Parker v City of Bankstown RSL Community Club Ltd

[2015] NSWCA 246

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Parker v City of Bankstown RSL Community Club Ltd [2015] NSWCA 246
Hearing dates:	31 July 2015
Date of orders:	21 August 2015
Decision date:	21 August 2015
Before:	Macfarlan JA at [1]; Simpson JA at [45]; Sackville AJA at [46]
Decision:	(1) Appeal dismissed with costs
Catchwords:	TORTS – negligence – occupier’s liability – appellant injured as result of fall at dance concert held in first respondent’s auditorium – whether primary judge erred in finding that strip lighting on steps in the auditorium was illuminated – whether steps adequately lit – appeal dismissed
Category:	Principal judgment
Parties:	Kathleene Parker (Appellant) City of Bankstown RSL Community Club Ltd (First Respondent) Glenda Yee (Second Respondent) Dennis Reginald Yee (Third Respondent)
Representation:	Counsel: L King SC/I Ryan (Appellant) R Cavanagh SC (First Respondent) M S White SC (Second and Third Respondents)   Solicitors: Brydens Lawyers (Appellant) Thompson Cooper Lawyers (First Respondent) Colin Biggers & Paisley (Second and Third Respondents)
File Number(s):	CA 2014/176259
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Common Law Division Citation: Parker v City of Bankstown RSL Community Club Ltd [2014] NSWSC 772 Date of Decision: 11 June 2014 Before: Adamson J File Number(s): SC 2010/109965

Judgment

1. MACFARLAN JA: On 22 December 2007 the appellant, Mrs Kathleene Parker, fell down a step in the first respondent’s (the “Club’s”) auditorium in which the second and third respondents (the “Yees”) were conducting a concert for the students of their dance school. Two of Mrs Parker’s children were participating in the concert. Mrs Parker suffered severe injuries, with the result that in 2010 she commenced proceedings in the Common Law Division of the Supreme Court claiming damages for negligence from the respondents on the basis, principally, that the steps inside the auditorium were inadequately lit at the time of her fall.

2. Following a hearing in May 2014, Adamson J, by a judgment of 11 June 2014, directed the entry of judgment for the current respondents and dismissed the cross claims between them ([2014] NSWSC 772).

3. Mrs Parker appealed to this Court, contending that her Honour erred in not finding that the respondents had been negligent and challenging her Honour’s assessment of the damages that would have been payable if Mrs Parker had been successful.

4. For reasons that appear below, I consider that Mrs Parker’s appeal should be dismissed.

THE FACTUAL CIRCUMSTANCES

5. At the concert on 22 December 2007, some hundreds of people were seated at tables arranged on three tiers in the auditorium. On the lowest, centre, tier there were 30 tables of 10 people. On each side, and perpendicular to the stage, there were raised sections containing 10 tables each. The step up to them was a relatively small one. Behind each of these levels and higher than them was a further level containing five tables on each side, the step up to that level again being relatively small (about 150 millimetres). The first tier had a hard wooden floor and was used as a dance floor on other occasions while the second and third tiers were carpeted.

6. The concert commenced at 2pm. The overhead house lights were on between dance performances on the stage but during the performances they were off. Light from the stage did to some extent permeate the auditorium, as did light from a bar and a snack bar located at the back of the auditorium, at the opposite end to the stage.

7. Strip lighting, consisting of small lights placed close to each other at regular intervals, was installed along the edges of the steps that separated the tiers. The lights were on the edge of the steps, between the riser and the tread, at about a 45 degree angle to both. There was an issue in the proceedings as to whether the strip lighting was on during the concert, in particular at the time that Mrs Parker fell. The primary judge held that it was (Judgment [35]). There was also a wide metal strip located on the top edge of the steps.

8. Mrs Parker and her family were seated at a table on one side of the top tier at the end near the stage. Mrs Parker did not leave her seat until, in accordance with apparent encouragement by the Yees to parents to collect their children after they had performed, some time before 5pm when she walked from her table along the back of the top tier away from the stage and towards the bar and snack bar end of the auditorium where she had earlier entered. When near that end, she turned towards the center intending to go down to the Collection Area to pick up her children and, on her evidence, failed to see the step down from the top tier to the next, falling heavily as a result. The overhead house lights were off when she fell because a performance was occurring on the stage at that time.

