Stallard v Sunbury Shopping Centre Pty Ltd
[2015] VCC 1890
•21 December 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-12-05921
| ROBIN STALLARD | Plaintiff |
| v | |
| HUME CITY COUNCIL | First Defendant |
| and | |
| SUNBURY SHOPPING CENTRE PTY LTD | Second Defendant |
---
JUDGE: | HER HONOUR JUDGE MORRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20, 23, 24 February, 27 April and 29 April 2015 | |
DATE OF JUDGMENT: | 21 December 2015 | |
CASE MAY BE CITED AS: | Stallard v Sunbury Shopping Centre Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1890 | |
REASONS FOR JUDGMENT
---
Subject: NEGLIGENCE – OCCUPIERS’ LIABILITY
Catchwords: The plaintiff was injured when he fell from an elevated walkway – whether the defendant as occupier was negligent – whether the defendant as occupier owed the plaintiff a duty of care, breached the duty it owed to the plaintiff and caused the plaintiff’s injury as a result of any negligence – Court not satisfied that the defendant was negligent – Court not satisfied that the defendant failed to take proper precautions against reasonably foreseeable risks – Court not satisfied that certain precautions, such as tactile surface tiles, signs or yellow paint, would have made a difference in these circumstances – the plaintiff’s failure to take reasonable care for his own safety was the predominant, if not the only, cause of his injury, loss and damage – causation not established
Legislation Cited: Wrongs Act 1958
Cases Cited:Victorian WorkCover Authority v Jones Lang Lasalle (Vic) Pty Ltd [2012] VSC 412; Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; Bainbridge v James [2013] VSCA 12; Raciti v Wadren Pty Ltd [2006] VSCA 132; Neindorf v Junkovic (2005) 222 ALR 631; Wyong Shire Council v Shirt & Ors (1980) 146 CLR 40; [1980] HCA 12; Powney v Kerang and District Health [2014] VSCA 221; Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19; AMA v State of Victoria [2012] VCC 1453; Krasser v Adecco Holdings Pty Limited and Onesteel Trading Pty Ltd [2003] VCC 31; Ventrice v Joneal Pty Ltd [2009] VCC 463; Ascher v State of Victoria [2013] VCC 249; Sutton v Victorian Alps Wine Company Pty Ltd [2014] VCC 2183; McDonald v Lodden Mallee Housing Services Ltd [2004] VCC 35
Judgment: Proceedings dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S A Smith | Shine Lawyers |
| For the Second Defendant (First Defendant no longer involved in the proceedings) | Mr C Hanson (February dates), then Mr J Brett (April dates) | HWL Ebsworth Lawyers |
Table of Contents
Background........................................................................................................................................ 1
The issues........................................................................................................................................... 2
Summary of findings........................................................................................................................ 3
The hearing......................................................................................................................................... 4
Legal principles................................................................................................................................. 5
The evidence...................................................................................................................................... 8
The Plaintiff’s case............................................................................................................................ 8
A view is conducted..................................................................................................................... 12
The Defendant’s case.................................................................................................................... 18
The submissions............................................................................................................................ 24
Determination of the issues......................................................................................................... 35
Duty of care........................................................................................................................ 35
Breach of duty.................................................................................................................... 35
Causation........................................................................................................................... 45
Conclusions regarding the particulars of negligence alleged
Damages............................................................................................................................ 56
Contributory negligence.................................................................................................... 57
Conclusions and Orders............................................................................................................... 57
HER HONOUR:
Background
1 On 2 December 2009, the plaintiff, Robin Stallard, was injured when he fell from an elevated walkway that ran adjacent to a shop known as “Best and Less” (“the shop”), at Sunbury Shopping Centre. He had walked from the Sunbury train station through carparks and across various surfaces when he arrived at the walkway at the back of the shop. The walkway extended from an adjoining carpark at the rear of the shop and ran alongside the driveway access to the carpark. As it reached the front corner of the shop, the walkway abutted the main footpath at Evans Street, which was perpendicular to it. Customers could not enter the shop directly from the walkway. Rather, there was an entrance at the Evans Street footpath.
