Snelgar v Westralia Airports Corporation Pty Ltd - [2003] WADC 151

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: SNELGAR -v- WESTRALIA AIRPORTS CORPORATION PTY LTD [2003] WADC 151

CORAM: FRENCH DCJ

HEARD: 18 FEBRUARY 2003

DELIVERED : 11 JULY 2003

FILE NO/S: CIV 2426 of 2001

BETWEEN: MARSHA HELEN SNELGAR
Plaintiff
AND
WESTRALIA AIRPORTS CORPORATION PTY LTD
Defendant
QANTAS AIRWAYS LTD
First Third Party
SMARTE CARTE AUSTRALIA PTY LTD
Second Third Party

Catchwords:

Negligence - Personal injuries - Occupier's liability - Duty of care not breached by failure to provide system of spider queues - Provisional assessment of damage - Third party claim for indemnity

Legislation:

Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act, s 7

Occupiers Liability Act 1985, s 5

Result:

Plaintiff's claim dismissed

Damages provisionally assessed in the sum of $258,500

Representation:

Counsel:

Plaintiff:     Mr A S Stavrianou
Defendant:     Mr A D Karstaedt
First Third Party           :     Mr G J Goerke
Second Third Party       :     Mr G R Hancy

Solicitors:

Plaintiff:     Ilberys
Defendant:     Corrs Chambers Westgarth
First Third Party           :     Jackson McDonald
Second Third Party       :     Blake Dawson Waldron

Case(s) referred to in judgment(s):

Allied Westralian Finance Limited Wenpac Pty Ltd & Ors, unreported; FCt SCt of WA; Library No 950597; 8 November 1995
Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500
The Council of the Shire of Wyong v Shirt & Ors (1980) 140 CLR 40

Case(s) also cited:

Australian Paper Plantations Pty Ltd v Venturoni [2000] VSCA 71
Canada Steamship Lines Ltd v R [1952] AC 192
Graham v Royal National Agricultural & Industrial Assoc of Qld [1989] 1 Qd R 624
Schenker & Co (Aust) Pty Ltd v Maplas Equipment [1990] VR 834
Smith v South Wales Switchgear Ltd [1978] 1 WLR 165
Valkonen v Jennings Construction Ltd, unreported; SCt of SA, BC9502316; 29 November 1995

FRENCH DCJ: On 23 December 1999 the plaintiff, Marsha Snelgar, an employee of the first third party Qantas Airways Ltd ("Qantas")was working at the check‑in counter at the Perth International Airport ("the Airport"). At approximately 1.15 pm the plaintiff left her counter (No 13 counter) to go to counter 1 to change an overhead sign. As she walked across the area in front of the check‑in counters she was struck from behind by a luggage trolley being pushed by a nine year old child. The trolley struck her in the right ankle and as a result of the collision she fell to the ground landing on her right hip and dislocating her right knee. She was attended immediately by a medical practitioner who happened to be in the vicinity and was later transferred to her general medical practitioner.
The plaintiff has sustained injuries as a consequence of her fall including soft tissue injuries to her right ankle and left knee and lumbar sacral spine and a severe dislocation injury to her right knee resulting in permanent disability to her left knee and lumbar sacral spine. She has suffered a loss of earning capacity as she has been unable to return fully to her pre‑accident employment.
Many years before the accident the plaintiff had a cartilage removed from her right knee and surgery to her left knee to remove a growth. She had no symptoms in her right knee up until the accident in 1999 although her left knee would "give away" for no apparent reason. She pursued an active life, working full‑time and enjoying a range of recreational pursuits including ballroom dancing.

The pleadings

The statement of claim states that the defendant, Westralian Airports Corporation Pty Ltd was the occupier of the premises pursuant to s 5 of the Occupiers Liability Act as it was responsible for the maintenance, safety and operation of the customer check‑in area.
It is claimed that the accident was caused by the negligence of the defendant in failing to provide safety barriers in the form of designated spider queues and failing to provide and maintain a system to supervise and control customers pushing heavily loaded luggage trolleys in the check‑in counter area and in particular in failing to control or permit a child to have control of such a trolley.
The defendant does not admit that it was an occupier of the check‑in counter area where the plaintiff was injured as that area was leased to Qantas, who had the exclusive occupation and control of that area and was the occupier for the purposes of the Occupiers Liability Act. In any event the defendant claims that if the plaintiff sustained any injury or disability that was caused by or contributed to by the plaintiff's own negligence in failing to keep a proper look‑out and by failing to be alert to passenger movement around her and not keeping a sufficient distance between her and the passengers. Alternatively the defendant claims that the plaintiff's injuries were caused by the negligence or breach of statutory duty of Qantas by failing to provide and maintain a safe work place and a system of work and specifically by failing to cause or recommend safety barriers in the form of designated spider queues and failing to take steps to prevent travellers and/or children pushing heavily laden baggage trolleys in and around the customer check‑in area without adequate supervision.
The defendant commenced third party proceedings against Qantas claiming to be indemnified against or alternatively entitled to a contribution pursuant to s 7 of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act on the grounds that Qantas was negligent in failing to provide and maintain a safe work place and a system of work for the plaintiff. The statement of claim in the third party proceedings provides particulars of negligence that include a failure to provide or recommend designated spider queues and failing to object to travellers and/or children pushing laden baggage trolleys in the customer check‑in area without supervision. In addition the defendant claims contractual indemnity against Qantas and Smarte Carte Australia Pty Ltd ("Smart Carte") the second third party.
During the course of the first day of the hearing the defendant advised that it had decided to discontinue proceedings against Qantas and the third party proceedings against the first third party were dismissed with no order as to costs and Mr Goerke withdrew.
In December 1999 Smarte Carte conducted the business of providing baggage trolleys at the Airport pursuant to the terms of a written licence and authority agreement. Under the terms of that agreement Smarte Carte agreed to indemnify the defendant against claims arising out of or in connection with an injury to any person caused by "an act, negligence, or default" of Smarte Carte or its customers.
In the defence to the third party proceedings Smarte Carte denies that the provisions of its agreement with Qantas requires it to indemnify the defendant against the plaintiff's claim and in particular denies that the pushing of a baggage trolley constituted any "danger created by" Smart Carte or its customers as the pushing of the trolley was a normal and intended operation of a trolley. It also denies that the use of a baggage trolley would constitute "operation of any equipment" contemplated by the provisions of the agreement. Smart Carte claims that the indemnity provisions of the agreement with the defendant specifically excludes any claim in connection with personal injury caused by the negligence or default of the defendant. It is alleged that the plaintiff's claim against the defendant falls into that category.

