| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : PRIMROSE -v- KLEPEACH PTY LTD t/as MCDONALDS ROCKINGHAM [2005] WADC 260 CORAM : GROVES DCJ HEARD : 28 & 29 SEPTEMBER 2005 DELIVERED : 22 DECEMBER 2005 FILE NO/S : CIV 3069 of 2001 BETWEEN : VANESSA MARY PRIMROSE Plaintiff
AND
KLEPEACH PTY LTD t/as MCDONALDS ROCKINGHAM
Defendant
Catchwords: Negligence - Occupier's liability - Whether defendant owed a duty of care to plaintiff - Scope of duty - Whether defendant breached duty - Plaintiff slipped on brick paved stairway - No obvious risk - No breach of duty
Legislation: Nil
Result: Action dismissed
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Representation:
Counsel:
Plaintiff : Mr F Sammut
Defendant : Mr J D Allanson
Solicitors:
Plaintiff : F Sammut & Co
Defendant : Jarman McKenna
Case(s) referred to in judgment(s):
Australian SafeWay Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
Avenhouse v Hornsby Shire Council (1998) 44 NSWLR 1
Cavalier v Pope [1906] AC 428
Donoghue v Stevenson [1932] AC 562
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
Hackshaw v Shaw (1984) 155 CLR 614
Jaenke v Hinton (1995) A Torts Reports 81-368
Lane v Cox [1897] 1 QB 415
Romeo v Conservation Commission of The Northern Territory (1998) 192 CLR 431
RTA v McGuinness [2002] NSWCA 210
Snitzer v Becker Milk Co (1976) 75 DLR (3d) 649
Tame v State of New South Wales (2002) 211 CLR 317
Wyong Shire Council v Shirt (1980) 146 CLR 40
Case(s) also cited:
Nil
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1 GROVES DCJ: The plaintiff claims damages for personal injuries sustained by her when she suffered a fall on 28 August 1997. The defendant denies liability.
Circumstances giving rise to claim 2 The defendant operates a McDonald's Restaurant outlet at the corner of Read Street and Robinson Road at Rockingham ("the Restaurant"). On 28 August 1997 at approximately 7 pm the plaintiff in company with her husband who was driving and her two sons travelled to the Restaurant to purchase take-away meals. Their vehicle was parked at the kerbside on Robinson Road adjacent to the Restaurant. The plaintiff's husband crossed over Robinson Road and went to a pizza shop to get a take-away pizza. The plaintiff and her two sons proceeded from the parked vehicle via the driveway entrance into the parking area adjacent to the Restaurant and then into the Restaurant. After making her purchases the plaintiff exited the Restaurant through the main entrance carrying in one hand a burger bag, ie, a bag containing hamburgers, and in the other hand a cardboard tray provided by the Restaurant with drinks in containers on the tray. 3 After exiting the Restaurant the plaintiff proceeded across the sealed parking area towards stairs which led down from the parking area to a concrete footpath running along the kerbside of Robinson Road. 4 At the time it was not raining but rain had fallen some time prior to 7 pm and the grounds and paving outside the Restaurant were said to have been wet. The approach to the stairs (as the plaintiff approached them) is marked between two disabled parking bays by a yellow painted walkway on the car park pavement. There is a raised concrete kerb at the edge of the parking area and at the same height as the top of the kerb is the top platform of the stairway. The stairway is constructed of common brick pavers. From the top platform there are three steps to the bottom paved platform and then a half step, the height of a brick paver to the concrete footpath. Adopting the standard measurement (23 cm x 11 cm x 7.5 cm) for the type of brick paver depicted in photographs tendered in evidence (exhibits 1C and 1D) the dimensions of the stairway are approximately as follows: width 120 centimetres, top platform (kerb to lip of step) 60 centimetres, height of step down 15 centimetres, width of tread of each stair to front edge 34 centimetres. On either side of the stairway is raised brickwork which defines the edge of the stairway. On either side of the stairway between the car parking area and the Robinson Road footpath is a garden bed with a retaining wall which runs along the edge of the
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Robinson Road footpath. About a metre either side of the stairway are planted cottontail palms of an estimated 3 metres in height. Along the garden bed at 2 - 3 metre intervals are similar sized cottontail palms. 5 The plaintiff proceeded onto the top platform of the stairway and then placed her left foot down onto the first step. She felt her left ankle twist whereupon she fell down the remaining steps of the stairway and thereby sustained injuries ("the accident").
