Reed (Trading as Findon Mitre 10) v Ventra No. Scgrg-99-432 Judgment No. S305

[1999] SASC 305

REED (TRADING AS FINDON MITRE 10) v VENTRA

[1999] SASC 305

Magistrates Court - Civil

1 WILLIAMS J.  This is an appeal by the defendants against a final judgment entered in favour of the plaintiff in the Magistrates Court in its civil jurisdiction on 30 March 1999.
2 The action arose out of an incident on 3 December 1995 when the plaintiff visited a retail hardware store operated by the defendants.  The plaintiff’s right foot tripped over a piece of wire mesh which was attached to a mobile display trolley on the verandah outside the store entrance.  The plaintiff fell to the ground on his left elbow.  He alleged that the incident was caused by the negligence of the defendants in creating a hazard and subsequently brought this action for personal injury, loss and damage.
3 The decision of the Magistrate, as recited in the defendant’s notice of appeal was:

1. "That the defendants had been guilty of negligence when on 3rd December 1995 they placed a trolley on a concrete apron outside the Mitre 10 store at Findon.

1. That the plaintiff’s damages be assessed as follows:-

2.1    Special damages $509.75
2.2    Non-economic loss
         (a)  Past  $ 5,000
         (b)  Future  $10,000
         (c)  Past economic loss              $     500
         (d)  Future economic loss                   $10,350
         (e)  Beck v Farrelly  $     200
         (f)  Future hospital expenses      $ 2,500
  Total  $29,059.75

1. That the plaintiff had been guilty of contributory negligence and liability for the accident be apportioned 80% against the defendants and 20% against the plaintiff.

1. That the defendants pay the plaintiff’s costs in accordance with Rule 53 of the Magistrates Court Rules less 20%."

4 The defendants now complain as to the finding of negligence.  They also claim that the assessment of damages was "manifestly excessive".
5 Upon the hearing of the appeal the defendants took issue with the Magistrate’s conclusion that the positioning of the display trolley, with the protruding mesh, in such a place as to create a restricted pathway, "caused a hazard which was inherently dangerous for customers who chose to travel along that pathway".  It was the contention of the defendants that the obstruction was "obvious" and it was incumbent upon the plaintiff in the circumstances to take another route, as he easily could have done, so as to avoid the restricted passage.
6 The case turns upon the application of the principles discussed in Australian Safeway Stores Proprietary Ltd v Zaluzna (1986) 162 CLR 479. The argument was directed, in particular, to the discussion in the following references:
Benton v Tea Tree Plaza Nominees Pty Ltd & Anor (1995) 64 SASR 494 at 496 and 511.
Phillis & Anor v Daly (1988) 15 NSWLR 65 at 69 et seq.
Dailly v Spot on Investments Pty Ltd (t/as Spot-on Photos) (1995) Aust Tort R 62705 at 62708.

7 It is my opinion that the hazard was obvious to anyone in the plaintiff’s position who happened to be looking at the ground as he or she approached the trolley.  However, a reasonable person in the position of the defendants ought to realise that a passer-by cannot necessarily be expected to be looking at the obstruction and making a risk analysis at every step.  Moreover, a reasonable person in the position of the defendants would anticipate that in the immediate vicinity of the particular obstruction one could expect that the attention of a passer-by would be drawn to other obstructions - for example, car bumper bars which effectively bounded the side of the narrow pathway.  There may also be a multitude of other matters, including pedestrian and motor traffic, which might be expected to attract the attention of the customer moving along the edge of the raised concrete apron, which formed the immediate boundary between the verandah display section of the business premises and its car park.
8 A useful starting point in identifying principle is the discussion by Lander J in Benton v Tea Tree Plaza Nominees (1994) 64 SASR 494 at 511:
"...It is argued by the respondents that a pedestrian could avoid injury by taking care for herself. That matter was discussed in Webb v South Australia (1982) 56 ALJR 912 at 913, and Mason, Brennan and Deanne JJ said:

"However, the reasonable man does not assume that others will always take due care; he must recognise that there will be occasions when others are distracted by emergency or some other cause from giving sufficient attention to their own safety."

In that case the High Court considered a claim for personal injuries where a man injured his foot when he jammed it in a gap between a permanent kerb and a temporary false kerb.  Their Honours said (at 912):
         "The question then is: What is the response which the reasonable man, foreseeing the risk, would make to it?  Is the risk so small that a reasonable man would think it right to neglect it?  In Wyong (at 285) Mason J said:

"The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have."

Here the risk of significant personal injury was obvious; the occurrence of such an injury was a distinct possibility.  To determine liability in the present case, one must postulate the reasonable man’s response to the risk of occurrence of personal injury arising from the construction and maintenance of the false kerb, a risk which might lead to injury in a variety of ways.  It is not necessary to postulate a response to the risk that personal injury would arise in the precise way in which the appellant actually sustained his injury - by jamming his foot in the intervening space."