The accident

At the time of the accident the plaintiff, Marsha Snelgar had been employed full time with Qantas since 1986. She was initially employed by Qantas in 1969 but had left to have children and to undertake other employment. Since 1986 she had worked as a reservations clerk and was then transferred to her position as a check‑in officer at the Perth International Airport in 1989. On 23 December 1999 she started work at approximately 6.30 am and was stationed at counter 13 which was a check‑in counter for business or first class passengers. At the Perth International Airport passenger check‑in area the counters ran from No 1 to counter No 14 in a row running from east to west on the airport terminal plan (Exhibit 1). This meant that counter 1 was to the left of counter 13 if you were standing at that counter and facing out towards the passenger check‑in and assembly area. The sign above counter 1 indicating that it was open for economy passenger check‑in was not on so the plaintiff decided to turn the sign on herself after receiving no response from her call to the service desk. The only access to that counter was to walk in front of the check‑in counters traversing the area where the passengers assemble for check‑in. The plaintiff described this as the area that is coloured green on Exhibit 1 and marked curtilage area or what she described as the public area in front of the curtilage area. The plaintiff stated that when she started to walk across to counter 1 it was approximately 1.30 pm and the area was busy as passengers were starting to check in for departing flights. The plaintiff stated that in December 1999 the area immediately in front of the check‑in counters had rubber flooring up to a white line approximately one and a half to two metres from the check‑in counter. The purpose of the white line was to divide off assembling or queuing passengers from the passenger or passengers who were actually in the process of checking in at the counter. The plaintiff does not recall the path that she took to walk to counter 1 but stated that after she had turned the sign on and started to go back to counter 13 she saw that there were people lining up in front of counters 1‑4 and that those passengers and their baggage impeded her path so that she was unable to walk back to counter 13 by walking in a direct line parallel to the check‑in counters and between the white line and the counter. The position of the white line is depicted in a photograph of the area (Exhibit 9). The plaintiff described the path she took as a small semi circle walking behind the people who were still waiting in the line to check in. She stated that as she was walking along she felt a massive pain in the back of her right ankle. She described catapulting up into the air because her natural body weight tipped her over so that her left leg crashed into her right knee. She said that when she came down she landed on her right hip and her right knee and her right knee was dislocated. She stated that she did not see what hit her when she was struck but immediately afterwards she saw the trolley and realised that she had been hit by a trolley heavily laden with baggage. Fortunately, there was a doctor checking in for a flight at the time and he realigned her dislocated knee. A wheelchair was then brought and the plaintiff was taken to the first aid room. The plaintiff's husband subsequently collected her from the Airport and took her to her local doctor. The plaintiff was later advised by witnesses to the accident that the trolley was being pushed by a young child with his mother walking next to him.
The plaintiff stated that up to the time of the accident there was little supervision or control of the passengers in the assembly area queuing up to check in. She also stated that it was common to see young children using trolleys in the area and that she would generally describe their behaviour as "running rampant" by pushing the trolleys all over the place and around in circles. The plaintiff was shown photographs that depict passengers assembling in what are described as spider or snake queues so that their access to the area immediately in front of the check‑in counters is controlled by a system of metal stands and ropes that cordon the area off into paths directing the passengers to designated outlets in front of the check‑in counters. The plaintiff stated that she was aware that this system had been introduced in a period subsequent to her accident. She stated that she considered that her accident would not have occurred if the spider queue system had been in place at that time as it was in that area that she was struck by the trolley. Mr Richard Gates, who is the general manager of the Airport and an employee of the defendant, advised that the system of assembling passengers by means of spider queues was introduced on a trial basis on approximately January 2001. Mr Gates stated that at the time the spider queues were introduced safety was not a consideration but the purpose of the queues was to enhance passenger movement by ensuring a steady flow of passengers. The trial of the spider queues was successful so they have become a permanent fixture at the Airport. Although they were initially trialed by Qantas using equipment provided by Qantas the present system was installed at the defendant's expense. Mr Gates explained that the use of the spider queues results in more equitable access to the check‑in counters by passengers. When a passenger gets to the top of the queue formed by the spider queue barriers then they can then move their trolley to the left or right to the nearest available check‑in counter. Mr Gates confirmed that prior to the introduction of the spider queues there was no system or supervision in the way in which passengers would line up in queues in front of the check‑in counters. Mr Gates did not agree that the spider queues were introduced to make the system safer but to provide for a more orderly and equitable access to the check‑in counters. However, he did concede that the system of spider queues enables orderly control of passengers entering the terminal and helps control the use of trolleys in that area.