9. Mrs Parker had also attended the dance school’s 2007 mid-year concert at the same auditorium.

10. At the hearing before Adamson J, Mrs Parker’s counsel tendered two expert reports of Mr Neil D Adams. Despite efforts to do so, Mr Adams was unable to inspect the auditorium prior to preparing these reports. His principal conclusion in his first report was that the steps between the tiers represented hazards (at [4.5]) and that a reasonable precaution that the respondents could and should have taken to prevent people falling was to install and operate a strip of floor lighting along the nosing of the steps (at [4.6]). Prior to his second report, Mr Adams was shown a report of Dr John Cooke, obtained by the Club, which referred to the fact that strip lighting was already installed in the auditorium and had been functioning at the time of Mrs Parker’s fall. Mr Adams’ supplementary report stated:

“2.1   … Both Dr Cooke and I agree that such lighting was both appropriate and necessary, and that in the absence of such lighting the situation would have been potentially hazardous.

…

Conversely, if the Court accepts that step lighting was provided, I would agree with Dr Cooke that the step would not have been inherently hazardous and should have been visible to Mrs Parker, providing it was not obscured from her view by a clutter of tables, chairs, people and/or their belongings”.

11. Mr Adams later inspected the auditorium before preparing a joint conclave report with Dr Cooke. In this report Mr Adams expressed the view that, even if illuminated, the strip lighting was inadequate because, by reason of it being angled to the floor near the top of the step, “it could not be seen even by alert pedestrians until they were very close to the step” (Expert Conclave Report [5]). Dr Cooke did not agree that the strip lighting was inadequate (ibid). In their joint oral evidence, the experts agreed that a person would not be able to see the strip lighting from more than about a metre away (Transcript p 288).

The Judgment at First Instance

Whether the strip lighting was on

12. The primary judge dealt first with the issue of whether the strip lighting was on during the concert and, in particular, at the time that Mrs Parker fell. Her Honour concluded that it was on and referred to the evidence mentioned below. It was common ground that if the strip lighting had been off, one or more of the respondents would have been negligent and liable to pay damages to Mrs Parker.

13. First, her Honour rejected Mrs Parker’s evidence that if the strip lighting had been on immediately before she fell, she would have seen it (which she said that she did not). Her Honour held that Mrs Parker fell because she “was not looking where she was going” (Judgment [35]) and that “her conviction that the strip lighting was off is likely to be the result of her belief that she was not to blame for what had happened to her …” (Judgment [36]).

14. Secondly, her Honour found that a video tape of the concert that was in evidence did not assist her in determining whether the strip lighting was on (Judgment [19]-[20]).

15. Thirdly, her Honour noted that there was no evidence that any other person fell as a result of inadequate lighting at the concert (Judgment [21]).

16. Fourthly, her Honour noted that Mrs Parker’s husband, Mr Sean Parker, did not know whether the strip lighting was on or not (Judgment [22]).

17. Fifthly, her Honour did not accept the evidence of Mr James Parker, Mrs Parker’s eldest son, to the effect that whilst performances were taking place on stage, “anyone facing the stage would be sitting in pitch darkness” (Judgment [23]).

18. Sixthly, her Honour accepted the evidence of Ms Kerry Donaldson, the Club’s Function Co-ordinator, that when she arrived at the auditorium on 22 December 2007 she turned the house and strip lights on and subsequently checked that the strip lighting was on from time to time during the course of the afternoon, including after Mrs Parker was taken to hospital (Judgment [24]).

19. Seventhly, her Honour accepted the evidence of Mr Joseph Dib, the Duty Manager of the Club, that he observed that the strip lighting was on when he entered the auditorium at the start of the concert. He said that he confirmed that the strip lighting was still on after Mrs Parker was taken to hospital (Judgment [25]).

20. Eighthly, her Honour accepted the evidence of Ms Dianna Mansour, whose younger two daughters were performing at the concert, that she used part of the strip lighting as a guide to walking around, albeit in a different area to that where Mrs Parker fell (Judgment [26]).

21. Her Honour also concluded that the possibility that one section of the strip lighting had been turned on whilst another or others were off could be excluded because it was operated by one switch (Judgment [31]).

How Mrs Parker fell

22. After considering, in particular, a Club Incident Report Form and the medical reports of Dr Jonathan Herald who treated Mrs Parker, her Honour concluded that rather than simply not noticing the step, Mrs Parker tripped on an object which caused her to fall (Judgment [50]). This finding was challenged on appeal, with much attention being devoted to the admissibility of the Incident Report Form and the likely accuracy or inaccuracy of the history recited in Dr Herald’s first report.