9 In Phillis & Anor v Daly (1988) 15 NSW LR 65 the plaintiff decided to step over a log, painted white, which had been laid in the car park of a country hotel to mark the edge of the dirt parking area. It was in the vicinity of the front door to the hotel. The plaintiff caught her foot on a knot in the timber and fell over. The log was not smooth and there were various noticeable protuberances of varying sizes. The Court, by majority, held that there was no breach of duty. At 74-75 Mahoney JA said:
"The result of Australian Safeway is that "unusual" or "hidden" are no longer an answer to a plaintiff’s claim.  But the fact that a danger is not hidden or unusual but obvious remains of significance.  As Wyong Shire Council v Shirt establishes, the court must identify the risk and decide what the defendant should have done to avoid injury from it.  In deciding that, it is to take into account "the magnitude of the risk", "its degree of probability", and "other relevant factors".  Those factors include, inter alia, two things: that the risk is ordinary and that it is obvious.

There are dangers on any premises.  A room may have a desk or a table.  There is a danger that, if I fall, I will hit my head on it and my skull will be fractured.  If the desk or table were not there, I would suffer little or no harm.  And the danger is obvious: people do slip and fall.  And the injury may be serious.  But the obvious foreseeability of such an injury and its seriousness does not involve that, if a person falls and hits his head on a table, there must have been a breach of duty by the occupier of the room.  And this notwithstanding that people may live without tables and that tables may be easily removed.

Before Australian Safeway, it was necessary, even in the case of an invitee, that the danger be an "unusual danger": Indermaur v Dames (at 288); see Black v City of South Melbourne (1964) 38 ALJR 309 and Hampton Court Ltd v Crooks (1957) 97 CLR 367. This, it has been suggested, is because an occupier "may assume that ordinary reasonable people know and appreciate usual or common perils and need not therefore be warned or otherwise protected against them": Fleming The Law of Torts, 7th ed (1987) at 433. I do not think that it was the purpose of Australian Safeway to depart from that or to make an occupier liable for all "usual or common perils" incident to his premises. At the least, the fact that the instant danger is such is a relevant factor in assessing what the defendant should have done.

There is, in my opinion, a further matter to be taken into account.  A person coming upon another’s premises is expected to act reasonably.  And this is relevant in deciding what it was reasonable for the occupier to do.

In one of the classic passages in Indermaur v Dames, Willes J (at 288) said:

"And, with respect to such a visitor at least, we consider it settled law, that he, using reasonable care on his part for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger, which he knows or ought to know;...".

This passage, and the words "using reasonable care on his part for his own safety", have been the subject of frequent examination.  The words were used, I think, to indicate that the standard of the care expected of an occupier-and therefore what dangers he was expected to deal with-were affected by the law’s expectation that the plaintiff would take reasonable care for his own safety.  This, in my opinion, is still a matter for consideration.  In determining whether he must deal with a particular danger and what he must do, the occupier is still entitled to take into account that, with due allowance for human nature, a person he permits to be upon his premises will use reasonable care for his own safety.  To take an example used in argument, in deciding whether the risk was such that they had to spend money to remove the log and replace it with a fence, the defendants were entitled to expect that, with such allowances, persons coming upon their premises would pay heed to the obvious and act accordingly."

10 In Phillis & Anor v Daly McHugh JA in dissent at 76-77 said:
"Since Australian Safeway Stores Pty Ltd v Zaluzna it is no longer necessary to classify entrants on premises as invitees, licensees or trespassers.  A duty of care is owed to any person whose presence on the premises, either individually or as a member of a class is reasonably foreseeable.  The purpose of the plaintiff’s entry, however, is a relevant matter in determining the standard of care required of the defendant.

The standard of care is measured by what, if anything, a reasonable person would have done to avoid causing harm to the plaintiff.  Likelihood of harm is not the determinant of the standard of care.  Conduct which a reasonable person would foresee as giving rise to a real risk of injury to the plaintiff or to the class of which he or she was a member must be avoided or reduced to the extent that it is reasonable for the defendant to give up his or her freedom to take no action or to pursue a particular course of action.  While a risk which is far fetched or fanciful is not a real risk, a risk may be real even though it is unlikely to occur or is remote:".

And at 77:

"The defendants ought to have foreseen that visitors to the hotel would step on or over the logs.  Moreover, the state of the logs’ surface gave rise to the real possibility that persons, wearing a variety of footwear, might slip or stumble or otherwise lose their foothold.  The evidence indicated that others had fallen after stepping on the log although there was no evidence that the defendants were aware of these falls.  Moreover, the defendants cannot escape liability because they did not or could not foresee the precise manner in which the plaintiff lost her footing.  It is sufficient that they should have reasonably foreseen in a general way that she might injure herself by stepping onto the logs:".