2 The walkway and the main footpath were not at the same level. The walkway was higher, since it provided a safe, delineated thoroughfare for pedestrian traffic traversing from the carpark towards the main shopping strip on Evans Street. At the point where the walkway joined the lower footpath at Evans Street, the walkway fanned towards the shop, which was splayed at the corner. To accommodate the transition from the walkway to the footpath, there was both a step down and also a ramp, presumably for trolley or disabled use.
3 The edging of the walkway had previously been painted in yellow, except for the part that comprised the ramp. It is not in controversy that at the date of the incident, the paint had deteriorated, although it was still visible.[1]
[1]Exhibit E, photographs taken by the plaintiff’s daughter proximate in time to the incident.
4 The plaintiff stepped up onto the walkway at the rear of the shop, and he continued to walk upon it until he reached the splayed corner. There, he veered to the left, intending to turn left onto the footpath outside the shop. He looked straight ahead as he walked, not looking down at his feet or where he was going. As he stepped out onto the Evans Street footpath, he failed to notice either the ramp, or the yellow paint. He did not observe the drop in height. He fell and was hurt.
5 The plaintiff brings these proceedings to recover damages against the second defendant, the Sunbury Shopping Centre (“the defendant”[2]), the occupier in control of the walkway. He alleges negligence, and more particularly, asserts that the defendant breached its duty of care as occupier of the walkway. In essence, he argues that the edge of the walkway should have been more clearly marked, such as by fresh, bright yellow paint, and that preventative measures should have been established to warn of the height difference, such as by a sign or by textured ground tiles.
[2]Proceedings against the first defendant have been discontinued
6 Almost four years after the incident, and for reasons unconnected with it, the defendant repainted the edge of the walkway in a most prominent, bright yellow, which was evident at a view conducted on 24 February 2015.[3]
[3]A video was recorded of the view, exhibit P
7 The defendant accepts that it owed the plaintiff a duty of care, but denies any negligence on its part. The defendant also argues that the plaintiff has failed to prove the causal nexus between any alleged negligence on the one hand, and the plaintiff’s loss and damage on the other. Further, it asserts that if there was negligence on its part, which was a cause of the plaintiff’s injury, loss and damage, the plaintiff was also negligent, which negligence contributed to his injury, loss and damage.
The issues
8 The following questions arise for determination:
(a) Was the defendant negligent –
(i) because it allowed the yellow paint marking the edge of the walkway to deteriorate to the level it had as at the date of the incident (should the edging have been repainted before that date)? and/or;
(ii) because it had failed to install tactile ground markers or warning signs to alert pedestrians of the difference in height between the walkway and the footpath?
(b) Is causation established – have the elements of s51(1) of the Wrongs Act 1958 been satisfied? (but for the defendant’s negligence, would the plaintiff have been injured?)
(c) Was there any negligence on the part of the plaintiff that was a cause of his injury, loss and damage?
(d) In what amount are the plaintiff’s damages assessed?
(e) In what proportion are the plaintiff’s damages to be reduced to account for any contributory negligence?
Summary of findings
9 In summary, I would answer the above questions as follows:
(a) The defendant admits that the yellow edging paint had deteriorated at the relevant time, and that there were no tactile ground markers or warning signs indicating the imminent drop in height from the walkway to the footpath: Was that negligent in all the circumstances? – No, there is no negligence. A standard of perfection was not required and the paint, albeit in a deteriorated condition, was sufficiently prominent in all the circumstances (including the contrast colours of the areas abutting the walkway) to warn of its edge. Nor did the failure to establish other visual or tactile markers warning of the walkway’s edge (ground tiles or signs) constitute a breach of the duty owed to the plaintiff. The plaintiff has failed to establish that a reasonable occupier in the defendant’s position would have taken the precautions that he alleges the defendant did not take in this case.
(b) Is causation established – but for the defendant’s negligence, would the plaintiff have been injured? – Factual causation is not established. The presence of bright yellow paint, warning signs or tactile ground tiles would not have made a difference. The plaintiff was not looking where he was walking, and admitted that he would not have seen the paint, even if freshly painted in bright yellow. The plaintiff failed to observe signs he walked past in the vicinity of the walkway edge, on the wall and in the approximate position where the plaintiff asserts there should have been a specific warning about the height difference between the edge of the walkway and the footpath below. There is no satisfactory evidence to explain how and why the plaintiff would observe such a warning sign when he failed to see the other signs already in the proposed vicinity.