Mrs Parker’s alternative case

23. The primary judge noted that Mrs Parker’s principal case was that the strip lighting was off when she fell but concluded that there was overwhelming evidence to the contrary. Her Honour thus rejected this case (Judgment [54]-[55]).

24. Her Honour then dealt with Mrs Parker’s alternative case, namely, that the respondents were negligent even if the strip lighting was on because the installation and operation of that lighting did not adequately respond to a not insignificant risk of someone not seeing the steps between the tiers in the auditorium and falling.

25. Her Honour reached the following conclusions:

“49   The experts' views, however, differed in their opinions on the assumption that the strip lighting was illuminated. Dr Cooke said that if the strip lighting was on, someone heading in a downward direction who was approaching a step would see the step in enough time before it presented a hazard. Mr Adams disagreed. However when Mr Adams inspected the Club he did not try to replicate the lighting conditions that were present on the night. Nor did he take into account the metal strip at the edge of each tier. His opinion was directed to the question when Mrs Parker could see the light source itself rather than when the step would be illuminated such that she could reasonably detect its presence. In cross-examination he conceded that the effect of the strip lighting would be greater when the ambient light was lower and that the metal strip would tend to have the effect of enhancing the effect of the strip lighting. I do not accept Mr Adams' evidence that the time within which a person such as Mrs Parker could discern the step was insufficient. I prefer Dr Cooke's evidence.

…

56   Her alternative case was that, even if the strip lighting was on, the steps presented an unreasonable danger to those descending the steps in a darkened auditorium because they could only be seen about one metre away. I do not consider that it follows from this fact that the steps presented a hazard. They were an obvious risk. The difference in the heights of the tiers was indicated not only by the strip lighting but also by the difference in the heights of the table surfaces and the elevations of the respective spectators at the different levels. I do not accept Mr Adams' view that any further illumination was required. The plaintiff has failed to establish any alleged breach of duty against the Club.”

RESOLUTION OF THE APPEAL

26. I address the issues argued on appeal as follows.

Whether the strip lighting was on

27. Mr L King SC, who appeared with Ms I Ryan for Mrs Parker, contended in oral argument that the primary judge’s finding that the strip lighting was on was flawed because the general evidence that the strip lights were illuminated on the day of the concert did not indicate that that was the case at the precise place where Mrs Parker fell. In particular, Mr King contended that the primary judge’s conclusion that one switch operated all of the strip lighting was not warranted by the evidence. (There appears to have in fact been two places where such a switch was located but that is immaterial).

28. I reject these submissions. Ms Donaldson agreed that to turn the strip lighting on “you flick a switch” (Transcript p 254) and a photograph of the switchbox in evidence shows a single switch labelled “RISERS”. There is a high probability that this referred to the strip lighting and Mr King could not suggest any alternative. As there was no contrary evidence, nor any examination of the issue at first instance, this evidence justified her Honour’s finding that a single switch operated the strip lighting. In any event, the Court was not taken to any suggestion made on behalf of Mrs Parker to any witness that the strip lighting was, or may have been, partially on and partially off. In the absence of such a suggestion, Ms Donaldson’s and Mr Dib’s evidence should be taken literally, that is, as indicating that the strip lighting was on.

29. In her written submissions, Mrs Parker also contended that the primary judge’s finding that the strip lighting was on was flawed because her Honour should not have accepted Mrs Mansour’s evidence. Counsel for Mrs Parker contended that the fact that the strip lighting was on was apparently Mrs Mansour’s one and only distinct recollection and that “[a]ll of the other witnesses had no cause to remember whether the lighting was on at the time the plaintiff fell and their evidence can properly be understood as no more than evidence of the usual position” (Appellant’s Written Submissions [58]). I reject this submission. Mrs Mansour had cause to remember whether the strip lighting was on because she said that she used it to guide her passage through the auditorium. Further, no sound basis has been given for departing from her Honour’s assessment of Mrs Mansour’s reliability (see Judgment [26]).

30. The second aspect of Mrs Parker’s submissions should also be rejected. Both Ms Donaldson and Mr Dib did have “cause to remember” whether the strip lighting was on because it can be inferred that it fell within the ambit of their duties to ensure that it was. Further, Mrs Parker’s fall must have given them cause to think on the day in question about what had been the position in that respect. In fact, both gave evidence about checking that the strip lighting was on after Mrs Parker was taken to hospital. There was no suggestion in the evidence that someone had intervened after the fall to turn them on.