The plaintiff's evidence 6 The plaintiff was born on 9 May 1958 and was 39 years of age at the date of her fall. After leaving school she trained as a florist and earned a Floral Art Diploma. She was good in her art and won a number of awards for her floral arrangements. She worked, as she described, in the "back shop" preparing floral arrangements for a number of employers. She did not work in the "front of shop" having contact with the customers. In October 1980 she married and continued working until 1983 prior to the birth of her first son. She had three sons by that marriage which ended in divorce in 1989. In 1993 she married her present husband. In 1996 her husband commenced an internet service provider business and she helped him in a non-paid capacity carrying out various functions. 7 On the evening in question she was accompanied by her second and third sons, namely Robert and Brendan. When they exited McDonald's with their mother they took off across the garden bed to the Robinson Road path and did not use the stairway. 8 The plaintiff was wearing low heeled black shoes which had leather uppers and rubber soles. It was her evidence that when she put her left foot down on the first step there was "something there", her left ankle twisted under her and she fell down. She said that she "put her foot down and felt something not right and her foot twisted underneath her". She also said "something wrong with the step there". In cross-examination she said she saw the step and "put her left foot on the second step – something happened so quick and twisted foot in and under and fell and screamed – it all happened so quick – it felt different on paving – felt different under my foot". When asked had she slipped or tripped she responded: "I don't know."
Evidence of the plaintiff's sons and husband 9 The plaintiff's second son Robert was 12 years old at the material date. On leaving McDonald's he described his mother carrying in one
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hand a bag with food in it and a tray with drinks in the other hand. She walked across towards the stairs. He and his brother decided to go across the garden area three to four metres from the stairs. They went ahead of their mother. When he looked back towards her he saw her in the course of falling. The food which she was carrying went up in the air and he described her as falling backwards down the stairs and ending up part on the bottom step and the rest of her on the footpath. He ran across and observed that her right leg was twisted up behind her. He went over the road to the pizza shop where he summonsed his stepfather. He described the lighting in the area of the stairway as poor and dimly lit. The nearest light was further towards the back of McDonald's and there was light coming up from the McDonald's store. There was a light at the front of the store (Read Street frontage) facing play equipment. He said there was no lighting on the steps themselves. 10 The plaintiff's third son Brendan was 11 years old at the time. He described leaving the Restaurant and he and his brother went to go straight towards the pizza shop through the trees and jump down to the footpath. He heard "a scuffle" sound and looked towards his mother and saw her arms going up in the air as she fell. He went to her. He said that the stairs and the pavement where she was lying were not wet. He described the stairs as being shaded by the cotton palms but said that he could see a little bit although it was dim light. There was no direct light on the steps. He said the restaurant was lit up as was the car park area. 11 Shannon Primrose, the plaintiff's husband, was summonsed from the pizza shop by Robert. He ran over to the plaintiff who was obviously in pain and was holding her right foot which was bent right back behind her. He described the area of the stairway as being dimly lit.
The plaintiff's injuries and treatment 12 The plaintiff was taken by ambulance firstly to the Rockingham/Kwinana District Hospital prior to transfer to the Fremantle Hospital where she came under the care of Mr P J Bath, orthopaedic surgeon. She had suffered a fracture to the right tibia and fibula. In theatre on 29 August 1997 she underwent open reduction and internal fixation of the fractured right tibia and fibula. A plaster of Paris back slab was applied. Her post-operative recovery was uneventful. She was seen by physiotherapists and mobilised using a Zimmer frame. She was discharged from hospital on 10 September 1997 with oral analgesia prescribed.