(c) Was there any negligence on the part of the plaintiff that was a cause of his injury, loss and damage? Although it is not necessary to answer this question, in case I am wrong in my above findings, I would find that the plaintiff failed to take reasonable care for his own safety and that he bears the majority of responsibility for his damage.
(d) and (e) In what amount are the plaintiff’s damages assessed and in what proportion are they to be reduced to account for his contributory negligence? – I decline to assess the plaintiff’s damages in view of my finding that the elements of his cause of action in negligence are not proved.
10 Accordingly, the plaintiff’s claim must be dismissed.
The hearing
11 The hearing commenced before me on 20 February 2015 and continued on 23 and 24 February and 27 April and 29 April 2015.
12 Mr S Smith appeared on behalf of the plaintiff. Mr C Hanson appeared on behalf of the defendant on 20, 23 and 24 February 2015. On 24 February 2015, a view was conducted. Thereafter, in April 2015, Mr J Brett appeared on behalf of the defendant.
Legal principles[4]
[4]These principles are summarised in the ‘Civil Juries Charge Book’, Judicial College of Victoria, Charge 2.1.3
13 For the purposes of this case, the plaintiff must prove four elements to the Court’s satisfaction on the balance of probabilities:
(i) Duty of care (not in issue);
(ii) Breach of duty;
(iii) Causation; and
(iv) Damage.
14 The defence of contributory negligence has been raised.
15 The defendant must prove on the balance of probabilities that the plaintiff failed to take reasonable care for his safety in all the circumstances and that this failure was a cause of his injury, loss and damage.
(i) – Duty of care owed as occupier
16 It is not in controversy that, as occupier, the defendant owed to the plaintiff a duty to take such care as, in all the circumstances of the case, was reasonable to see that the plaintiff was not injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises.[5]
[5]Section 14B of the Wrongs Act 1958
(ii) – Breach of duty
17 In deciding what reasonable care was required of the defendant, and whether the defendant failed to take such care, the test is an objective one. The Court must assess the practical content of the defendant’s duty by reference to the standard of care expected of an ordinary, reasonable occupier of premises of the type here in question, having regard to all the circumstances. Breach of duty may be established by proving an act and/or omission on the part of the defendant.
18 The question of whether the defendant has breached the duty of care owed to the plaintiff is to be answered prospectively, not with the benefit of hindsight.
19 Section 14B of the Wrongs Act 1958 (“the Act”) provides:
“Liability of occupiers
(1) The provisions of this Part apply in place of the rules of the common law which before the commencement of the Occupiers' Liability Act 1983 determined the standard of care that an occupier was required to show towards persons entering on his premises in respect of dangers to them.
(2) Except as is provided by subsection (1) the rules of common law are not affected by this Part with respect to the liability of occupiers to persons entering on their premises.
(3) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that any person on the premises will not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises.
(4) Without restricting the generality of subsection (3), in determining whether the duty of care under subsection (3) has been discharged consideration shall be given to—
(a) the gravity and likelihood of the probable injury;
(b) the circumstances of the entry onto the premises;
(c) the nature of the premises;
(d) the knowledge which the occupier has or ought to have of the likelihood of persons or property being on the premises;
(e) the age of the person entering the premises;
(f) the ability of the person entering the premises to appreciate the danger;
(fa) whether the person entering the premises is intoxicated by alcohol or drugs voluntarily consumed and the level of intoxication;
(fb) whether the person entering the premises is engaged in an illegal activity;
(g) the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.
(5) Nothing in this section affects any obligation to which an occupier of premises is subject by reason of any other Act or any statutory rule or any contract.”
20 A defendant is not liable to a plaintiff for not taking precautions against a risk of injury unless the risk was foreseeable. In this regard, ‘foreseeable’ means a risk of injury of which the defendant actually knew, or one of which it ought to have known. A defendant cannot avoid liability simply by saying that it did not know of the risk that materialised, if it ought to have known of that risk. Thus, the plaintiff may establish “foreseeability” by proving either that the defendant knew of the risk, or that a reasonable person in the defendant’s circumstances would have known of the risk.