Mr Nikola Bebich was a customer service supervisor for Qantas in 1999. He has had relevant experience with spider queues at the Airport and has worked for Qantas for 24 years. He described the situation prior to the installation of the spider queues as one of chaos in terms of management of people. He explained that passengers would get frustrated at the lack of order and system in gaining access to check‑in counters. His evidence differed from that of Mr Gates in that he said the question of safety was a consideration when the spider queues were introduced. He explained that safety was a consideration in the sense that staff would often complain about having to fight their way through passengers to get access to other areas in the Airport. He described the introduction of the spider queues as a situation where they could solve two problems, that is, the safety aspect and the orderly organisation of passengers with the one solution.
It is clear from the evidence of a number of witnesses that there were frequent problems with children "running riot" with trolleys in the departure hall of the Airport. Mr Bebich stated that that situation has improved as Smarte Carte round up the trolleys more efficiently. A number of Qantas employees who work at the passenger check‑in area had frequently seen children "running riots" with trolleys in the departure hall and were of the opinion that the introduction of the spider queues had significantly reduced the problem. There was some difference of opinion as to the extent of that reduction. Mr David Hodby who has worked at the Airport for approximately eight years was of the opinion that the installation of the spider queues had reduced the problem of children and teenagers pushing trolleys at high speed by approximately 99 per cent. Ms Lina Papagno, who had experience working at the check‑in counters at the International and at the Domestic Airports stated that the problem of children misusing trolleys continued at both airports although she noticed a reduction in the problem after the introduction of the spider queues. However, she also stated that an increase in congestion because of the increased traffic in the area and the number of airlines handled also reduced the opportunity to misuse the trolleys. Ms Jeanette Ness stated that although she had never seen anyone injured by a child pushing a trolley she had had cause to remonstrate with children and their parents because she considered their use of the trolleys was dangerous on occasions. After the introduction of the snake queues she said that she had not had cause to complain or speak to any children misbehaving with trolleys as the spider queues prevent people from running around.
Ms Genevieve Chaplin was also of the opinion that the introduction of spider queues has reduced the problems caused by children misusing trolleys. She stated that before the introduction of the queues it was common to see children misusing the trolleys and knocking people, particularly on the back of the ankles, because it is hard to see over the front of the trolleys. She stated that after the introduction of the spider queues there was a space between the actual front of the check‑in counters and where the passengers queue up and that space is generally clear. She stated that you could then walk straight across in front of the counters and between the counters and the beginning of the snake queue. However, Ms Chaplin also stated that trolleys are used throughout all areas on the ground floor and check‑in area as well as other areas of the Airport. She also confirmed that trolleys are present in the area immediately in front of the check‑out counters and the end of the spider queues. She explained that she has been hit by a trolley on occasions and in fact was hit by a child in charge of a trolley in a queue in Customs on the morning she came to court to give evidence. She stated that in her experience the injuries sustained are usually either bruises or skin being scraped at the back of the ankle. She stated that in her ten years at Qantas she had never been aware of a more serious injury resulting from the use of a trolley.
Despite the fact that there were a number of people in the general area and customer service agents at the check‑in counters there were few witnesses who were able to give evidence in relation to the circumstances of the accident apart from the plaintiff herself. Although everyone's attention was drawn to the plaintiff's screams of pain and saw her lying on the carpeted area estimated to be between three and seven metres from the check‑in counters only one witness gave evidence that he actually saw the collision.
Mr Brett Finucane was working at counter 5 or 6, that is, roughly in the middle of the check‑in counter area at approximately 1.00 pm on 23 December. He said that he saw the plaintiff walking towards counters 12 or 13 and he saw a little Asian boy with a trolley hit her from behind. He described the little boy as running across the check‑in area and hitting the plaintiff in the back of her legs near the calf area. He described her falling towards the side and said that she did not fly into the air but "just sort of went down". Mr Finucane stated that the first time he had been asked to recall the circumstances of the accident or to commit it to writing was in February 2003. He denied that he was aware that there was an investigation into the incident or that he was told about it by other witnesses.
Two other customer service agents who were working at the check‑in counters at the time of the accident gave evidence that was inconsistent with the evidence of the plaintiff and with Mr Finucane. Mr Ronald Szudlarski was a customer service agent for Qantas and was working at counter No 6 or 7. He stated that at approximately 1.00 pm just prior to the accident it was very quiet in the departure hall. He said that in addition to the customer service agents at the check‑in counters there were only about five or six people in the whole departure area. He described seeing a young boy pushing a trolley with two bags on it coming from his left and pushing the trolley parallel to the line of check‑in counters. Although he did not see the collision when he heard the plaintiff scream he looked up and saw her on the ground in a position where it appeared she was trapped under the trolley.