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13 At her solicitor's request the plaintiff was reviewed by Mr Bath on 23 March and 29 March 2005. His report notes:
"The fractures have healed with good alignment. Current x-rays taken some seven years or so following the injury failed to show any arthritic change and to clinical examination there is a full range of movement in the ankle and foot. There is no prospect of arthritis setting in with respect to the fracture sustained." 14 Mr Bath described the plaintiff's fractures as being of moderate severity. Whilst it was a significant injury he regarded it as being a routine fracture. Having had routine treatment it was his expectation that she would not have any long term problems, all going well, and in his opinion "all had gone well".
The plaintiff's pleaded case 15 The plaintiff pleads in her amended statement of claim: "3. The restaurant incorporated a parking area and access and egress to the parking area and to the restaurant from the street was through a stairway connecting the two levels. The stairway contained four steps. 4. On 28 August 1997 at approximately 7.00 pm the Plaintiff, accompanied by her children, attended at the restaurant to purchase a take-away meal for the family. 5. At the time it was not raining but rain had fallen shortly prior to 7.00 pm and the grounds and paving outside the restaurant were wet. 6. After making her purchases the Plaintiff exited the restaurant building through the main entrance, carrying her purchases in a cardboard tray provided by the Defendant. She turned to her left and walked across to the stairs leading from the restaurant apron to the level below. 7. The area surrounding the stairs was in darkness as it was night time and there were no lights illuminating the area. 8. The plaintiff placed her left foot down onto the first stair when she slipped, felt her left ankle twist and fell down
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the remaining steps of the stairway, sustaining severe injuries ('the accident'). 9. The said stairway constituted a risk to passengers (sic. pedestrians) which was greater than the ordinary risks to be found in a public place and which the defendant was required to guard against." 16 The plaintiff alleges that the injuries were sustained as a result of the negligence and/or breach of the statutory duty of the defendant. The plaintiff pleads: "11. PARTICULARS OF NEGLIGENCE: (a) The Defendant failed to take any or any adequate precautions for the safety of the Plaintiff and other invitees. (b) The Defendant exposed the Plaintiff to a risk of injuries that could have been avoided by reasonable care and maintenance on its part. (c) The Defendant did not cause the area above and surrounding the stairway to be sufficiently illuminated or at all so as to permit the Plaintiff to see clearly the state and condition of the steps. (d) The Defendant did not cause the stairway itself to be illuminated so as to enable the Plaintiff to see each stair as she progressed down the stairway. (e) The Defendant did not provide handrails so as to enable the Plaintiff to steady herself as she descended to the stairway. (f) The construction of the Defendant's stairway was such as by its nature to cause a danger to the Plaintiff of which danger the Defendant was or should reasonably have been aware in that: i The stairway was constructed in a manner which breached Australian Standards in that the width of each step was less than that set by the relevant Australian Standard;
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ii each step was 'lipped' by the paving surface of the level above it thereby reducing the surface area upon which the Plaintiff could place her foot whilst descending; iii the gradient of the stairway was in breach of Australian Standards in that it exceeded the Standard; iv The Defendant did not ensure that the surface of each step was constructed of or had incorporated in it a non slip material so as to prevent the surface becoming slippery when wet. (g) The Defendant did not ensure that the stairway was kept in a dry and safe condition so as to prevent the Plaintiff from slipping thereon. 12. PARTICULARS OF BREACH OF STATUTORY DUTY: The Defendant being an occupier of premises pursuant to Section 2 of the Occupier's Liability Act 1985, it is alleged that the Defendant breached Sections 4 and 5 of the said Act in its dealings with the Plaintiff. The Plaintiff repeats the Particulars set out above and says that in that respect, knowing of the dangers to the Plaintiff presented by the said stairway, the Defendant nonetheless failed to take precautions against the said risk." 17 Paragraphs 11(f)(i) and (iii) were amended by their deletion on application made at the commencement of trial.
