been to the McDonald’s restaurant after dark on previous occasions and seen the car park lights on. Also, the McDonald’s sign on Camden Valley Way had been on. The McDonald’s sign placed on the roof of the restaurant had also been illuminated on those occasions.
Patrick Bartusz gave evidence that on the night of his mother’s fall he could see the hedge and the play area, but not the vertical yellow bollard shown in Ex B2, nor the vertical member supporting the roof of the verandah shown in that photograph. The defendant’s case was put to him as follows:

“Q. I want to suggest to you that the exterior lights on the premises were on on the night your mother had her accident.
A. I don't agree with that, I disagree.
Q. I want to suggest to you that the lights that were on the vertical members shown in photograph 3, that's the patio or the verandah lights, those three on the vertical members, I want to suggest to you that they were on on the night?
A. I disagree.
Q. I want to suggest to you that the McDonald's sign at the street was on at the time of your mother's accident?
A. I disagree.
Q. And I want to suggest to you that the McDonald's sign over the building was on at the time of the accident?
A. I disagree.
Q. I want to suggest to you that if you look at photograph 2. I want to suggest to you that at the time that you and your family were seeking to walk across that road to the verandah, that that area shown in photograph 2 with the bollard and the vertical member with the rectangle object behind it - where I was directing your attention before, I want to suggest to you that that area was sufficiently well lit, on that night to enable you to see what lay ahead of you as you were walking towards it?
A. I disagree.
Q. I suggest to you that you're mistaken about hearing the McDonald's person say that the lights were not on because of something to do with an adjustment for Daylight Saving?
A. I disagree.”

Evidence of Alex Bartusz

The plaintiff’s husband, Alex Bartusz, gave evidence corroborating the plaintiff’s evidence of her fall. He gave evidence that the vehicle drove into the car park and parked on the side of the restaurant. He could see that there were interior lights on and that there were people inside the restaurant. He gave the following evidence:

“Q. Where were you when you noticed that there were people inside the restaurant and the lights were on inside the restaurant?
A. As, as I was or my son was driving into the carpark and we were basically right in front of the restaurant.
Q. Were there any lights on in the carpark?
A. No there were not.
Q. The car was parked eventually?
A. Yes it was.
Q. What happened after the car was parked?
A. Three - all three of us got out of the car. Monica was - walked in front of Patrick and I and we basically walked straight across from where the car was parked going in towards the restaurant. And it was actually the side of the restaurant that we were walking in near the drive-thru.
Q. What was the lighting like between the car and the side entrance to the restaurant?
A. It was non-existent. There was no lights on at all out there.
Q. Did something happen to your wife?
A. Yes, she--
Q. What happened?
A. She fell over the kerb that was there.
Q. After she fell what occurred?
A. Well basic - Patrick and myself tried to help her up but she couldn't get up. We sort of - another gentleman who witnessed the fall came over and said that he would get someone - try and get a manager out. We got a chair for Monica and then we eventually, Patrick and I - she couldn't get up on her own, so Patrick and I both helped her sit in the chair. And then by that time a junior manager I believe had come out and asked if Monica was all right, but she wasn't obviously.

Q. When you say a "junior manager had come out" what was it that led you to believe he was a junior manager?
A. He straight away said he was a junior manager at the store.
Q. Was anything else said?
A. He said could he help in any way and I think - I think Monica asked for a glass of water, which he went and got.
Q. Did he come back with a glass of water?
A. Yes he did yes.
Q. Did you have a conversation with him?
A. Yes, I asked--
Q. What did you say?
A. I asked the gentleman, "Why is it so dark out here in the carpark and in the verandah area?" He very sheepishly said to myself and Patrick--
HIS HONOUR
Q. Just say what he said please.
A. Okay. That the lights had not been changed from daylight saving and they had not come on.”

Alex Bartusz was shown Ex B and identified the car park lighting shown in Ex B1. He gave evidence that that light was not on. As they walked towards the restaurant he could not see the hedge shown in Ex B2, or the yellow pole. He gave evidence that he could not see the kerb at the bottom of the hedge and the pole, nor could he see the vertical support to the roof of the verandah. When asked to describe the level of light that was available as they crossed towards the entrance of the restaurant, he answered, “Very poor”. He identified the white circular lights in the verandah area and gave evidence that they were not lit on the night, nor was the McDonald’s sign on Camden Valley Way.
In cross-examination, Alex Bartusz said that he was walking directly behind the plaintiff, which was why he could not see any of the things on the other side of the car park. By the time he could see the kerb, his wife had fallen. After she had fallen, he looked and saw the kerb. He said:

“A: We were right there when she fell. We tried to help her up and then, yes, I, I could see a lot of the things but it was still very, very dark. There were no verandah lights on. The kerb is pretty much the same colour as the tar sealed road.”

He was asked:

“Q. But you were able to see it?
A. Because I looked down because I stopped, yes.
Q. You knew there was a road there?
A. Yes.
Q. That is, a road immediately in front of the kerb?
A. Yes.
Q. It wouldn't be surprising to have a kerb there, would it?
A. It also wouldn't be surprising to have a layback there which a lot of them do.
Q. Is the answer to my question then you wouldn't be surprised to have a kerb there?
A. No, of course not.
Q. You say you saw some people inside the restaurant and the lights inside the restaurant were on?
A. That's right.
Q. How many people were inside the restaurant?
A. Maybe half a dozen, maybe ten.”

In answer to questions from the court, Alex Bartusz said that he was seated in the front seat of the vehicle, and as the car drove into the car park, the car lights illuminated the driveway and car park.
Alex Bartusz estimated that it was some 30 minutes from the time his wife fell, until they left to take her to Liverpool Hospital. In the time they were at the premises, no one did anything about turning the lights on.
In respect of the car headlights, Alex Bartusz was asked:

“Q. They would have illuminated the road area that's depicted in that photograph?
A. Not necessarily, no.
Q. What would stop the headlights from illuminating the road in this area as you were driving to this point where you were parking?
A. Well, the length of the car is roughly 5 or 6 metres. We were totally to the left of that area so I don't know, I'm not an expert but I don't know if a car headlight would illuminate that wide an area. We weren't - we weren't facing that area. We were totally facing the opposite direction when we drove in.”