Ms Tracey Spanbroek is a Qantas customer service agent who was working at counter No 7 or 8 on the day of the accident. She confirmed Mr Szudlarski's evidence that at the time of the accident it was very quiet in the departure hall and there were very few people there. She described the plaintiff standing in the area almost directly in front of her counter but approximately four to six metres away. She said that she recalled that she was walking from the right to the left but had stopped almost directly in front of her and was speaking to somebody. Ms Spanbroek in fact recalled saying hello to the plaintiff when she was facing directly towards her. She then described the plaintiff as appearing to turn away to the right. Just before this she had seen a young boy pushing a trolley approaching the check‑in counters from the left. She said the child appeared to be walking towards her and just prior to the incident did not appear to be on a collision course with the plaintiff. She said that she then bent down to check something on her counter and the next thing she knew she heard the plaintiff scream. Although she said she had her eyes off the plaintiff for a minute or so she said that when she looked up and saw her lying on the ground she was lying on the floor in the same area that she had been standing.
I am satisfied on the basis of the evidence of Mr Szudlarski and Ms Spanbroek that at the time of the accident the departure hall was not crowded and there were very few people assembling in the passenger check‑in area. Mr Szudlarski was able to recall the time of the accident as being at approximately 1.00 pm as that was normally a very quiet period of time when the customer service agents were setting up their check‑in counters waiting for the passengers to arrive at the departure hall. Mr Szudlarski was quite clear about this aspect of his evidence and when questioned in detail about it he was also able to say that the area between the white line and the check‑in counters was clear and he did not recall any people being there as it was actually prior to the main check‑in time. This is consistent with Ms Spanbroek's evidence that the customer service agents were just setting up their check‑in counters at the time. Although Mr Szudlarski did not prepare a written statement nor was he requested to do so immediately after the accident he was noted as a witness to the incident in the medical incident report form (Exhibit 16). Ms Spanbroek was equally firm in her evidence that there were few people in the area at that time and advised that she had been required to make a written statement straight after the incident. Mr Finucane was not directly questioned as to the number of persons who were in the general vicinity at the time. However, he intimated in the course of his evidence that there were a number of people when he commented about looking up from his counter to check the number of people who were gathering in the queues. He stated that when the accident occurred he had one or two customers directly in front of him and they were in the process of getting out their documents for his perusal.
I am also not satisfied that the evidence establishes that the trolley was being pushed by the young child in anything other than a normal and orderly manner. Although Mr Szudlarski and Ms Spanbroek were not directly asked questions in relation to that issue the whole of their evidence is consistent with that finding. Although it was not uncommon for children and young people to misuse the trolleys there is no evidence that this occurred in this case apart from the evidence of Mr Finucane. I do not accept the evidence of Mr Finucane in relation to this issue nor do I accept that the accident occurred in the manner described by Mr Finucane or by the plaintiff. Mr Finucane described the boy as "running across the check‑in area and hitting the plaintiff in the back of her legs". In cross‑examination he appeared to have resiled from that although his responses were ambiguous. His evidence is inconsistent with the inferences to be drawn from the evidence of Mr Szudlarski and Ms Spanbroek namely that the trolley was being pushed in a normal manner. I prefer the evidence of Mr Szudlarski and Ms Spanbroek to that of Mr Finucane as he did not appear to have a good recall of any details other than seeing the child run with the trolley and seeing it collide with the back of the plaintiff's legs. Given that he was not required to recall the incident until over three years later and was not even aware that there was an investigation I find that his recall is not reliable and is likely to have been influenced by an attempt to reconstruct the events in the knowledge of the nature of these proceedings.
I am not satisfied that the accident occurred in the manner described by the plaintiff. Her evidence that she had to skirt around gathering passengers in a semi circle in order to return to her check‑in counter is inconsistent with the evidence that there were not many people in the departure hall at that time. Her description of being thrown into the air and knocking one knee with the other and then landing on her right side seems unusual particularly when the collision was not forceful. I am satisfied that the collision was not a forceful one in the sense that the trolley was not pushed into the plaintiff at any speed or with any more force than simply pushing it in a normal manner. The force was limited to the impact caused by the plaintiff coming into contact with the trolley as she turned into its path. The plaintiff's description of her fall is not consistent with the evidence of Mr Finucane, when he said she "just went down" and Mr Szudlarski who described her as winding up almost underneath the trolley. The account the plaintiff gave to Dr Goonatillake which was referred to in his report dated 16 May 2000 when he describes the accident having occurred "when the plaintiff was hit from behind by a trolley then causing her left knee to collapse" makes no mention of being thrown into the air.
The plaintiff's account of being hit from behind when she was in the process of walking back to her counter is also inconsistent with the evidence of Ms Spanbroek. It is significant that in cross‑examination the plaintiff conceded that she may have stopped to talk to someone just before she was hit. Taking all of the evidence into account I consider that the most likely course of events was that the plaintiff returned to her check‑in counter by walking through the passenger hall rather than taking a direct route directly in front of and parallel to the check‑in counter but stopped and faced towards the counters. Why she did this is uncertain but it may be that her attention was drawn by speaking to someone in that vicinity. There were few people in front of the check‑in counters and there would have been no difficulty in walking almost directly back to counter 13. I find that it is most likely that she then turned to return to the check‑in counter and in doing so collided with a trolley being pushed by a young child coming from the left and heading in an orderly and usual direction towards the check‑in counters. This finding is consistent with the plaintiff's statement at T44 that she reached out with her hand to prevent hitting the trolley with her right arm. That position is more logically the result of turning into the trolley rather than being struck from behind and being thrown into the air. When struck by the trolley her left knee collapsed due to a pre‑existing weakness and she fell to the ground hitting her right knee and dislocating it and landing on her right hip. I accept the plaintiff's evidence was on the whole given in a frank and forthright However, I consider that it is likely that the trauma and shock of the pain from her dislocated knee may have rendered her recollection of the incidents just prior to the incident unreliable. It may well be that the fact that this was a quiet period with few passengers assembling contributed to the plaintiff's failure to keep a proper lookout and to turn into the path of the trolley. The plaintiff was well aware that there could be trolleys being pushed in that area.
The plaintiff contends that irrespective of a finding that the accident occurred when the plaintiff turned straight into the path of the oncoming trolley that was being pushed in a usual and orderly manner the accident still constitutes a breach of the duty of care that the defendant owed to the plaintiff as occupier of the premises. It is submitted that if the spider queues had been in place at the time of the accident the plaintiff would not have been able to walk in that area and the trolley would have to have been pushed through the designated rows formed by the spider queues. It is also submitted that an orderly arrangement of passengers in the spider queues would have cleared the access immediately in front of the check‑in counters so that the plaintiff would not have been obliged to skirt around assembled passengers that blocked the more direct route.
The accident occurred in an area in the departure hall in the Airport that is under the control of the defendant. Pursuant to the provisions of the Occupiers Liability Act 1985 the defendant owed a duty to the plaintiff to take reasonable care to see that she would not suffer injury due to the state of the premises or to anything done or omitted to be done on the premises.