11 In Dailly v Spot-On Investments Pty Ltd (t/as Spot-on Photos) (1995) Aust Torts Reports 62705 the New South Wales Court of Appeal was faced with the problem of reconciling with Webb’s case (1982) 56 ALJR 912, the approach taken by Mahoney JA in Phillis & Anor v Daly (supra). At 62709 Sheller JA said:
"In the present case relevant factors are that display stands are commonplace in shops, the display rack was obvious, the defendant could reasonably expect that people coming into the shop would proceed around the display rack so as to avoid it and the display rack was in such a position as would not appear to a reasonable person to create a situation of danger likely to cause serious injury to a visitor to the shop.  With this, one can contrast an unfilled space between a false kerb and the permanent kerb and unexpected steep cement stairs in a stairwell a small distance to the side of a cement path.  Like the example given by Mahoney JA in Phillis v Daly at Aust Torts Reports 68,474; NSWLR 74 a shopkeeper might place a chair at the counter for the convenience of persons like the plaintiff.  It is reasonably foreseeable that a customer, whose attention is distracted by looking to the shop assistant or at an article displayed on the shelves, may fall over the chair and suffer the sort of injuries that the plaintiff suffered.  It does not follow there must have been a breach of duty by the occupier of the shop notwithstanding that shopkeepers may trade in shops without chairs or display racks and these may be easily removed.

In my opinion the magnitude of the risk and the degree of probability when combined with the other relevant factors to which I have referred were not such as to lead to the conclusion that the defendant by placing and leaving the display rack where it did was in breach of a duty of care to the plaintiff."

12 It is against this background that I now turn to the detailed facts of the present case.
13 The plaintiff travelled to the defendants’ premises as a passenger in a motor car driven by his companion Filleti.  The vehicle was parked against, or overlapping the edge of the raised concrete verandah apron near the front door of the shop.  The plaintiff arrived at about the time when the premises opened for business.  When he entered the shop the outside display trolleys had not been wheeled into position for the day.  However, when the plaintiff was returning to the vehicle the line of display trolleys had been put into position near the outside edge of the verandah apron so as to leave only a narrow path at the edge of the verandah behind the line of display trolleys.
14 If the plaintiff had chosen to walk behind the abovementioned vehicle rather than pass ahead of it to reach the passenger’s seat, then he would have avoided the narrow path and the obstruction which caused him to fall.
15 The so-called pathway where the plaintiff tripped was "dynamic" in nature.  It was formed between (i) a row of mobile display trolleys which each day were moved out of the store into position from the edge of the concrete apron and (ii) the bumper bars of cars which from time to time were parked against the raised edge of the apron.  Therefore, at certain times the apron might be clear of display trolleys.  However, when the trolleys were in position, the manner in which the vehicles were parked and the number of such vehicles would determine, from time to time, the precise dimension of the pathway and the nature and extent of obstruction created by the parked vehicles at any one time.  It is in this sense that the pathway may be described as "dynamic".  There is no doubt as to the description of the pathway as it happened to be at the time of the accident, although there was no restricted pathway when the plaintiff first arrived at the premises.  The display trolleys had not at that time been wheeled into position for the day.
16 The display trolley in question comprises a mobile trolley with shelving suitable for the display of a stock of heavy items such as, in this instance, bags of potting soil.  The bags are stacked "probably five or six bags high" although it was possible to put in a second layer of bags by placing an additional upper timber shelf across the trolley frame.  The display trolley is one of a number of similar trolleys, which for reasons of security, are removed overnight and wheeled into position at the commencement of business each day.  The Magistrate described the trolley in his reasons.  However, counsel were agreed that I was in as good a position as the Magistrate to describe the trolley by reference to photographs and with some limited assistance from unchallenged evidence.  Accordingly, as the parties in the course of the appeal have spent some time in examining this crucial aspect of the case, I will note the matters to which my attention has been particularly drawn.
17 The particular wheeled trolley, as with some others, had attached to the "back" of it a piece of vertical permapine timber lattice work.  This trolley, referred to in evidence as the potting soil lattice stand, had two pieces of heavy gauge mesh pressed vertically between the lattice work and the trolley.  The lattice work was secured in position against the metal frame of the trolley by octopus straps (heavy duty elasticised fastenings).  This lashing was "about halfway up the trellis".  The two sheets of wire mesh had been inserted between the lattice and the trolley framework and held in position by the octopus strap lashing.  Both the lattice and the wire mesh formed part of the stock in trade of the business and all these items were displayed for sale, although the manner in which the display was set up made pilfering more difficult by preventing removal of the bags of potting soil direct from the display trolley into the car park.  When in position, as abovementioned, the vertical lattice work and the mesh formed a screen at the back of the mobile display.  Importantly for this case, the screen had clearance from the ground.
18 The wire mesh sheets had been cut from 3m x 2.4m sheets into strips measuring 1m x 2.4m for easier handling in the store.  The reinforcing mesh itself is 100mm square.  When cut into sections the cut edge on one side of each mesh sheet would be "raw" with 50mm rods extending beyond the closed square mesh by virtue of the process of cutting across a section of the mesh.
19 The bottom of the trellis and the two sheets of mesh extended below the bottom of the trolley so as to create an untidy corner protruding below the trolley frame but clearing the concrete floor by about 4cm.  The Magistrate found that:
"The width of the pathway between the back of the trolley and the centre of the front of Filleti’s car was only about 65 to 66cm.  This restricted pathway was created by the defendants’ employees when Filleti and Ventra were inside the Mitre 10 store.  It was reasonably foreseeable that such a pathway would be used by the defendants’ customers.  The corner of the steel mesh on the back of the trolley was about 4cm from the concrete floor on which the trolley was standing and the corner of the mesh was protruding about 6cm from the back of the trolley.  This positioning of the trolley with the protruding mesh and thereby the creation of the restricted pathway between the back of the trolley and the front of Filleti’s vehicle caused a hazard which was inherently dangerous for customers who chose to travel along that pathway.