Alex Bartusz denied that the McDonalds sign at the front of the premises on Camden Valley Way was illuminated on that night. The defendant’s case was put to him as follows:

“Q. I want to suggest to you at 8 o'clock at night the carpark lights were on.
A. No, they weren't.
Q. And if you have a look at the third photograph of exhibit B, those round lights that you've identified, I want to suggest to you that they were on.
A. No they weren't.
Q. I want to suggest to you that if you go to photograph 2 of exhibit B. I want to suggest to you that as you walked from the car, across the area that's shown in that photograph, towards the verandah?
A. Yes.
Q. I want to suggest to you that the verandah in that area was sufficiently well lit to enable you to clearly see the kerb and guttering?
A. No it wasn't.
Q. You said that this McDonald's man came and said words to the effect of "The lights haven't been changed from Daylight Saving, that's why they didn't come on"?
A. That's correct.
Q. I want to suggest he did not say that to you?
A. He did, yes he did.
Q. I want to suggest you're mistaken about that?
A. No, I'm not.”

The defendant’s evidence as to liability

The defendant called Tony Ham, who, on 11 April 2013 was the manager on duty at the McDonalds restaurant at Prestons. His shift started at 4pm, at which time he completed a checklist known as a “Shift Management Tool”. That document provided for entries made at 30 minutes intervals of inspections of various parts of the property. He gave evidence that at the start of his shift he had checked the car park was free of litter. The document also informed him that he needed to turn the lights on in the car park and on the various brand signs located on Camden Valley Way and on top of the restaurant. He gave the following evidence about the state of the lighting at 8.00 pm that night

“Q. You said you started at 4 o'clock. What had you observed about the lighting at 8 o'clock at night that night?
A. What did I observe?
Q. Yes.
A. So at 8 o'clock it was busy so we had cars coming through the drive‑through so it was a busy period during that time. Obviously I still would walk around, you know, make sure the people are positioned where they are so they will be able to get me off the floor for the time being and do a travel path.
Q. What did you notice about the external lighting?
A. I didn't notice anything, they were on.”

Mr Ham was inside the restaurant when he was informed by one of his crew that a customer had fallen. He went to the verandah area and saw her on the right hand side of that area, which he described as “the patio”. He asked the customer if she wanted some ice to ease the pain and went inside to obtain the incident report book. He gave the following evidence:

“Q. So what did you do with this incident book?
A. Took it out and I got the details from the customer.
Q. When you got to her the first time did she tell you what had happened?
A. Yes, she did.
Q. What did she say?
A. She said that she tripped over.
Q. Did you know where she tripped over or what she tripped over?
A. Yes, she did.
Q. What--
A. She tripped over the kerb.
Q. At that stage did you make any observation about the lighting?
A. No, because they were on.
Q. Which lights were on at that time when you came up and spoke to her the first time?
A. Okay, well, the patio lights were on. The car park lights were on. The play land lights were on and the fog lights were on.”

Mr Ham did not observe the plaintiff to leave the premises. He gave the following evidence:

“Q. While you were on the verandah speaking to the customer did you notice anything about other customers coming and going from the premises?
A. Yes.
Q. What did you notice about them?
A. Nothing. They came in, got their food, ate and then left.
Q. Did any of them come near you?
A. No.
Q. Did any of them pass in your area?
A. I don't remember.
Q. Did you complete your shift at midnight?
A. Yes.
Q. After you had attended upon the lady who had had the fall and up until the time your shift finished did you do anything at all with the lights, the external lights in that time?
A. Yes. I turned them all off.
Q. What time did you turn them all off?
A. At 11.
Q. But before 11 o'clock did you do anything with the lights?
A. No.
Q. Why did you turn them off at 11 if your shift finished at 12?
A. We close the store at 11 and then I do - I stay back an hour to start my cash and do stock count.
Q. Was this particular night how would you describe it in terms of the busyness of the restaurant in a usual week, this particular night? I think it was a Thursday night, wasn't it?
A. Yes Thursday night, yes.
Q. How would you describe a Thursday night in April of 2013, in comparison to say, a Wednesday or a Tuesday or so forth?
A. Thursday is one of our busiest days because it is a late night shopping. Compared to a Monday or a Tuesday, it is very busy.”

Mr Ham gave evidence that he turned the exterior lights on manually and that they were not operated through a timing device. He gave the following evidence:

“Q. To your knowledge was there ever any need to make any adjustment to the lights for Daylight Saving?
A. No.
Q. Do you, on the night that you had the lady that fell over, you went to assist. At any stage whilst you were attending upon the lady, did you say anything about a timing device on the lights?
A. No.
Q. If all the external lights - that's the carpark lights, the playland lights, the verandah or patio lights - if they were all off, how would you describe the level of lighting in the area where you understood the lady to fall?
A. Without the lights on?
Q. Without the lights on?
A. Dark.
Q. Would you be able to complete the incident report form?
A. No.”

In cross-examination, Mr Ham agreed that saying Thursday was one of the busiest nights does not say anything about what happened on 11 April 2013. However, he said that he remembered that it was busy that night.
As to the lighting, he was asked:

“Q. You would have had no reason to check in accordance with the managed changeover that the external lighting was on at 4.00 pm on the 11 April 2013 would you?
A. No. As the shift progressed towards the sunset then I would turn the lights on - the exterior lights on.
Q. You say would have?
A. I would have.
Q. You mean by would have, that was your practice, don't you?
A. Practice?
Q. Yes that's what you usually did?
A. Yes.
Q. You don't mean you have a memory of doing it on this day do you?
A. I do because the lights I turn on every single day and night - fortnight yep.”

In respect of the incident report, Mr Ham was asked about the entry under the heading “Action already taken by restaurant”. Underneath that entry were the words “just given ice”, written in a different pen. He did not know why that was written in a different pen and he was asked as follows:

“Q Can't you remember how you filled this document out?
A. No. It was three years ago.
Q. And you've forgotten that sort of detail in three years, haven't you?
A. Yes.
Q. You've forgotten in three years whether you ever checked to see if the lights were on after the sun went down on 11 April 2013, haven't you?
A. No. I make sure that the lights are on every single night that I have the shift.
Q. What time did you check on 11 April 2013 to see that the lights were on?
A. Whether the lights were on, well, around 5 so 5 o'clock as the shift progresses if the sun sets, then I turn the lights on.
Q. Had the sun set at 5 o'clock on 11 April 2013?
A. I don't remember but it was roughly around 5 or 6 when the sun sets, that's when I turn the lights on.
Q. So what you're really saying is that your usual practice is to turn the lights on when the sun sets?
A. Yes.
Q. But you can't say you turned it on on this day, can you?
A. I did. I did turn it on because it's part of my checklist and I follow it every single half an hour.
Q. Irrespective of an emergency that might happen during the running of the shift?
A. No.
Q. That doesn't deter you from filling out the checklist?
A. No, because it has to be done no matter what.
Q. No matter if somebody has been burnt by some oil, you just fill out the checklist, do you?
A. If someone got burnt, yes, then I would attend to that person, but I always make sure that lights are turned on.
Q. You're very keen to make sure that his Honour has your position that you definitely turned the lights on, aren't you?
A. That's correct.
Q. And you will not countenance any possibility that by oversight they weren't turned on on 11 April 2013, will you?
A. No.
Q. Because you never make mistakes, do you?
A. We all make mistakes but lights was not - was not one of them.
Q. You said when you were asked how you switched the lights on, that you used the manual switch?
A. Yes.
Q. Just a single switch?
A. No. There's along - the carpark light switch so we turn that on along with the manual, the pylon lights, the roof sign.
Q. How many switches are there, Mr Ham?
A. I don't remember.
Q. No idea, have you?
A. No idea. It's been a while since I worked there.
Q. There certainly isn't one single manual switch, is there?
A. One manual switch to - yes, there is, that's what I remember so you've got the manual and then the rest of the switches that turns on with it so individual lights.
Q. Are turned on with it?
A. Yeah. So you turn the carpark lights on and then you switch it to manual so it's completely on.
Q. What do you mean by completely on?
A. So we've got the manual switch so the switch was manual, off and auto. Auto is light sensored. We don't keep it on light sensored any more because of the clouds that over - that overflows the - the exterior which makes the lights go off so that's why we leave it on manual and that's - ever since then I've always left it on manual.
Q. Ever since when?
A. When I started there.
Q. A moment ago you said, "We don't use the auto switch any more"?
A. Yeah. We don't use it at all.
Q. You said any more, didn't you?
A. I don't remember, did I?
Q. In your time at Prestons McDonald's the auto switch has been used, hasn't it?
A. Never.
Q. What was the evidence you gave a moment ago about the problem with cloud cover?
A. So that's what I've been told when I first started there that we don't use the auto switch because it's light sensored and if a cloud goes over it then the lights will go off so that's why we have always been putting it on manual ever since so like so when I first started that's the - that's the reason why we don't put it on auto. It's always been on manual.
Q. But as you understand it there is a facility in the switching gear to operate the lights automatically, isn't there?
A. Yes, there is.
Q. When you said when Mr Reynolds was asking you questions that you used the manual switch, using the manual switch would not turn on the carpark lights, would it?
A. Yes, it would.
Q. Without anything more?
A. Along with the carpark lights.
Q. If you turned only the manual switch it wouldn't turn on the carpark lights, would it?
A. Yes, it would because that's along with everything else so inside the interior needs to be on and then you have the carpark lights, the pylon lights and the roof sign lights.
Q. Each of which is on a separate switch?
A. All connects to one.
Q. But you need to switch each of those items, to take one, the pylon light needs to be switched as well, doesn't it?
A. Yeah.
Q. So turning the manual switch does not bring on all - the pylon light, the carpark light and the other lights you've mentioned, does it?
A. No.
Q. You've got to flick another switch, haven't you?
A. Yeah, so along with the switch, the individual switch, plus the manual switch.
Q. On a busy day, as you say this was?
A. Mm-hmm.
Q. You might forget to switch one of those switches, mightn't you?
A. Never.”

Mr Ham denied speaking to the lady’s husband and did not remember her son being there. His evidence was that the lady was there by herself, from what he could remember. He denied giving her a cup but gave her a clear glove with ice in it. He disagreed that the lighting was poor and denied that the car park lights, the lights on the patio, and the play land were not illuminated.
In re-examination, Mr Ham gave the following evidence:

“Q. There was just two matters I want to ask you. One was did I understand you correctly to say that in turning the lights on there was a two-step process. One you turned on the individual switches and then you turned on some master switch?
A. Yes.
Q. That's what I thought you said thank you. You were asked some questions about the shift management tool. After you did the initial survey when you started your shift then you used this tool on the half-hourly rotations that you were doing?
A. Yes.
Q. Did that involve you every half hour walking outside?
A. Yes.”

Evidence of Chantelle Margaret Gray

Ms Chantelle Margaret Gray gave evidence that she was employed by McDonald’s at Prestons in April 2013, however, she did not recall whether she was working on that night. She had no recollection of any incident that night, and did not recall seeing anyone fall. She had no knowledge of the switching that operated the lights at the restaurant. She was not cross-examined.

Evidence of Mr Christopher Davis

Mr Christopher Davis was the operations manager for a number of McDonalds’ franchise businesses, including the restaurant at Prestons. He had worked at the restaurant since 2000 when it first opened and he was the store manager. In 2009, he became the operations manager. He gave evidence of the daily labour activity report for the restaurant by reference to documents, which included a record for 11 April 2013. It included both projected sales figures and actual sales in respect of the various sales outlets within the restaurant. Those records were broken into 30 minute intervals and further broken down into shift totals. In respect of the external lighting system, he gave the following evidence:

“Q. From when you started there as the operations manager in 2009 up until 2013 to your knowledge was there any change in the lighting system operating at the Prestons McDonald's?
A. No.
Q. Were you trained in the use of the lighting system at Prestons McDonald's?
A. Yes.
Q. When was that?
A. When I opened the store back in 2000.
Q. Had there been any change in the lighting between 2000 and 2009 as far as you're aware?
A. No.
Q. Had you used the lighting system yourself to turn on the lights from time to time?
A. On numerous occasions.
Q. In relation to the external lights can you tell us whether the lighting was manual or automatic?
A. Manual.
HIS HONOUR: Would you clarify what you mean by external lights?
REYNOLDS
Q. What do you describe as the external lights?
A. External lights: all signage, car park lights.
Q. In relation to signage what signage was there at Prestons in April 2013?
A. We've got Letterset on the roof.
Q. I beg your pardon?
A. Letterset saying McDonald's on the roof.
Q. Yes. That's the roof of the building?
A. Yes. We've got seven car park pylons. We've got what's called the pylon sign which is the big arches.
Q. Where was the pylon sign?
A. It's just located right at the front of the store.
Q. Near Camden Valley Road?
A. Yes.
Q. Yes.
A. We also have various directional signs, you know, enter here, exit here, this way to the drive-through.
Q. There was a patio or a verandah, wasn't there?
A. Patio, yeah.
Q. Was that part of what - what lighting if any was there?
A. Just there's eave lights which basically go on all the time. They're turned on in the morning and are on till end of trade and they're right next to the glass surrounding the entire building. The patio lights, they've got some balls on - you know, along the patio basically.
Q. How would you describe the patio lights in terms of internal or external lighting?
A. Probably external.
Q. And was there a play centre?
A. Yes.
Q. Was there any lighting in the play centre?
A. Yes. There is a big--
Q. Just before you tell us about that, how would you describe the lighting in the play centre in terms of internal or external lighting?
A. Internal. It gets turned on when we start, when we open the doors to trade at 6am in the morning and gets turned off at close of trade at 11 o'clock.
…
Q. I was asking you before in relation to the external lights, did they operate manually or automatically--
A. Manually.
Q. I think you said manually?
A. Yes.
Q. In relation to the internal lights, did they operate either manually or automatically or in some other way?
A. They're all manual.
Q. In April 2013, what time did the McDonald's at Preston's open in the morning?