The plaintiff claims that her injury was caused by a breach of that duty. Although the particulars of breach set out in par 6 of the statement of claim list eight particulars the plaintiff's claim is essentially that the defendant has breached its duty to the plaintiff and was negligent because it failed to provide adequate safety barriers in the form of designated spider queues and/or alternatively permitted customers and specifically children to push heavily loaded baggage trolleys in and around the customer check‑in area without adequate supervision and control of this activity. It is claimed that as a result of this failure the accident occurred and the plaintiff sustained injury.
It is clear that at the time of the accident in December 1999 there were no barriers in the form of designated spider queues operating at the Airport. It is also clear that customers whether they had paid for the trolley or not and including children as young as nine were permitted to push trolleys with luggage throughout most areas of the Airport, including the customer check‑in area. The issues to be decided are therefore whether the failure to provide spider queues and/or supervise the use of luggage trolleys constituted a breach of the defendant's duty of care and whether such a breach was causative of the plaintiff's injury. The plaintiff's case was based on an allegation that she was struck from behind by a "heavily loaded baggage trolley" being pushed by a nine year old child. Although there is no specific mention in the amended statement of claim the plaintiff's case suggests that an inference can be drawn that the trolley was being pushed too fast or was in some other way being misused. A number of the witnesses called by the plaintiff gave evidence that they had on numerous occasions seen children "running riot with trolleys". However, in closing address counsel for the plaintiff submitted that the defendant was negligent in failing to provide spider queues or otherwise supervise the use of the trolleys even if the trolley was not being pushed too fast or otherwise misused and even if the plaintiff had in fact stopped during the course of her progress through the check‑in area and then turned around into the path of the trolley. It was submitted that the fact that she was struck by the trolley amounts to a failure by the defendant to take reasonable care to prevent such an accident.
The defendant submitted that the duty of care owed by the defendant is restricted to injuries that the defendant ought reasonably to foresee and also to conduct that may cause loss or damage to a class of persons to which the plaintiff belongs. It is argued that it was not reasonably foreseeable that anyone would be seriously injured by a trolley at the Airport. It was also submitted that as the plaintiff was an employee of Qantas working in the check‑in counters it was not reasonably foreseeable that the plaintiff would have to move through the open area of the departure lounge as part of her duties as a customer service agent for Qantas. I do not accept the defendant's submissions in relation to this issue. Although there was evidence that there were no injuries other than bruising and scraped ankles that had occurred at the Airport as a result of the use of trolleys I consider that it is reasonably foreseeable that injury could be caused. The fact that many of the witnesses did not perceive the risk to be a great one does not of course preclude a finding that the risk was foreseeable. A risk which is not far fetched or fanciful is real and therefore foreseeable. (The Council of the Shire of Wyong v Shirt & Ors (1980) 140 CLR 40). The gravity and likelihood of foreseeable injury must of course be taken into account in considering the standard and scope of the duty of care.
The evidence establishes that there have been numerous incidents of children or young persons misusing trolleys at the Airport. However it is also apparent from the evidence that that often occurs when abandoned trolleys are used for skylarking rather than the normal purpose of using them to transport luggage in and around and out of the Airport terminal. It is likely that the misuse of trolleys in these circumstances would constitute a danger of significant personal injury or damage to property. As a matter of common experience the orderly use of trolleys, especially when heavily laden with luggage, will be likely to result in minor collisions especially when used in congested areas where large numbers of persons are jockeying for position or crisscrossing open areas. However it seems unlikely that these kinds of collisions would cause significant personal injury. The use of trolleys in a variety of retail and transport facilities is widespread and has been for some years. As Ms Chaplin described in her evidence the usual injuries are bruising or a skinned ankle. When a trolley is being used in the normal manner although it is a substantial object if heavily laden it is also a heavy and slow one. It is not surprising then that the question of trolley safety has not been regarded as a significant issue. Although some of the witnesses have had cause to remonstrate with customers and/or children over the trolley use it appears to have been more of a nuisance factor rather than being seen as posing any significant risk either to passengers or employees working at the Airport. The fact that the plaintiff dislocated her knee, because her weak left knee gave way causing her to fall, constitutes an unusual sequelae of a relatively minor collision with the trolley. I accept the defendant's submission that it may fairly be regarded as a "freak" accident.
I am satisfied that the spider queue assembly system now in use in the departure hall was not introduced in order to avoid the kind of accident that occurred to the plaintiff. I am satisfied it was introduced as a result of problems associated with increased numbers of persons assembling in the departure hall and the difficulties in trying to channel waiting passengers to the appropriate check‑in counters and to ensure that there was an even spread allocated to the various counters. As in the similar use of such queues in banks and public facilities it ensures that the customer next in line has first priority to the next available counter. It is undoubtedly the case that it also has the advantage of reducing minor collisions that may occur with the use of trolleys and it would also prevent any skylarking or misuse of trolleys within the area designated by the spider queue barriers. It is also the case that if the spider queue barrier system had been operating in December 1999 the plaintiff would not have been able to walk through the area as it is clear from the maps that the accident occurred in the vicinity now covered by the spider queue barriers. She would have had to walk either directly in front of the barriers parallel with the check‑in counters, or alternatively to have skirted the spider queue barrier system itself and walked right around it in order to access her check‑in counter. In doing so she would have exposed herself to an area in which trolleys are pushed in all directions. Apart from the fact that the presence of the spider queues would have prevented the accident taking place in the precise location that it did occur the installation of spider queues would not otherwise have prevented the accident in this case. In addition, on the basis of my finding that at the time the accident occurred the area was not congested but was in fact relatively quiet with only a few people present assembling to check in the plaintiff could have walked directly in front of the check‑in counters. It was the fact that for whatever reason she walked further away from the check‑in counters and stopped and spoke to someone in the direction of the check‑out counter and then turned into the path of the trolley that caused the collision.
I am not satisfied that the absence of spider queues constituted a breach of the defendant's duty of care towards the plaintiff in the circumstances of this case nor am I satisfied that the failure to provide spider queues was causative of the accident. In the circumstances of this case I do not consider that any inference can be drawn that the absence of the spider queues constituted a breach of duty on the part of the defendant by the fact that the spider queues were introduced after the accident in late 2000 or 2001. As referred to above the purpose of introducing the spider queues was to promote orderly and efficient access to the check‑in counters rather than to prevent a collision with a baggage trolley. The fact that the presence of spider queues would also reduce the risk of a collision in the geographical area covered by the queues does not mean that the failure to provide a spider queue constitutes a failure to take reasonable care in the circumstances of this case. The use of trolleys to convey baggage to and from the Airport by passengers continues across a wide area of Airport premises and in this case by departing passengers accessing the spider queues at the entry to the Airport departure hall and in criss‑crossing the area immediately in front of the check‑in counters once they have reached the end of the spider queue system. Although the presence of the spider queue would prevent or reduce the opportunity for a customer or child to misuse a trolley by pushing it fast or by misusing it in that area I have found that that did not occur in this case. I am also not satisfied that the failure to supervise or control the use of the trolleys including controlling or preventing their use by children constitutes a breach of the defendant's duty of care or was causative of the accident in this case. The evidence does not establish that the trolley was being misused in any way. Supervision or control of any misuse would therefore not have prevented the accident.
The plaintiff's claim against the defendant is dismissed.