31. In these circumstances, the primary judge’s finding that the strip lighting was on when Mrs Parker fell must stand.

Whether Mrs Parker tripped over an object rather than missed the step between tiers

32. The primary judge’s conclusion that Mrs Parker tripped on an object, rather than fell because she did not see the step between the tiers, constituted a distinct reason for her Honour’s conclusion that Mrs Parker’s case failed, namely, that if she tripped in this fashion, her injuries did not result from an inadequately illuminated step. I note in this respect that, as acknowledged by her counsel on appeal, Mrs Parker’s case did not extend at first instance or on appeal to an allegation that if she tripped on an object she did so because the relevant part of the auditorium was inadequately, or not at all, lit by the house lights.

33. Independently of her conclusion that Mrs Parker tripped on an object, the primary judge found that the step on which Mrs Parker fell had not been shown to be inadequately lit. As I agree with this independent finding, it is unnecessary to address the finding that Ms Parker tripped on an object. Instead, it can be assumed, in her favour and contrary to the finding that she tripped on an object, that she fell simply because she did not see the step. I therefore proceed to address the finding that the step was adequately lit.

Whether the step was inadequately lit

34. Mrs Parker made the following submissions relevant to this issue.

35. First, she submitted that the area in which she fell was congested with people, tables and chairs making it difficult for her to negotiate.

36. Secondly, she emphasised that parents attending the concert were required, or at least encouraged, to collect their children after their performances and therefore to move around the auditorium when the house lights could have been off because other performances were occurring on the stage.

37. Thirdly, she submitted, contrary to the primary judge’s conclusion, that the heights of the heads of the people on the next lower tier would not have indicated to Mrs Parker the presence of a step in her path. She submitted that the fact that people were on a lower tier would not have been obvious due to the natural variation in the seated people’s height and the smallness of the step (150 millimetres).

38. For the following reasons I do not consider that Mrs Parker has demonstrated that the primary judge’s conclusion that the strip lighting was adequate was in error.

39. First, there was undoubtedly some congestion on the tier where the Parker’s table was situated. However, the evidence did not indicate that it was such that it obscured Mrs Parker’s view of where she was walking. Indeed, Mrs Parker accepted that she “could see there was a passageway through the tables and chairs” and that she “walked through that passageway” (Transcript p 37).

40. Secondly, although the auditorium was dark when Mrs Parker fell, there was clearly some degree of visibility as Mrs Parker identified the passageway referred to above and did not at any stage of her evidence say that she could not see at all. She instead spoke of “navigating my way through the crowds, making sure I didn’t tread on people” (Transcript p 97).

41. Thirdly, whilst the visual cue that the people’s heads provided would, for the reasons submitted by Mrs Parker, have been of limited assistance, it cannot be totally disregarded, particularly as Mrs Parker had been sitting at a table on the top tier, with the house lights at times illuminated, for some hours. As that top tier was only one table wide, she was sitting near to the step down to the tables on the next tier, with the middle, lowest, level also well in view. In addition, she was familiar with the auditorium layout after previously attending the mid-year concert.

42. Fourthly, there is no basis for concluding that the primary judge erred in accepting Dr Cooke’s view over that of Mr Adams. Both considered that the strip lighting would have been visible from about a metre away (Transcript 288). The darkened state of the auditorium would have led a reasonable person to travel Mrs Parker’s route slowly and carefully, watching for tables, chairs, bags and the like including, importantly for present purposes, the step that that person would have known he or she was approaching. One metre’s notice to someone proceeding in this fashion is not in my view unreasonable, even if no account is taken of the prominent metal strip marking the edge of the steps.

34. It follows that Mrs Parker has not established that the primary judge’s rejection of her alternative case was in error.

ORDERS

44. As Mrs Parker has not established that the primary judge erred in rejecting either her principal or alternative case, her appeal must be dismissed with costs. As I consider the outcome of the appeal to be clear and no significant oral argument was addressed to the issues of damages raised by the Amended Notice of Appeal, it is not necessary to deal with those issues.

45. SIMPSON JA: I agree with Macfarlan JA.

46. SACKVILLE AJA: I agree with Macfarlan JA.

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Decision last updated: 21 August 2015