The defence 18 So far as is relevant the defendant pleads: "3. Save to say that the parking area was a part of the common area of the shopping complex of which the restaurant was a part and not part of the restaurant itself, the defendant admits par 3 of the Statement of Claim.
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4. The defendant does not admit pars 4 and 6 of the Statement of Claim. 5. The defendant denies the allegations in par 5 of the Statement of Claim. 6. Save to deny that there were no lights illuminating the area, the defendant does not admit par 7 of the Statement of Claim. 7. The defendant denies the allegations in par 8 of the Statement of Claim. The steps were illuminated by two floodlights in the car park, approximately 15 and 27 metres from the steps, a street light approximately 16 metres away and the restaurant lights which were approximately 15 metres away. 8. The defendant denies each and every allegation set out in pars 9, 10, 11 and 12 of the Statement of Claim as if the same were set out verbatim and traversed seriatim. 9. If the plaintiff sustained her accident as pleaded, which is not admitted, the defendant says that the accident was caused, alternatively contributed to, by her own negligence.
PARTICULARS
The plaintiff was negligent in that she: (a) failed to keep any or alternatively any proper lookout while descending the stairs; (b) failed to take any or any proper account of the wetness of the stairs, which is not admitted; (c) failed to take any or alternatively any proper account of the poor illumination, which is denied; (d) descended the stairs too rapidly when she was carrying food in both hands;
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(e) failed to adequately negotiate a set of stairs."
Was the defendant the "occupier of premises" where the plaintiff fell 19 A threshold question is whether or not the defendant was the "occupier of premises" pursuant to s 2 of the Occupiers' Liability Act 1985. The defendant denies that it was. The stairway where the plaintiff fell was not part of the footprint of the Restaurant itself. It was some distance from the entry to the Restaurant and beyond the sealed car-parking area adjacent to the Restaurant. 20 The defendant occupied the Restaurant premises pursuant to a lease (Exhibit 13). The lease was assigned to the defendant when it took over the business in 1993. (Exhibit 14(a), (b) and (c)). The leased premises are described in the second schedule as: "McDonalds Family Restaurant as coloured in for the purposes of identification on Plan A attached hereto and as more particularly shown coloured red on Plan B attached hereto." 21 Both plans so far as the Restaurant area is concerned indicate the leased premises as being the footprint occupied by the Restaurant. Plan B indicates that the nearest point of the Restaurant to the boundary of the shopping complex on Robinson Road is 14.07 metres. That may approximate the distance from the front door of the Restaurant to the stairway. 22 The stairway is within the boundary of the shopping complex and is a part of what is described as the common areas. Insofar as is relevant, the lease provides: 23 Clause 2.01 defines "common areas" to mean: "those parts of the complex not demised to any lessee but intended for use by the lessees of the complex and their respective customers, employees, invitees and licensees in common with each other and the lessor and including (but without limiting the generality of the foregoing) the common parking areas and all roads, walks, passageways and stairways in the complex." 24 The complex is delineated on the Plan A attached to the lease and comprises the whole of the site which incorporates the McDonalds Restaurant, a Red Rooster outlet, a TAB and the Leisure Inn and Motel.
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"Clause 10.01 – Common Areas: Clause 10.02 – Control of Common Areas The common areas shall at all times be subject to the control of the lessor who shall have the right from time to time to control and regulate the use thereof. Without limiting the generality of the foregoing the lessor may at any time and from time to time – (a) construct, maintain and operate lighting facilities within the common areas; (b) police the common areas and provide for: 25 The Third Schedule to the lease prescribes Rules made for "the safety, security, control, care and cleanliness of the complex …". 26 The Occupiers Liability Act 1985 ("the Act") defines "occupier of premises" to mean "the person occupying or having control of land or other premises;" "Premises" includes any fixed structure. "Occupy" is defined in the Shorter Oxford Dictionary as meaning "to have possession
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of" and in the Oxford Australian Reference Dictionary as "to be the tenant of". 27 Clearly the defendant is the occupier of the premises the subject of the lease, namely the footprint on which the Restaurant stands. However, in terms of the lease it did not have control of the common areas of the shopping complex. Nor did it occupy the common areas. That it was given the right (cl 10.01) along with other tenants and customers and visitors to use the common areas does not constitute the defendant as an occupier of those areas. Specifically, the lessor was the occupier of the stairway where the plaintiff suffered her fall and which was part of the common areas of the shopping complex. 28 Consequently, the provisions of the Act have no application as between the plaintiff and the defendant.