Provisional assessment of damage

The plaintiff claims that she has suffered significant and permanent disabilities as a result of the accident and has been unable to return fully to her pre‑accident employment as a customer service agent with Qantas. She claims to be restricted to work of a light nature and to be unable to pursue a number of recreational and social activities.
The plaintiff attended her local practitioner Dr Saint after the accident where her right knee was bandaged and she was prescribed anti‑inflammatories. She experienced pain in her right ankle and calf muscle and had difficulty walking. Her left knee was sore. She had pain from her right hip. She was off work for a couple of weeks but returned early in January 2000. Upon her return to work she did not work as a customer service agent in the check‑in counters but was engaged in lighter work and started off on a part‑time basis. During this period she had received physiotherapy including hydrotherapy. A report dated 7 January 2000 from a massage therapist confirms that the plaintiff was complaining of pain and tenderness in the lower lumbar region.

In May 2000 the plaintiff was referred to Dr Hari Goonatillake as her knee pain had not resolved. Following radiography investigations she had an operation on her right knee on 29 May 2000. This was described in Dr Goonatillake's report as a "right patello‑femoral reconstruction procedure involving a tendon release". After the operation her knee was in a splint for four weeks and following that she undertook specialised exercises and hydrotherapy. The reports of Dr Goonatillake indicate that the operation was successful and the plaintiff's symptoms were reduced considerably. In a report dated 11 May 2001 Dr Goonatillake noted that symptoms of pain in her right knee had improved and she had a good range of movement. He was of the opinion that the plaintiff's prognosis should be good although it is likely that she would have some ongoing residual problems with respect to her right knee with squatting and heavy lifting causing knee discomfort. This level of permanent disability and loss of function was quantified at 10 per cent permanent disability of her right lower limb at or above the level of the knee and this was said to equate to seven per cent loss of use of the body as a whole.
This opinion was confirmed by Dr Philip Finch in a report dated 10 July 2002 when he described the plaintiff experiencing mild restrictions to the right knee and mild discomfort on occasion. The plaintiff confirmed that the symptoms in her right knee have resolved since the operation apart from the minor residual disabilities referred to above. She also described her right knee as giving way on occasion but although that happens frequently (once or twice a week) she usually has a warning of that and it has not caused her to fall. However, she stated that she still has pain from her left knee particularly after walking.
The plaintiff's major difficulty is pain that radiates from her lower back or buttock down into her right leg. Although she had reported lower back pain when seen by a physiotherapist soon after the accident in January 2000 it was not until early 2001 that she was referred to Dr Goonatillake at the request of her GP because of lower back and bilateral buttock pain particularly affecting her right side. Dr Goonatillake referred her to Dr Roger Goucke for investigation of her lower back problems. The plaintiff stated that she first started to experience the buttock pain when she was doing hydrotherapy after the braces were removed following her leg operation in May 2000. She said that on her return to part‑time work at Qantas she was doing data entry work and sitting for long periods of time. The pain in her buttock radiating down to her right leg made it difficult to sit for long periods of time. The plaintiff explained that she continues to have difficulties with lower back and right buttock pain. Although the pain is exacerbated by long periods of sitting or walking or standing she also has difficulty sleeping as a result of the pain. In addition to restricting her to light duties in terms of employment it prevents her from undertaking some domestic activities such as vacuuming and gardening and recreational activities such as ballroom dancing, tennis and swimming.
Treatment for the plaintiff's lower back problems has ranged from physiotherapy including hydrotherapy, medication, facet joint injection and the use of a brace. Although some treatment has provided temporary relief she continues to suffer from chronic low grade pain exacerbated by the various activities described above. Although the plaintiff is convinced that her lower back symptoms are a result of the accident the evidence indicates that precise aetiology of her symptoms is not clear.
In May 2001 Dr Goonatillake said that any questions regarding aetiology and causation of her hip, buttock and back symptoms would have to be referred to Dr Roger Goucke who had the management of that aspect of the plaintiff's condition. In a report dated 5 April 2001 Dr Goucke notes that the plaintiff advised him that at the time of her accident the major identifiable problem was the injury to her right knee although subsequently she has had more trouble with her low back and buttock pain. He noted that on examination she had a reasonably good range of movement in the lumbar sacral spine but an MRI showed degenerative changes at the L5/S1 disc. He commented that the plaintiff at that stage appeared to be doing well and he reassured her that she had no major pathology in her back and that exercise and simple analgesic medication would relieve her symptoms. He also suggested that facet joint injection could be contemplated. In a subsequent report dated 21 February 2002 Dr Goucke commented that the plaintiff had degenerative changes in her lumbar spine but he considered that with care she would be able to remain in the work force although there could be flare‑ups of low back pain from time to time. He anticipated that the degree of permanent disability in her lumbar spine would be less than 10 per cent.
The plaintiff was subsequently referred for a report and assessment to Dr Philip Finch a specialist in pain control. He advised that the plaintiff had told him that she was injured by being "struck from behind by an errant trolley" and was thrown into the air coming down awkwardly and dislocating her right knee injuring her right ankle and landing heavily onto the right hip. He stated that the plaintiff advised that she had not previously had low back or buttock pain. Like Dr Goucke his examination confirmed that the plaintiff had good movement in her lumbar sacral spine with minimal tenderness in her lower back. Following a further MRI Dr Finch commented that it demonstrated changes in the lumbar sacral disc with a mid line annular fissure. He said it is unknown whether the changes in the L5/S1 disc are relevant to her pain state. He stated that although discogenic pain can present as buttock pain he considered that as the plaintiff responded well to sacroiliac joint injections this might suggest that this was the joint that was the source of her symptoms rather than the L5/S1 disc. However, Dr Finch was of the opinion that in either case the plaintiff suffers from chronic mechanical low back pain radiating into her right buttock as a result of the accident at Perth Airport. He considered that the low back pain was of a permanent nature because it had been ongoing for three years and quantified it as a 20 per cent loss of the full efficient use of the lumbar spine.
In cross‑examination Dr Finch conceded that he based his opinion as to the causation of the plaintiff's lower back pain on her evidence that she had not had pain prior to the accident. He also stated that the fact that the buttock pain was not noticed until after her knee operation in May 2000 did not displace his conclusion as it was not uncommon for symptoms to arise some time after an accident. He conceded that the lumbar scoliosis that had been noted some years before could cause symptoms of low back and buttock pain. He also conceded that degenerative changes together with a lumbar scoliosis could produce chronic mechanical low back pain but it would take some years to develop whereas the plaintiff had complained of a sudden onset of buttock pain after a trauma.
Dr Daelyn Cullen is a general practitioner although practises as a specialist in sports medicine with four years post graduate qualification in muscoskeletal medicine. Dr Cullen has been the treating doctor for the plaintiff's low back pain since August 2001. In Dr Cullen's opinion the plaintiff's low back pain has been caused by the dislocation to her right knee and injuries to her left knee. She explained that following the accident and her injury to her knees she kept favouring her hip and back to make up for the fact that she had a sore leg and progressively she developed a low back pain problem radiating to the buttock and right leg. She stated that in her opinion the plaintiff's low back pain started after her knee injury. Dr Cullen agreed that the MRI of the plaintiff's spine demonstrated degeneration but she did not consider that it was more than one would expect at her age and may never have become symptomatic.