A. 6am.
Q. What time did it close in the evening?
A. 11pm.”

Mr Davis gave evidence that he had trained Mr Ham in the use of the shift management tool which was used every half hour during the shift.
Mr Davis was cross-examined extensively about the management practices.
Mr Davis was asked about the lighting switches and gave the following evidence:

“Q. You were asked some questions about - I'll approach it this way. Some work was done on the Prestons McDonalds between 2013 and the present time, wasn't it?
A. Yes.
Q. There were changes made to aspects of the lighting, weren't there?
A. Yes.
Q. Was the switching panel at Prestons changed at that time, to your knowledge?
A. No.
Q. Do you say that there was never an automatic operation of the lights at Prestons?
A. There was facility for - basically back when the store opened it had a sensor that sensed the ambient light in the corral, and that controlled outside lighting. So when it got dark it turned on. When it got light it turned itself off. However, what we found was every time a dark cloud would go over it would turn all the lights on; when the cloud was past it turned it all off, and that's very expensive with the amount of lighting, particularly in the pylon light. So we only ever, from the first year, used manual.
Q. The pylon light can be operated by a second switch, can't it?
A. No. There is a breaker switch there but it's turned on by a main switch, which--
Q. But you can turn off - I'm sorry. You can turn off the breaker switch, can't you?
A. Yes.
Q. You've got to flick the breaker switches and the master switch in order to turn a light on, haven't you?
A. We don't turn the breaker switch for the pylon off or on.
Q. Did you not understand my question?
A. If you repeat it.
Q. You have to turn the breaker switch on and the manual switch on in order to light a light, don't you?
A. Yes.
Q. There's only one master switch, isn't there?
A. Yes.
Q. So that during the course of the day, the external lights will not be switched on, will they?
A. No.
Q. And that must be controlled, mustn't it, by the breaker switches?
A. No.
Q. So the master switch would be switched on during the day for the internal lighting, would it not?
A. There is no master switch with the internal lighting.”

Mr Davis was shown a photograph of a light panel for the lighting in the store. When asked what lighting had been added, he gave evidence of changing the lighting to LED down lights. Notwithstanding that work, the switching arrangements had not been altered.
In respect of the sales records, Mr David agreed that between 6.30 pm and 8.30pm on 11 April 2013, the total number of people served was less than projected. There was no re-examination.

The expert evidence

The plaintiff relied on two reports from Mr Ian Burn dated 25 November 2015, and 13 October 2016. In the first of those reports, Mr Burn set out his results of testing by way of light metre readings taken on site on 3 November 2015, at 8.05pm (exterior lights on, interior restaurant light on), 11.00pm (exterior lights on, interior restaurant light on), and 11.00pm (exterior lights off, interior restaurant light on). The test results for the first two categories complied with the relevant Australian Standard (AS/NZS 1158.3.1: 2005 “Lighting for roads and public spaces – Pedestrian area (category P) lighting – Performance and design requirements”). The final set of tests did not comply with the relevant standards. Mr Burn therefore concluded:

“If car parks’ lights are inoperative, there is insufficient illumination or other means of identifying the kerb at the edge of the drive through drive-way to enable pedestrians unfamiliar with the restaurant to avoid tripping on the kerb as they proceed to the restaurant entrance door.”

The second report of Mr Burn dated 13 October 2016, responded to a report relied on by the defendants of Dr J Cooke dated 26 August 2016. Dr Cooke also took light metre readings for three categories, namely:

“All lights off except for internal restaurant lights.

Only the car park lights and main sign off and all other lights on.

All lights on.”

Dr Cooke did not agree with Mr Burn’s opinion that the level of illuminance should be evaluated against a level of 14 lux as derived from the tables in the Australian Standard referred to above. Nor did he agree with Mr Burn’s opinions regarding visual perception. He then set out his conclusions, which, having regard to the agreements set out in Ex 1, there is no need to repeat here.
Dr Burn’s report dated 13 October 2016 responded to Dr Cooke’s report. In that report, Mr Burn stated that the impression given to him during his inspection of the premises were that the lights were on a time switch, but that the switching for the exterior lights was not demonstrated by the restaurant operator. He concluded:

“There appears to be no means to verify what lights were operational, or during what periods they operated.”

Neither expert witness was required for cross-examination. They were, however, directed to meet and set out concisely where they agreed and disagreed. Exhibit 1 was tendered which sets out their joint report as follows:

“We have read and agreed to be bound by the Expert Witness Code of Conduct.
We agree that the kerb is plainly visible if all the lights are on.
If internal lights are on and car park lights are off, we agree that the level of illuminance on the kerb are EV (lux) 0.3-0.6 EH (lux) 0.3-0.5.
Dr Cooke’s opinion is that the recommended minimum level of illuminance is 2 lux on the kerb. Mr Burn’s opinion is that the recommended level of illuminance is 14 lux because of the drive through. Otherwise he would agree that 2 lux is recommended.
With car park lights off and main sign off, and all other lights on, (i.e. verandah lights on), we agree that the level of illuminance would have been adequate.”

Mr Burn was called to give evidence which included the following:

“Q. Did you meet some people from McDonald's at Preston?
A. Yes, there were three representatives from McDonald's there.
Q. Did you have a conversation with them?
A. Only very brief.
Q. What was the content of the conversation?
A. I asked about the lights and would I be able to get the lights to replicate how Mrs Bartusz said they were and they basically said no you can't, they go off at the end of trading, 11 o'clock at night.
Q. Were you told something about how the lights came on?
A. That they went on at a certain time of the evening depending on the time of the year, but nothing specific.”

There was no cross-examination.