Common law negligence 29 In his learned article "Theory of Negligence Advanced in the High Court of Australia" (2004) 78 ALJ 595 the Hon Desmond Derrington opines: "The definition of the law of negligence is simple enough; and it has not seriously changed for a long time. There must have been conduct by one party causing harm to another. The harm must have been reasonably foreseeable. There must have been a duty of reasonable care, according to community standards, owed by one to the other not to cause such harm to that other. There must have been a breach of such duty in all the circumstances; and the harm must have been caused by such breach. This is the 'principle' to which advertence is frequently made in the High Court of Australia."
Did the defendant owe a duty at common law? 30 The plaintiff contends that as she was an invitee to the Restaurant, the defendant owed her a duty of care to ensure that her access to and egress from the Restaurant across the common areas to the public footpath at the lower level was safe for that purpose. It is contended that the defendant was in breach of that duty in that it exposed the plaintiff to a risk of injuries that could have been avoided by reasonable care and maintenance on its part. 31 The High Court, in its landmark decision in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 adopted the statement of
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Deane J in Hackshaw v Shaw (1984) 155 CLR 614 at 622 - 3. Consequently it held that in order to decide whether a duty was owed: "All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant's occupation of the premises and the manner of the plaintiff's entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. A pre-requisite of any such duty is that there be the necessary degree of proximity of relationship. The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of persons of which the visitor is a member. The measure of the discharge of the duty is what a reasonable man would, in the circumstances, do by way of response to the foreseeable risk." 32 The reference in that passage to proximity as a test for determining the existence of a duty of care has been overtaken by later authority. There has been a return to the words of Lord Atkin in Donoghue v Stevenson [1932] AC 562 as the "foundation or case for all modern considerations of the duty of care" (per Priestley JA in Avenhouse v Hornsby Shire Council (1998) 44 NSWLR 1 at 5). In particular, a duty is only owed to those: "…so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question." (Lord Atkin at 580). 33 There is majority High Court support for the position that reasonableness is the test for the imposition of a duty of care. As formulated by Kirby J in Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at [244] a duty of care will be imposed when it is reasonable in all the circumstances to do so. According to Gleeson CJ it is the reasonableness of a requirement that a person should have certain persons or interests in contemplation that determines the existence of a duty of care (Tame v State of New South Wales (2002) 211 CLR 317 at [9]. What is reasonable is to be judged in the light of current community trends and defies rigorous categorisation of its elements (per Gleeson CJ in Tame at [14] and [35]). Further, reasonable foreseeability is to be understood and applied with due regard to whether it is reasonable to require a person to have in contemplation the risk of injury that
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eventuated (per Gleeson CJ in Tame at [12]). The two issues can be closely related. 34 The duty owed is exclusively an incident to occupation. Responsibility is based on control, not ownership, as corollary of the power to admit and exclude. Hence, a visitor to premises would ordinarily look to the tenant, not the landlord. (See Lane v Cox [1897] 1 QB 415; Cavalier v Pope [1906] AC 428.) 35 Fleming: The Law of Torts (8th ed) at p 450 continues: "Not that possession need be exclusive. A licensee may qualify as well as a tenant, and so may the grantee of a mere right of way or anyone with a right to invite people over someone else's land. Building contractors may share occupation of the site with the owner. There may be shared occupation of a wharf managed by several ship owners, of a hall hired out for a dance, or part of the premises run by a concessionaire, or of an upstairs apartment occupied by a caretaker. One may even be responsible for safe access to one's premises over an area under someone else's control, like a footpath or forecourt fronting a shop." 36 In Snitzer v Becker Milk Co (1976) 75 DLR (3d) 649 the plaintiff walked from the parking lot of a shopping plaza across a side walk and into a milk store where he purchased a newspaper. When leaving the store he took one step down to the side walk from the threshold of Becker's door then one or two steps