Although it is possible that the plaintiff's residual symptoms in her lower back with pain radiating down to her right buttock are not related to the accident I am satisfied on the balance of probabilities that her symptoms are related to the injury suffered in her right knee and to a lesser extent to symptoms in her left knee as described by Dr Cullen. I found Dr Cullen to be an impressive witness who was able to present her opinion with a degree of confidence as she had conducted a considerable amount of investigation into the plaintiff's symptoms. Although the plaintiff was not referred to Dr Goecke for investigation of her lower back until early 2001 I am satisfied that symptoms were appearing when she was undergoing hydrotherapy in mid 2000 following surgery to her right knee. Although these symptoms may not be connected to the pain she complained of in her lower back immediately after the accident I am satisfied that they have flowed from the physical adjustment she had to make following the injury to her right knee both after the accident and following the surgery.
The consensus of medical opinion is that the plaintiff has made a very good recovery from her injuries and although she retains residual disabilities in her right knee and lower back these are generally of a mild nature and have improved considerably in the last 18 months. Significantly, her symptoms do not prevent her from continuing to work although she may have difficulty in sitting for long periods of time and should avoid heavy lifting and squatting. None of the medical witnesses were of the opinion that the plaintiff's symptoms are likely to have any significant impact on her work capacity. Clearly the plaintiff was incapacitated for work on a full time basis and in her pre‑accident occupation for some time following the accident and the surgery in 2000. Generally any loss of income in that period was made up by workers' compensation payments. However in October 2002 the plaintiff retired from Qantas and has not been employed since then. Although I was advised in opening that in retiring she was acting on medical advice the consensus of medical opinion is that she is now able to work on a full time basis with the caveat that she may suffer from low backache from time to time and would be wise to avoid heavy lifting.
In her evidence the plaintiff stated that when she returned to work she was unable to work as a customer service agent at the check‑in counters because of an inability to lift the luggage. Consequently, she was placed on lighter duties and was working part‑time 22 hours a week in the baggage department. She was unable to stay there as there was not a job available and in 2002 she was advised by Qantas that she had three months to find another job within Qantas. As she was only able to obtain part‑time work she decided to take her superannuation payout from Qantas and retire. She gave evidence that there were no suitable jobs available for a full time position. Although the plaintiff described doing 22 hours a week on doctor's advice it was unclear at what stage that advice was given. However I am satisfied on the basis of all of the medical evidence that as at the time of trial the plaintiff was in a position to resume full time employment with the exception of activities that involved heavy lifting or squatting such as is required as a customer service agent.
Ms Lisa Sgubin is the Human Resources Manager for Qantas. She confirmed that on the medical reports that Qantas received they considered that the plaintiff was unable to return full time or part time to her pre‑accident employment as a customer service agent at the check‑in counters at Perth Airport. Although she gave evidence that in her opinion the plaintiff was not that interested in pursuing alternative employment with Qantas she also commented that she did not consider that there was a suitable position available at Perth Airport and she was unclear as to whether there were alternative administrative positions available elsewhere. The issue of the plaintiff's inability to pursue her pre‑accident employment was not vigorously pursued. Although none of the medical witnesses definitively stated that they did not consider that she would be able to do that work now that her symptoms have significantly improved it is also clear that Qantas were of the opinion on the basis of the medical reports supplied to them in 2002 that she should not continue to work as a customer service agent. It may well be that they were concerned about any possible exacerbation of her symptoms and the impact it may have on them in terms of workers' compensation or negligence claims. However, even if it was the case that she physically may have been able to return to work on the check‑out counters that employment was no longer available to her. I consider it appropriate that the issue of the plaintiff's loss of earning capacity should be approached on the basis that as a result of the accident she was unable to resume her pre‑accident employment as a customer service agent with Qantas. However, the assessment of this aspect of the plaintiff's damages will need to be heavily discounted to take into account her significant retained earning capacity.
Any assessment of the plaintiff's retained earning capacity is complicated by the fact that the reasons for her retirement from Qantas on 4 October 2002 and the fact that she has not pursued alternative employment is partly due to the consequences of the accident and partly due to what could be termed a lifestyle choice because of a need to care for her husband after he had a stroke in October 2002.
Although Ms Sgubin said that the normal retirement age from Qantas was age 60 she did not appear to be definite about this. As this was not pursued in cross‑examination I consider that the assessment of the plaintiff's earning capacity should be on the basis that she would have stayed at Qantas, either as a customer service agent, or in some alternative employment until the age of 65. Before the accident the plaintiff was a youthful looking fit woman who obviously enjoyed her job and had been working with Qantas for a long period of time.
The medical evidence strongly supports a finding that the plaintiff is able to work on a full time basis if she avoids heavy lifting. The plaintiff's work experience has been almost exclusively in the secretarial/clerical area and it is only the need to handle luggage as a customer service agent that has prevented her from returning to her pre‑accident job. The plaintiff stated that she regarded herself as able to do clerical work and said that she thought that she would be able to find such a position. While her decision to leave work in October 2002 was in part influenced by a lifestyle choice she is obviously in a position to pursue alternative employment if she should choose to do so. The difficulty that she may have in obtaining appropriate full time employment at her age will have to be factored into the assessment. Taking all these circumstances into account I consider that the plaintiff's loss of earning capacity should be assessed in accordance with the Schedule of Loss of Future Earnings and Entitlements provided by the plaintiff but reduced by 50 per cent to reflect her retained earning capacity. In deciding on a figure of 50 per cent I have taken into account that the plaintiff's claim for past economic loss will be assessed up to 18 February 2003 in accordance with the schedule of past economic loss provided by the plaintiff. It is likely that if the plaintiff had sought alternative employment she would have been able to obtain a position either with Qantas or with another employer in the period from October 2002 to February 2003. In addition to the discount of 50 per cent for retained earning capacity there will be a further discount of 10 per cent for the usual contingencies including the fact that the plaintiff may have chosen to retire from the work force at an earlier age than 65 particularly in the light of her husband's illness and her need to care for him. Reducing the final balance of the Schedule for Loss of Earning Capacity by 60 per cent results in the sum of $129,613. I would have awarded the plaintiff the sum of $130,000 for loss of earning capacity.
I propose to provisionally assess damage for past economic loss in accordance with the schedule provided by the plaintiff, namely the sum of $26,362.60. This reflects a net loss to the plaintiff after payment of workers' compensation and including interest on past loss and past superannuation loss together with interest. I would allow the amount included in the plaintiff's schedule of agreed special damages and workers' compensation payments in the amount of $65,605.35. Had I found for the plaintiff on liability and made an award in her favour the amounts received as workers' compensation would be repaid to the workers' compensation insurer for Qantas. There was no real issue in relation to the plaintiff's claim for future medical treatment expenses and I would allow that in the amount of $5,777 in accordance with the schedule. There was also no dispute in relation to the items of special damage included in the plaintiff's schedule and I would allow that in the amount of $757.
I would assess general damages in the sum of $30,000. Although the plaintiff has made a good recovery she has undergone operative procedures on her right knee and a long course of treatment and physiotherapy both in relation to her knee and her lower back symptoms. She is unable to pursue some pre‑accident recreational activities.