The plaintiff’s submissions

Learned Senior Counsel for the plaintiff submitted that Mr Burn’s evidence that a McDonald’s representative at the inspection stated that “the lights were on as they were operated by a time switch”, was not challenged by the defendant, and therefore pursuant to the rule in Browne v Dunn (1893) 6 R. 67 that evidence should be accepted.
The plaintiff submitted that a foreseeable risk of injury arose if the exterior to the premises, including the car park, were not adequately lit because of the “relative unfamiliarity of the entrance to the premises with the type of hazards that may be present”. The risk of harm, identified for the purposes of s 5B of the CLA was “a risk of injury of falling or tripping on the premises because of an inability to see some object which is insufficiently illuminated”.
The central issue to be determined was whether the lights were on. The plaintiff and two witnesses, namely, her husband and son, were not in any doubt about that. On the other hand, Mr Ham, who was relied on by the defendant, said the exterior lights were on. However, a fundamental difference in his evidence was that he had no recollection of the presence of the plaintiff’s husband or son at the scene of her injury. It was submitted that he actually had no recollection of this day, and therefore the opportunity for error existed on his part. This opportunity extended to the light switches as confirmed by the evidence of Mr Davis, which comprised two elements in illuminating the exterior of the premises, namely, switches that individually operated various lights and a master switch. Each needed to be in a particular position in order for any given light to be illuminated.
It was submitted that given the business of the restaurant, a simple but uncomplicated act of turning on the light might escape the detection of the person responsible for it, which was Mr Ham. He had not been able to give an accurate account of what happened on that day, and had been shown to be in error in a very significant way.
It was submitted that if it were accepted that the lights were not on, then the experts were in agreement that the level of lighting did not reach the requisite standard.
The plaintiff submitted that, in respect of s 5B of the CLA, this was not a case about reasonable foreseeability. In this case, all the means of avoiding the risk of harm were installed (i.e. the lights), and all that was needed was for the lights to be switched on for the harm to be avoided. It was submitted that the plaintiff was taking reasonable care for her own safety by looking where she was going.
It was submitted that the Court would find that the lights were not on, and that was a result of a breach of a duty of care owed by the defendant to the plaintiff. Causation was made out pursuant to s 5D of the CLA, because the defendant’s breach was a necessary condition of the occurrence of harm.
Further, there should be no finding of contributory negligence. It was submitted that there was no suggestion that the plaintiff was not being cautious as she approached the restaurant. Her attention was drawn to the internal lighting and hence there was no contributory negligence.

The defendant’s submissions

Counsel for the defendant submitted that the Court would disbelieve the plaintiff, her husband and son on the issue of whether the exterior lights of the defendant’s premises were illuminated. The sales figures for the restaurant demonstrated that there was a steady stream of customers attending the restaurant from 6.00pm that night. By comparison with the same night two weeks before and after this event, there was no dramatic change in the numbers of guests. It was submitted:

“If the lights were turned off so that everybody, like the plaintiff and her husband, thought the place was closed, that you would see a dramatic drop in sales on the night of the incident, but that’s not the case.”

The defendant relied on the evidence of Mr Ham to the effect that he did turn the lights on and he did a cycle of the premises, including the exterior of the premises every half hour. It was submitted:

“It would be negligent in the extreme if Mr Ham was going out walking around in the dark and not realising the lights weren’t on and then did nothing about it. We know other staff went out because Mr Ham says that Chantelle was cleaning the tables out on the verandah at about the time the incident happened and came and got him and if it was as dark as the plaintiff and her witnesses described, it would be difficult to see:
How she was able to do what she was doing, and
Why she didn’t alert somebody to the fact that the lights were not on outside and it was just completely dark.
The third proposition is that Mr Ham was able to complete the incident report form next to the plaintiff after the incident in lighting where effectively you could see almost nothing.”

The defendant submitted that it relied on an alternative case, namely, that if it was found that the lights were off as they entered the driveway, the lights of their car would have illuminated the area sufficiently for them to realise there was a verandah which was elevated above the road. On the opposite side of the road where they parked was a hedge and there were visual clues, including the yellow bollard and a garbage disposal bin on the verandah. It was submitted that if it was as dark as the plaintiff made out, namely, that she could not see anything at all, the obligation was upon her to walk with care to make sure there was nothing in front of her.
Counsel submitted that there was no evidence that there was no ambient light at 8.00pm, or that there was not sufficient light to see a kerb. It was submitted:

“People walk around at night time on a regular basis and negotiate kerbs and gutters in the dark and there is sufficient light in the sky for people to be able to do that. It’s not suggested that this was such a black sky – there’s no evidence to suggest this was such a black sky that you couldn’t make anything out. So my submission is that she ought to have seen and she ought to have been alerted to the fact that there was something ahead of her that she had to step on.”

The same submissions underpinned the defendant’s case on contributory negligence.
In relation to the plaintiff’s case that the defendant should have painted the kerb in a way that would alert pedestrians to its presence, the defendant’s submission was that there was nothing that would alert the defendant to a need to have to paint the kerb in any way other than how it presented on the night.
On the central issue as to whether the lights were subject to a timing device and had not been altered following the end of daylight saving, it was submitted that the Court would accept the evidence of Mr Davis, which was unchallenged to the effect that there was no timing device on the lights. His evidence was that there had been an automated system available, but it had not been used since 2001. As to the plaintiff’s reliance upon the statement by Mr Ham that the lights had not been changed since daylight saving, it was submitted that did not assist the plaintiff’s claim in negligence because there was in fact no such device.
Counsel for the defendant submitted that the relevant risk of harm for the purposes of s 5B of the CLA was “a risk of falling or tripping on the kerb because it was insufficiently illuminated”. Counsel conceded that the risk of harm involved a risk of injury by falling, that that risk was foreseeable, however, it was not conceded that the risk was “not insignificant”.
It was further submitted that a reasonable person, pursuant to s 5B(1)(c) of the of the CLA, would not have done anything different to what the defendant did. In fact, after the incident, there was no evidence that Mr Ham did anything with the lights at all.
It was submitted that the matters set out in s 5B(2) of the CLA were not necessarily determinative of what a reasonable person would do in this particular case.
Counsel submitted, therefore, that a breach of duty of care was not made out in this case. It was fairly conceded that if the plaintiff fell because of the negligence of the defendant, causation was “obviously made out”.