south on the sidewalk and tripped or stumbled over the difference in elevation where two slabs of sidewalk joined. The Ontario High Court of Justice held that the milk store did not have authority, the right of possession or control over the defective sidewalk. However, it did have the right to invite the plaintiff to use the portion of the sidewalk outside its premises for entrance and exit. Its corresponding duty to see that it was safe for the purposes of its customers could have been performed, in the circumstances by inspecting the sidewalk regularly, informing the owner of the condition of the sidewalk, and by placing a warning that would bring it to the attention of the milk store's customers. In doing none of these things the milk store failed in its duty to the plaintiff as its invitee and was liable to the plaintiff on that basis. 37 It is relevant to note that in that case the sidewalk was immediately adjacent to or contiguous with the premises occupied by the milk store.
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The point was made in that case and in other cases referred to in the judgment that the duty extended outside the premises but only to the extent of the immediate area providing the means of entrance and exit from the premises. It could also include, for example, a stairway in a common area being the only means of access to premises upstairs. On the other hand where there was a row of stores only the occupier of the store immediately outside of which a customer stumbled owed a duty but not the owners of the other stores. The latter owners owed no duty with respect to premises not under their ownership and control when they did not afford necessary access to their own premises. 38 Likewise that distinction is applicable to the present circumstances. The stairway where the plaintiff fell afforded access from the street level to the parking area of the shopping complex and vice versa. Whilst it afforded access to the shopping complex it did not "afford necessary access" to the McDonalds Restaurant, i.e. it did not provide the means of entrance and exit from the Restaurant. The stairway was not immediately adjacent to or contiguous with the Restaurant. The stairway was some 15 metres distant from the entrance to the Restaurant. The fact is that the stairway might equally have been used by pedestrians going to and coming from other commercial premises which were in the complex, eg Red Rooster. The stairway was not for the exclusive use of the defendant's customers. Simply because the stairway was nearest in proximity to the Restaurant does not give rise on that basis to a duty on the part of the defendant to ensure that the stairway is safe for all persons who may come onto the common areas to patronise any of the business in the shopping complex. Thus even if proximity were a consideration a duty in these circumstances could not be found upon it. 39 It is to the direct advantage of commercial establishments to keep their adjoining footpaths in a clean condition and good repair. 40 The only evidence called on behalf of the defendant was that of Norman Graham Sinclair whose company the defendant was the franchisee of the Restaurant. He operated the Restaurant from May 1993 to November 30 1998. It was his evidence that although the area immediately adjacent to the Restaurant was not part of the area leased, nevertheless his employees did undertake regular inspection by way of ensuring cleanliness of the area. His staff would pick up papers and any other rubbish from time to time during both day and night whilst the Restaurant was open. That is not however indicative of exercising a degree of control over the common areas but rather is simply ensuring the
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tidiness of the area. Again, no duty on the part of the defendant so far as the stairway is concerned could be found on this basis. 41 There was no evidence that the defendant had any part to play in respect to the stairway. For example, there was no evidence that the defendant caused the stairway to be located or constructed where it was, or that it maintained or cleaned the stairways or that the defendant invited the public to use the stairway to gain access to the Restaurant, eg by way of sandwich board or signpost on the verge indicating the presence of the stairway for prospective customers. Likewise there was no evidence that the defendant had anything to do with the yellow markings on the car parking area which indicated the pedestrian passageway to the stairway. 42 In the circumstances I am not satisfied, having regard to the statement of Deane J in Zaluzna (supra) that the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. 43 Despite arriving at that conclusion which defeats the plaintiff's claim I will, nevertheless, go on to consider whether the defendant would have been in breach of its duty had it owed one.