21 A defendant is not liable to a plaintiff for not taking precautions where the risk that injury will eventuate is insignificant. A risk of injury which is far-fetched or fanciful is an example of a risk which is insignificant.
22 A defendant is not liable to a plaintiff for not taking precautions unless a reasonable person in the defendant’s position would have taken those precautions. The relevant question to be answered is whether the plaintiff has proved that a reasonable person in the defendant’s position would have taken the precautions which he alleges the defendant did not take in this case.
23 Deciding what, if anything, a reasonable occupier would do by way of response to a foreseeable risk of injury – and thus whether the defendant breached its duty of care to the plaintiff – depends particularly upon balancing out the probability that the harm would occur if care was not taken, the likely seriousness of the harm, and the burden of taking precautions to avoid the risk of harm.
(iii) – Causation
24 The plaintiff must prove that the defendant’s negligence was a cause (not the only cause) of his injury, loss and damage.[6]
[6]Section 51 of the Wrongs Act 1958
25 Section 51 of the Wrongs Act applies. That section provides:
“General principles
(1) A determination that negligence caused particular harm comprises the following elements—
(a) that the negligence was a necessary condition of the occurrence of the harm ( factual causation ); and
(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ( scope of liability ).
(2)In determining in an appropriate case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be taken to establish factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3)If it is relevant to the determination of factual causation to determine what the person who suffered harm (the injured person ) would have done if the negligent person had not been negligent, the matter is to be determined subjectively in the light of all relevant circumstances.
(4)For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.”
26 “Factual Causation” referred to in ss(1) is essentially what is known as the “but for” test.[7] The plaintiff must prove that without the negligent act or omission, the harm probably would not have occurred.
[7]Powney v Kerang and District Health [2014] VSCA 221 at paragraph [2]. See also Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 at 440; Wallace v Kam (2013) 250 CLR 375 at 383; Strong v Woolworths (2012) 246 CLR 182 at 190 cited in Powney (supra) at paragraph [73]. See also AMA v State of Victoria [2012] VCC 1453 at paragraph [333]
(iv) – Damage
27 The plaintiff must prove that the incident caused or materially contributed to his injury, loss and damage.
The evidence
The Plaintiff’s case
28 The plaintiff gave sworn evidence and tendered a number of exhibits:
Exhibit Short Description A Booklet of 19 Photographs
B Photograph of the shopping centre and surrounds depicting the route taken by the plaintiff on 2 December 2009
C PCB page 194 depicting where plaintiff says he mis-stepped off the kerb
D For identification – Report of Mr Nikola Josevski, engineer, dated 5 December 2014 (PCB pg.36-173)[8]
E Photographs taken by the plaintiff’s daughter (PCB 88-214)
F Questions and Answers 9 and 10 – Defendant’s Answers to the Plaintiff’s Interrogatories
G Report of Mr Thomas Kossman dated 21 July 2011 (PCB 220-225)
H Report of Mr Thomas Kossman dated 16 February 2015 (PCB 226-227)
J Report of Dr Tamba Lebbie dated 8 June 2010 (PCB 228-231)
K Ultrasound report of Dr Kim New dated 3 December 2009 (PCB 232)
L Ultrasound report of Dr S Begg dated 7 January 2010 (PCB 233)
M Ultrasound report of Dr R Langford dated 2 November 2010 (PCB 234)
N Photographs taken by Mr Josevski that appear between pages 99 and 162 PCB
O Mr Josevski’s report regarding measurements of walkway and surrounds (PCB 65)
P Video footage of the View conducted on 24 February 2015
Q Written submissions of the plaintiff.
[8]Not tendered absolutely – only one page pf the report was tendered as exhibit O
The Plaintiff’s evidence
29 The plaintiff was born in October 1944 and as at the date of hearing, was aged seventy years. He was born in the United Kingdom and was educated to age fifteen. He immigrated to Australia in 1970.
30 The plaintiff previously worked as a factory worker and forklift driver (in the United Kingdom) and also served in the army for about four years. After arriving in Australia, the plaintiff worked in a variety of occupations including as a builder’s labourer, factory worker, rubber worker and glazier. In 1990, he moved to Queensland. He retired in 2009.