Determination

Central to the determination of liability in this case is the factual issue of whether the external lights to the premises were on or off. The evidence of the plaintiff, her husband and son, clearly established that there were no external lights to the premises illuminated on the night in question. That included the McDonald’s sign on Camden Valley Way at the front of the premises, the car park lights, the verandah lights and the rooftop sign. Whilst it was suggested to each of those three witnesses that the lights were on, they did not accede to that proposition, and their evidence remained un-impugned.
It was not put to the plaintiff, nor was it pleaded, that she was bringing a fraudulent claim based on false evidence that the lights were off. Nor was it put to her husband and son that that was the case. Rather, the issue has to be determined on the balance of probabilities, weighing the evidence relied on by the plaintiff against that relied on by the defendant. That evidence constituted the evidence of Mr Ham, because the defendant called no other witness to demonstrate that the lights were off.
In addition to their direct evidence of the lack of external lighting, the plaintiff relied on the evidence of her husband as to what Mr Ham said to him about the defendant not changing the lighting following the expiry of daylight saving time, one week earlier. That conversation was denied by Mr Ham, who gave evidence that the plaintiff was not accompanied by her husband and son.
I accept the evidence of Mr Davis that the external lighting of the premises was operated by a master switch, together with individual switches for each of the particular lights. There was no timer switch on any of those lights, but rather, the lights were illuminated at a particular time during the day, before dusk. Notwithstanding his evidence about the shift management tool which required the store manager to check on the premises, including the exterior of the premises, every 30 minutes, I am not persuaded that Mr Ham in fact turned on the lights at the exterior of the premises on this night. His evidence was not corroborated by Chantelle Gray at all, and there is no other evidence establishing that the external lighting was on. No such inference couId be drawn from the presence of other customers, as they could have been doing exactly what the plaintiff and her family had set out to do, namely, to have a meal at the restaurant. I therefore accept the evidence of the plaintiff, and that of her husband and son, and find on the balance of probabilities that the exterior of the premises was in darkness as the plaintiff approached the entrance of the premises.
I accept the agreement of the two expert witnesses that, with the exterior lighting to the premises off, there was insufficient illumination of the kerb at the entrance to the premises.
Section 5B and 5C of the CLA provide as follows:

“5B 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 determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a) the probability that the harm would occur if care 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 that creates the risk of harm.

5C Other principles
In proceedings relating to liability for negligence:
(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and
(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and
(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.”

The risk of harm here, given that the exterior of the premises was in darkness, was the risk of a member of the public tripping on the kerb, so as to fall and injure themselves on approach to the front door of the premises. A short distance to the right of the kerb was a layback of the kerb which would have led to an insignificant risk of tripping and falling for patrons entering the premises. However, notwithstanding the vertical yellow coloured bollard, placed a short distance beyond the kerb, the kerb would not have been visible as the plaintiff approached.
I accept the plaintiff was taking reasonable care for her own safety and that her attention was drawn to the interior of the premises which were lit. That was understandable, as it was a Thursday night when the restaurant would normally be open, and she observed persons inside the restaurant.

In those circumstances, I find that the defendant breached its duty of care by failing to illuminate the exterior of the premises by switching the lighting on in the car park, and on the verandah. As conceded by Counsel for the defendant, causation pursuant to s 5D of the CLA was in those circumstances made out, and was not in dispute.

Contributory negligence

Contributory negligence is governed by ss 5R and 5S of the CLA, which provide:

“5R Standard of contributory negligence
(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
(2) For that purpose:
(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and
(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.

5S Contributory negligence can defeat claim
In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated.”

The effect of ss 5R and 5S of the CLA is that the same principles apply in determining contributory negligence and negligence, namely, ss 5B and 5C of the CLA, as set out above. Having regard to the facts as I have found them, namely, that the area was in total darkness, and having regard to the agreement set out by the experts, referred to above, together with my finding that the plaintiff was taking reasonable care for her own safety in those circumstances, I find that there was no failure by the plaintiff to take care for her own circumstances. There will therefore be no reduction of any damages by reason of the plaintiff’s own contributory negligence.

Damages

The plaintiff relied on the following schedule of damages:

Non-economic loss 30% of a most extreme case

$138,920.00

Past treatment expenses agreed

$9,607.88

Future treatment expenses

$30,000.00

Past economic loss

$80,000.00

Future economic loss - $550 pw x 309.4 x .85

Alternatively, the plaintiff claimed a buffer for the diminution of her earning capacity.

$150,000.00

Future superannuation

$18,000.00

Past superannuation

$8,000.00

Past gratuitous care and domestic assistance

$40,000.00

Future gratuitous care – 7 hrs x $27 x 703.8

$135,000.00

Total

$609,527.88

The defendant’s relied on the following schedule of damages:

Non-economic loss 23% of a most extreme case

$30,000.00

Past treatment expenses agreed

$9,607.88

Future treatment expenses – possible surgery

$15,000.00

Past wage loss – 10 weeks

$3,320.00

Future economic loss nil

Alternatively, the plaintiff would be entitled to a modest allowance by way of a cushion representing a period of no more than 4.5 years from the date of trial to age 72

Total

$57,927.88

The plaintiff’s evidence as to damages

The plaintiff gave evidence that she was admitted to Liverpool Hospital where she underwent an open reduction and internal fixation of two plates in her right arm, setting the fractured radius and ulna with 14 screws. She was discharged two days later and needed considerable assistance from her husband in dressing, toileting and with domestic duties, which had previously all been carried out by her. They included cooking, cleaning and running the household. Her husband attended to the cooking and cleaning after the accident, however, he had to work, and one of her sons, Patrick, also assisted her.
The plaintiff suffered an infection in her wound and an allergic reaction to antibiotics. After three or four weeks her infection cleared up and she commenced physiotherapy on her wrist and fingers. She discontinued the physiotherapy, however, she continued doing exercises herself for a period of 12 months. During that period, the plaintiff gave evidence that she was getting better “all along” and resumed cooking small things, but not larger meals, which her husband cooked. She gave evidence that she still could not use a vacuum cleaner or mop and had difficulty hanging laundry on the clothesline.
The plaintiff was a credible witness who gave her evidence in a candid fashion. However, three significant matters affected her credit overall. First, she gave evidence that she returned to work about eight months after the accident. This proved in fact to be three months after the accident, when she returned to a full time position at Blacktown Harley Davidson as a business manager, working 11 days per fortnight. She worked in that job for about a year starting at 8.30am and working until 6.00pm every night. That evidence was contradictory to the picture she painted of her inability to do housework, not only for the first 12 months following the accident, but up until the present time.
Secondly, the plaintiff engaged in hyperbole in describing the amount of time it took her husband to carry out domestic chores, for example, she gave evidence that it took him three hours each week to hang the washing out. The times she gave for the various household chores to be carried out by her husband or son were challenged in cross-examination, and were demonstrated to be somewhat unreliable.
The plaintiff left her employment at Blacktown Harley Davidson after being threatened by a customer. She then obtained employment with Heartland Holden a few months later, however, notwithstanding that it was full time employment, she left after three days. The plaintiff agreed in cross-examination that she thought she was capable of doing the job and she left because of the unethical behaviour of her employer.
Thirdly, in addition to her own employment, the plaintiff, who had bookkeeping skills, assisted her son in his business by completing his BAS documents. Her son’s tax return for the year ending 30 June 2015 showed earnings of $10,000 to the plaintiff from that business. Those earnings were not disclosed by the plaintiff in her own evidence in chief.
The plaintiff’s son, Patrick, gave evidence that following the accident he assisted the plaintiff to dress and undress herself, drive her places and do housework, including vacuuming, hanging out clothes and helping to cook the dinner. However, he moved out a few weeks after the accident, but visited her every day and assisted in the same way. In cross-examination, he agreed that he did help with some of the domestic duties before the accident, as well as mowing the lawns.
The plaintiff’s husband also gave evidence as to the assistance he provided to her following the accident. His evidence was to the effect that he helped her dress, shower, go to the toilet and did that for a period of “months and months”. When asked when he stopped doing that, he said “I’m still doing it now”. That involved doing vacuuming, cooking meals and helping with the 90% of the housework.
Mr Alex Bartusz was challenged about that evidence and agreed that his wife was working full time within three months of the accident. At that time, he was still helping her get dressed. However, he agreed that she worked in excess of a 38 hour week and that, as far as he was aware, she was looking after herself. Mr Alex Bartusz agreed that the plaintiff was doing more of the house cleaning. He was asked:

“Q. There no reason why she wouldn’t have done that from when she started working full time was there, as far as you’re aware?
A. No, but I just wanted to take the pressure off her and—
…
Q. Is that the case that most of the things that you do around the home, is just because you want to take the pressure off her?
A. Well she’s lost a lot of confidence and as I said, she’s slowly getting better and better, but it’s taken a long time.”

The plaintiff’s medical evidence

The plaintiff’s medical evidence became Ex D. Her local medical officer, Dr Labib, in a report dated 10 October 2015, confirmed that she sustained a fracture of the distal radius and ulna to her right wrist, and underwent surgery by way of open reduction and internal fixation with plates and screws. Her recovery was complicated by a superficial wound abscess which did not warrant antibiotics. She had physiotherapy over time for residual symptoms of stiffness, weakness and pain in the right wrist. Dr Labib felt that the plaintiff could expect some degenerative arthritic changes in her right wrist over time with possibly some residual symptoms.
The plaintiff was referred by her local medical officer to Dr M Perko, orthopaedic surgeon, on 16 June 2016, for an opinion regarding ongoing right wrist pain. Dr Perko reported the following on examination:

“Examination identifies well healed scars overlying both fractures. Wrist motion is reduced when compared to the opposite side and there is an ulna prominence on inspection with local tenderness and intermittent sharp pain overlying the ulna styloid Process. Radiographs show well healed fractures, however, there is evidence of post-traumatic radio-carpal joint changes. The radio-ulna joint is not involved. There is a non-union of the ulna styloid fracture.”

Dr Perko was of the opinion that the plaintiff would have difficulty carrying out prolonged repetitive activity and with lifting and carrying. Her condition would be improved by removal of the fragment from her ulna styloid, removal of the fixation plates and a radio-carpal arthrolysis.
The plaintiff relied on a report of Dr Robert Lewin, consultant psychiatrist, who was qualified by the defendant. The report is dated 8 December 2015. He noted that the plaintiff had no form of psychological assessment or treatment either before or after the accident in April 2013. He disagreed with a diagnosis of Post-Traumatic Stress Disorder made by Dr Altree-Clark on behalf of the plaintiff. However, he said:

“There is no dispute that Ms Bartusz suffered a psychiatric injury resulting from her emotional response to the physical injuries she received.”

Dr Altree-Clark did diagnose a Post-Traumatic Stress Disorder and recommended ongoing treatment by a psychiatrist and a psychologist for a period up to two years.
The plaintiff was also assessed by Dr Peter Giblin, orthopaedic surgeon, who found pain and stiffness in her right wrist, together with loss of function of her right hand. He was of the opinion that she would always have a need for ongoing domestic assistance, not dissimilar to what is now provided to her by her family. Further, the injury would “significantly chamfer her work opportunities in an open labour market as the injury has potential for persisting deterioration as well as material aggravation”. Dr Giblin, in a report dated 30 May 2016, was of the opinion that radiological studies showed ongoing instability and the development of post traumatic arthritis which would give rise to increasing pain and stiffness in the future. He stated:

“To that end, further surgical considerations which may well be appropriate, would include removal of the hardware and approximal row carpectomy operation.”

In total, the hospital, medical and ancillary costs of that operation would be in the order of $15,000.00.

The defendant’s medical evidence

The plaintiff was examined by Dr David Maxwell, orthopaedic surgeon, who on examination stated that the plaintiff had regained a good range of flexion, extension, radial and ulna deviation of the wrist and pronation and supination of the forearm following the fracture. She still had mild forearm muscle wasting indicating some disuse atrophy and slight stiffness of the middle finger of the right hand. In Dr Maxwell’s opinion, the injuries were consistent with the injury, however, he regarded her current stated disabilities to be “somewhat overstated”. Dr Maxwell was of the opinion that the reduction of the fracture had been excellent and that it was extremely unlikely that she would develop osteo-arthritis in her right wrist. There was no indication for removal of the plate and screws.
In a report dated 9 August 2016, Dr Maxwell stated his opinion that the pain in her wrist would make it difficult for the plaintiff to do heavier aspects of gardening, such as pruning or carrying heavy loads.
No doctors were cross-examined.

Determination

The injury suffered by the plaintiff to her right dominant wrist was a serious injury involving a fracture of the radius and ulna. The plaintiff underwent surgery by way of open reduction and internal fixation with two plates and screws to those fractures. She has continued to suffer ongoing pain and limitation of movement in her wrist which may be explained by the finding of Dr Perko that there was non-union of the ulna styloid fracture. I accept Dr Labib’s opinion that the plaintiff could expect some degenerative arthritic changes in her right wrist over time.
The plaintiff was born on 16 April 1949 and was 63 years of age at the time of her injury and is currently 67 years of age. In assessing non-economic loss, the plaintiff’s age at the time of assessment damage is a factor relevant to the assessment of non‑economic loss – see Reece v Reece (1994) 19 MVR 103. However, as the Court of Appeal held in Varga v Galea [2011] NSWCA 76 at [73], age is only one of the numerous matters the court takes into account in its assessment of non-economic loss, which is defined in s 3 of the CLA as meaning any one or more of the following:

“(a) Pain and suffering;
(b) Loss of amenities of life;
(c) Loss of expectation of life;
(d) Disfigurement.”