Was the defendant in breach of that duty? 44 Before a breach of duty can be made out, there must be evidence upon which I can find that: 1. the risk of injury to the plaintiff was reasonably foreseeable; 2. there was a reasonably practicable means of eliminating that risk; and 3. there was a causal connection between the defendant's failure to eliminate the risk of injury and the sustaining of the plaintiff's injury. (See Wyong Shire Council v Shirt (1980) 146 CLR 40 per Mason J at 47-48). 45 In Romeo v Conservation Commission of The Northern Territory (1998) 192 CLR 431 Hayne J at 488 stated: "The fact that an accident has happened and injury has been sustained will often be the most eloquent demonstration that the possibility of its occurrence was not far-fetched or fanciful. Indeed, often it will be difficult, if not impossible, to demonstrate the contrary to a tribunal of fact. That is why it is
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46 Kirby J in Romeo (supra) stated at 478: "The entrant is only entitled to expect the measure of care appropriate to the nature of the land or premises entered into and to the relationship which exists between the entrant and the occupier. The measure of care required will take into account the different ages, capacities, sobriety and advertence of the entrance." 47 In Jaenke v Hinton (1995) A Torts Reports 81-368 the Queensland Court of Appeal disallowed a claim by a milk vendor who tripped over a garden hose whilst delivering milk. Thomas J at 62,809 stated as follows: "In my view the finding of negligence in the present case was quite contrary to contemporary expectations and standards. If the law pretends to impose standards to which reasonable members of the community cannot relate, the law will fall into disrepute. In fact it is the standard of the reasonable person that courts attempt to uphold. The finding of negligence against the appellants in this case assumed an unreasonably high standard of care to protect other persons from danger, and an unrealistic level of foreseeability. The alleged danger was from a common garden hose, the presence of which presented too small a risk to create a duty to remove it." 48 It was the plaintiff's evidence that when she put her left foot down on the first step there was "something there" and that she "felt something not right", that there was "something wrong with the step there" and that "it felt different on paving". However, she does not allege and there was no evidence either that (1) there was anything unusual, eg foreign or loose matter on the step, or (2) the paving on the step was uneven, loose, broken or defective in any way, or (3) the design and construction of the stairway itself was inadequate, deficient or did not comply with any applicable Standards.
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49 There was no evidence of anyone having inspected the steps for anything which may have caused or contributed to the fall immediately after the accident. There was some evidence that the steps may have still been wet from earlier rain although this was contradicted by Brendan. There was no evidence that water on the steps would have made them slippery. There was no evidence that the paving bricks were not suitable to use as the surface of a stairway such as this and exposed to the elements.