The third party proceedings

The defendant's claim against Smart Carte was for an order that it indemnify the defendant against the plaintiff's claim including all costs incurred by the defendant in defending the claim by the plaintiff and the costs of the second party proceedings. The defendant's claim for indemnity rests upon the provisions of cl 3.2 and cl 3.14 of a written licence and authority agreement between the defendant and Smarte Carte. Pursuant to cl 3.2 Smarte Carte covenants with the defendant "to be totally responsible and liable for Smarte Carte's acts and its customers acts, matters and things concerned in any way with its business or activity in conducting the business of providing baggage trolleys at the Airport.
Pursuant to cl 3.14 Smarte Carte agreed to indemnify the defendant against all claims, actions, liabilities and losses arising from, and any costs, charges and expenses occurred in connection with injury to any person caused by :
"(c)an act, negligence or default of the second third party or its customers;
(d)some danger created by the second third party or its customers; or
(e)the operation of any equipment, machinery or thing by any person;
(f)any other act or thing other than the negligence or default of the defendant which may arise from or in relation to the use of the Airport by the second third party or its customers."
The defendant claims that upon a proper construction of the relevant provisions of cl 3.14 the pushing of the baggage trolley immediately prior to the collision was either:
·an "act";
·created a "danger";
·was covered by the expression "operation of any equipment";
·represented "any other act or thing…which may arise from or in relation to the use of the Airport" by Smarte Carte.
During the course of submissions at the conclusion of the trial Smart Carte submitted that on a true construction of the provisions of the agreement the act of pushing a trolley could not be construed as an action that would render the second third party liable to indemnify the defendant. It was argued that there is a presumption against an interpretation of an indemnity clause applying in the case of negligence if the clause can be construed as providing protection from some other kind of liability and therefore having an alternative operation. (See Allied Westralian Finance Limited Wenpac Pty Ltd & Ors, unreported; FCt SCt of WA; Library No 950597; 8 November 1995). It was submitted that it is clear from the provisions of cl 3.14 that it contemplates events causing damage to the property at the Airport or to the property of lessees or licensees at the Airport and giving rise to claims against it under a lease, licence or contract.

It was further submitted that on the proper construction of the indemnity clauses according to its natural and ordinary meaning the indemnity clause does not extend to the plaintiff's claim in the circumstances of this case. Further, it is claimed that cl 3.14(f) makes it clear that there is no indemnity where the injury was caused by the negligence of the defendant.
If I had found the defendant liable in negligence to the plaintiff it would have been on the basis that the defendant was negligent in failing to implement a system of spider queues in the departure hall of the Airport or, alternatively, on the basis that it failed to supervise and control customers pushing luggage trolleys and by inference failed to prevent a child misusing a trolley in such a manner as to constitute a risk to the plaintiff. If a finding had been made on either of these grounds I would not have found that Smarte Carte would be liable to indemnify the defendant. Although it is arguable that the use or misuse of a trolley could be characterised as coming within the classes of conduct set out in s 3.14(a), (b) or (c) I do not consider that on a true construction of the indemnity provisions that it extends to claims or costs arising as a result of injuries caused by the negligence or default of the defendant.
In Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500 at 510 the High Court held that the meaning of a limiting term:
"Is to be determined by construing the clause according to its natural and ordinary meaning, read in the light of the contract as a whole, thereby giving due weight to the context in which the clause appears including the nature and object of the contract, and, where appropriate, construing the clause contra proferentem in case of ambiguity."
Although the natural and ordinary meaning of the sub‑clauses in cl 13.4 appears to include such events as the use/misuse of a trolley, when these sub‑clauses are read together with cl 13.4(f) it is apparent that the indemnity does not extend to negligent acts of the defendant. In my opinion the effect of cl 13.4(f) is so clear that it is not really necessary to construe the clause contra proferentem as there is little ambiguity. However, if this view is not correct then the presumption referred to above places the issue beyond doubt.
Therefore for the purposes of determining appropriate orders as to costs I find that if I had determined the issue of liability in favour of the plaintiff the defendant would not have succeeded in its third party claim against Smarte Carte.