Ventra’s shoulders are about 61cm in width.  In order to walk along the centre of the narrow part of the pathway without contacting the trellis or mesh on the back of the trolley he had at best a margin of only 2-2 1/2cm on his right side.  To pass safely along the pathway without contacting the car or trolley Ventra needed to keep a proper lookout and use caution.  In this case he failed to keep a proper lookout and use sufficient caution when he travelled along that pathway to reach the passenger side of Filleti’s vehicle.  Moreover, Ventra could have chosen the safer route along the driver’s side of the vehicle.  Nevertheless, it was the defendants, through their employees, who created an unsafe and hazardous passage along which they knew customers were likely to travel to or from the Mitre 10 store.  Further, having created the hazardous passage, the defendants failed to give warning of the danger to the customers who were likely to use the pathway...".

20 The corner of the mesh caught in the lacing area on the top of the shoe on the plaintiff’s right foot and ripped the sneaker.
21 In my opinion, the defendants could have easily avoided creating the hazard which arose from the way in which the trellis and the wire mesh were mounted against the trolley.  If the defendant had raised the mesh and perhaps the trellis a short distance before lashing them into position, the danger would cease to exist.  There was apparently some channels or grooves intended to be provided near the base of the trolley into which the attachments were supposed to seat.  For some reason this device (shown on a sketch plan) was not in use.  There is some suggestion that it was defective.  In any event the solution to the problem is plain.  In my view, the reasonable person in the position of the defendants would have recognised and foreseen the risk which was posed by the corner of the screen, whether it be timber or wire mesh or a combination of these items.  The difficulty and inconvenience of taking alleviating action was almost non-existent.  There were no countervailing considerations which would have required any conflicting responsibility to be brought to account.  The risk of significant personal injury was obvious.  Moreover, a reasonable person in the defendants’ position would recognise and foresee the risk that someone in the plaintiff’s position may overlook the obvious when that person’s attention was elsewhere.  In my opinion, when the defendants wheeled out the display trolley they should have immediately tidied it up by adjusting the lashings and screen so as to raise the attachments to the trolley out of the way.  This, of course, is only one of several ways of dealing with the problem.  The seating of the attachments in a retaining groove, if properly maintained, would have had the same effect.
22 This case is distinguishable from the example of the table or chair referred by Mahoney JA in Phillis & Anor v Daly (supra) and Sheller JA in Dailly v Spot-on Investments (supra).  It is not the mere presence of the trolley which created the damage.  It is the presence of the unnecessary protruding obstruction from the trolley at near floor level upon which the plaintiff relies as the basis of liability.
23 In my opinion, this case, upon its facts, is one where the store operator was properly found to be liable in negligence for an obvious hazard.
24 At the outset of the argument upon appeal I observed that, on its face, the assessment of damages for non-economic loss appeared to be moderate.  Very fairly, counsel for the defendant acknowledged his difficulty in pursuing that ground of appeal.  In my opinion, the Magistrate’s assessment of damages should not be disturbed.
25 I note that there was no challenge to the exercise of the Magistrate’s discretion in apportioning liability.
26 The appeal against liability and damages will be dismissed.