50 The plaintiff's pleading (par 8) alleges that she slipped on the first stair. However, her evidence was that she did not know if she had slipped. There was no evidence whatsoever that the surface of the stair whether it be wet or dry was or might be slippery or that it presented as any sort of danger. No scientific evidence, for example testing to ascertain the coefficient of friction of the surface, was called at trial. 51 The plaintiff did say that she saw the step prior to putting her foot down but there was no evidence of having observed anything on the step. 52 I am left with no information as to why it was that the plaintiff says that there was "something there" or that there was "something wrong with the step there". No explanation was forthcoming. There is no evidence other than the plaintiff's bald statement of there having been something "there" or that there was "something wrong with the step". 53 The pleading (par 7) also alleges that the stairs were in darkness and that there were no lights illuminating the area. The plaintiff had been to the Restaurant a number of times, but not more than 10, before. There was no evidence that she had used this stairway before. Her description was that the area was "quite dark". On exiting the Restaurant she "saw the steps there" and proceeded across the car-parking area towards the stairway. She did not mention seeing the step up (estimated 8-10 centimetres) over the kerb from the car-park level to the top platform of the stairway or taking that step up. It can reasonably be assumed that she did both. She did see the step down before putting "her left foot on the second step". Thus, she was aware that the stairway was down and it was not a case of stepping into the darkness not knowing what was ahead of her. 54 Mr Sinclair identified the lighting in the area as comprising two floodlights in the car-park area – one at the front being 10 to 15 metres from the stairway and directly across the car park and another a little
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distance down the Robinson Road side more towards the back of the restaurant. (Exhibit 1A) 55 There was also light from the big 'M' McDonald's sign (Exhibit 1E) and a street light immediately over Robinson Road but opposite the stairway (both depicted in Exhibit 1E). There were also down-lights under the eaves of the restaurant, such lights being about three metres apart, as well as ambient light from within the restaurant shining outside. It was his evidence that the lighting of the stairway was adequate to enable a pedestrian to see where they were putting their feet on the stairway. 56 It was not the plaintiff's evidence that it was so dark that she could not see anything at all. Even accepting, as was the evidence of her two sons and husband, that the stairway was "dimly lit", I find that, as there was sufficient light to enable the plaintiff to see both the raised kerbing and the stairway down, the lighting was sufficient to permit the plaintiff to observe the state and condition of the steps as she progressed down the stairway. Even had there been better lighting in the immediate area of the stairway it does not follow that the plaintiff would have necessarily taken any more care than she did. 57 It is the duty of all persons to take reasonable care for their own safety. That is, each person is expected to act reasonably and take care for their own safety. Persons walking in the outdoors will be expected to exercise sufficient care by looking where they are going and avoiding obvious hazards. If an area is poorly illuminated and one goes there, then that requires greater care for one's own safety. Likewise if the ground surface is wet or if there is snow or ice. Whether or not there had been more light in the area does not, in my view, detract from the responsibility of the plaintiff in the circumstances with which she was confronted. The plaintiff should have exercised a degree of care proportionate to the circumstances which confronted her. 58 Nor was there any evidence to support the assertion (Particulars par 11(f)(ii)) that the slight overhang or "lipping" which it is contended reduced the surface area upon which the plaintiff could have placed her foot on the step down either was or could have been causative or contributed to her fall. 59 As to the allegation that the defendant did not provide handrails to the stairway (Particulars par 11(e), the same principles apply ie. that she should nevertheless have taken reasonable care for her own safety. The
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evidence was that in any event she had both hands full. In one hand, she was carrying a bag containing hamburgers and in the other hand, a cardboard tray holding drinks in containers. There was no evidence as to how she would have held these things at the same time as holding a handrail, had there been one. No doubt it would be possible, but in truth would the plaintiff have used a handrail? There was no evidence that she would have done so. 60 It was the evidence of Mr Sinclair that in his five and a half years as operator of the restaurant, this was the only accident on the stairway that he was aware of and that he had never received any complaints concerning the condition of the stairway. He was never given any cause for concern. Perhaps that says something about the adequacy of the stairway. 61 It has been said that judges should not abandon common sense in the evaluation of liability (see RT v McGuinness (2002) NSWCA 210 per Foster AJA). Regrettably, the plaintiff had a fall and suffered injuries. Accidents do happen. That is what happened here but that is not to say that the defendant can be blamed or is liable for it. It was not reasonably foreseeable that an adult person would suffer a fall as the plaintiff did for what was no real apparent reason. I conclude that the stairway was safe for a person taking reasonable or ordinary care for their own safety.
Conclusion 62 The onus is on the plaintiff to satisfy the Court on the balance of probabilities that the defendant was negligent or in breach of its statutory duties as alleged. In the circumstances and for the reasons expressed I am not persuaded to the requisite standard. In my opinion the defendant did not owe a duty of care to the plaintiff and even had I found to the contrary I am not of the opinion that the defendant breached any duty of care. 63 The action must accordingly be dismissed.
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