The plaintiff’s injuries must be assessed by reference to a “most extreme case”. Having regard to the severity of the injury, the need for surgery, and the ongoing disability suffered by the plaintiff in respect of her inability to lift and carry heavy objects, I assess her non-economic loss at 27% of a most extreme case. That would lead to an award of damages pursuant to s 16 of the CLA in the sum of $60,500.00.
Past treatment expenses are agreed at $9,607.88. As the plaintiff gave no evidence that she would undergo the surgery referred to by Dr Perko, I award her, against the possibility of that surgery, the sum of $15,000.00 for future treatment expenses.
For past wage loss, I award the plaintiff the sum of $3,320.00 for the first 10 weeks following the injury. Thereafter, the plaintiff was employed full time for 12 months and suffered no diminution of her earning capacity as a result of her injury. When she left the employment of Heartland Holden, she did so for her own reasons and not as a result of her injury or any incapacity arising therefrom.
In respect of the plaintiff’s claim for past wage loss from July 2014 to the date of the hearing, I take into account the evidence of her earnings from her son’s business of $10,000.00 in the 2015 tax year. I accept that the plaintiff has suffered some diminution in her earning capacity, namely, that her injuries and the disabilities arising therefrom are, or may be, productive of financial loss. For the period from July 2014, I assess that loss as a lump sum of $15,000.00, which includes past superannuation. The total award for past wage loss is therefore $18,320.00.
Having concluded that the plaintiff suffers an ongoing diminution of her earning capacity, she is entitled to be compensated in respect of that loss. Pursuant to s 13 of the CLA, the court must assess the plaintiff’s “most likely future circumstances but for the injury”. Here, I find that the plaintiff would have continued to work to age 72, a period of less than 5 years. The award is not capable of arithmetic calculation and for future economic loss I award her a buffer, to include any superannuation benefits, of $25,000.00 – see Penrith City Council v Parks [2004] NSWCA 201.
The plaintiff’s claim for past gratuitous care is problematical. To be entitled for an award of damages under that head, she must satisfy the dual threshold in s 15(3) of the CLA that the services were provided for at least six hours per week and for a period of at least six consecutive months. I accept the plaintiff’s evidence, and that of her husband and son, that the plaintiff required considerable care following her discharge from hospital, and for a number of months thereafter. I do not accept that the plaintiff has established a need for that care to that level following her return to full time work in July 2013. I accept that precision is impossible on the evidence before me and the question is largely one of impression – see McConachie t/as Willancorah Pastoral Company v Pack [2004] NSWCA 148. However, it is not permissible to average the assistance required from the day following the accident through to the date of the hearing – see Sampco Pty Ltd v Wurth [2015] NSWCA 117 at [91]. For these reasons, I find that the plaintiff has not satisfied the threshold test set out in s 15 of the CLA to enable her to be awarded damages for gratuitous attendant care services.
The plaintiff abandoned her claim for paid care and assistance into the future at the hearing. Having regard to the finding made above, no damages should be awarded for future gratuitous care given that the plaintiff has not satisfied s 15 of the CLA. In any event, I accept the plaintiff’s husband’s evidence that he has been providing her with assistance, “just to take the pressure off her”, and not as a result of any need for those services to be provided. I therefore refuse to make any award for future gratuitous care and domestic assistance.

Summary of damages to be awarded

I therefore assess the plaintiff’s claim as follows:

Non-economic loss

$60,500.00

Past treatment expenses agreed

$9,608.00

Future treatment expenses

$15,000.00

Past wage loss

$18,320.00

Future economic loss, including superannuation

$25,000.00

Total

$128,428.00

Orders

I make the following orders:

Verdict and judgment for the plaintiff against the defendant in the sum of $128,428.00.

The defendant is to pay the plaintiff’s costs of the proceedings.

The exhibits are to be returned forthwith.

Any application for a special costs order must be made by way of Notice of Motion, together with affidavit evidence in support of the application, to be filed with 5 days’ notice.

***********

Amendments

01 December 2016 - Paragraph 107 the amount of $60,400.00 increased to $60,500.00

Paragraph 114 - In table - Non-economic loss amount $60,400.00 increased to $60,500.00. Total amount of $128,328 increased to $128,428.00.

Paragraph 115(1) - Judgment total of $128,328.00 increased to $128,428.00.

Decision last updated: 01 December 2016

Medium Neutral Citation:	Monica Bartusz v The Trustee for the North Hill Hamburger Trust (ABN 79725876221) [2016] NSWDC 320
Hearing dates:	7 – 9 November 2016
Decision date:	25 November 2016
Jurisdiction:	Civil
Before:	Mahony SC DCJ
Decision:	Verdict and judgment for the plaintiff. For Orders see [115]
Catchwords:	Tort; trip and fall on defendant’s premises
Legislation Cited:	Civil Liability Act 2002 (NSW)
Cases Cited:	Browne v Dunn (1893) 6R 67 McConachie t/as Willancorah Pastoral Company v Pack [2004] NSWCA 148 Penrith City Council v Parks [2004] NSWCA 201 Reece v Reece (1994) 19 MVR 103 Sampco Pty Ltd v Wurth [2015] NSWCA 117 Varga v Galea [2011] NSWCA 76
Category:	Principal judgment
Parties:	Monica Bartusz (Plaintiff) The Trustee for the North Hill Hamburger Trust (Defendant)
Representation:	Counsel: R Sheldon SC with L Goodchild (Plaintiff) W Reynolds (Defendant) Solicitors: Bandeli Hagipantelis Sparke Helmore
File Number(s):	15/94085
Publication restriction:	Nil

Non-economic loss 30% of a most extreme case	$138,920.00
Past treatment expenses agreed	$9,607.88
Future treatment expenses	$30,000.00
Past economic loss	$80,000.00
Future economic loss - $550 pw x 309.4 x .85 Alternatively, the plaintiff claimed a buffer for the diminution of her earning capacity.	$150,000.00
Future superannuation	$18,000.00
Past superannuation	$8,000.00
Past gratuitous care and domestic assistance	$40,000.00
Future gratuitous care – 7 hrs x $27 x 703.8	$135,000.00
Total	$609,527.88

Non-economic loss 23% of a most extreme case	$30,000.00
Past treatment expenses agreed	$9,607.88
Future treatment expenses – possible surgery	$15,000.00
Past wage loss – 10 weeks	$3,320.00
Future economic loss nil Alternatively, the plaintiff would be entitled to a modest allowance by way of a cushion representing a period of no more than 4.5 years from the date of trial to age 72
Total	$57,927.88

Non-economic loss	$60,500.00
Past treatment expenses agreed	$9,608.00
Future treatment expenses	$15,000.00
Past wage loss	$18,320.00
Future economic loss, including superannuation	$25,000.00
Total	$128,428.00