31 Over the years, the plaintiff suffered from a number of health problems, including depression, and from a bad back that was injured when he fell from a ladder. He also sustained a knee injury at work.
32 On 2 December 2009, the plaintiff was staying at his daughter’s home. He attended the Sunbury Shopping Centre. He walked from the Sunbury railway station to the shopping centre.[9] As far as the plaintiff can recall, it was not bright that day[10] and the plaintiff walked at a “normal pace”[11] and he looked “straight ahead”.[12] Taken to photographs of the walkway where it met the footpath, the plaintiff did not think that he walked on any part of the ramp area – “could have done on the edge of it. I’m not 100 per cent sure.”[13]
[9]The plaintiff marked his path of travel on Photograph 3 of exhibit B
[10]Transcript (“T”) 264
[11]T46
[12]T46
[13]T48
33 The plaintiff was asked to indicate on a photograph the location at which he fell.[14] He marked the position at the top of the kerb:[15] “I mis-stepped there because I thought I was on level ground.”[16] The plaintiff was intending to move from the walkway onto the footpath and –
“I knew the kerb was up on the walkway … but when I took my walk, it looked like it was all level. … That was my undoing. … [as I went to step from the walkway onto the footpath] I fell over [because] I thought it was on flat ground … and I fell because it was – it was just like walking in mid air.”[17]
[14]Exhibit C
[15]T49
[16]T49
[17]T49 – 50
34 The plaintiff fell to the ground, striking his right arm, which he had extended in attempt to break the fall. He felt pain in his shoulder. He then attended a medical centre down the road, where he was treated for his injury.
35 The plaintiff then described the course of his medical treatment and the impact that the injuries have had on his life.
Cross-examined by Mr Hanson
36 When cross-examined by Mr Hanson, the plaintiff described in detail his path of travel whilst walking from the railway station to the shopping centre. Along the way, he did not see a stop sign or a speed hump.[18]
[18]T68
37 Taken to Photograph 11 of exhibit B, which depicts the presence of signs attached to the side wall of the shop adjacent to the walkway,[19] the plaintiff was asked whether he saw any of those as he was walking along.[20] He responded “No, not really”.[21]
[19]This is the approximate area in which the plaintiff asserts that the defendant ought to have erected signs warning of the difference in height between the walkway and the footpath.
[20]T68
[21]T68
38 The plaintiff agreed that he stepped off the walkway in a normal gait, found no ground, and fell forward. Then, the transcript records this series of questions and answers:
Q:“As you were walking down with the wall at Best and Less on your left and as you got towards the end near Evans Street did you observe that there was a ramp in the footpath?---
A:I was looking forward and I thought the ground was level on the front, the same as where I was walking.
Q:So you’re head up and eyes forward?---
A:Yes.
Q:Not looking down near your feet?---
A:No. Looking out for other pedestrians.
Q:Didn’t see the ramp?---
A:Well, I must have seen the ramp but I was looking straight forward, as I said.
Q:… Do you recall seeing a ramp?---
A:No, I didn’t.
Q:What you recall is you’re walking along, then the ground is not there?---
A:That’s correct.
Q:And over you go?---
A:Yes.
Q:That’s the thing that sticks in your mind, no ground?---
A:That’s right, yes.
Q:The rest of it – the ramp, the yellow paint – that’s something you’ve only thought about once you’ve started looking at photos?---
A:I came back to look at it.
Q:Yes, afterwards?---
A:After my accident and it was all worn.
Q:As you were walking down the path, Best and Less on your left, you didn’t know whether there was yellow paint there or not, did you?---
A:No, I didn’t because I was looking straight front.”[22]
[22]T69 – T70
39 The plaintiff was then cross-examined about the extent of his injuries and their impact upon his life.
A view is conducted
40 A view of the shopping centre and surrounds, including the railway station and the path that the plaintiff said he took from the railway station to the walkway, was conducted on 24 February 2015.[23]
[23]Exhibit P is a recording of the view and a transcript of the view is also available
Plaintiff re-examined following the view
41 Following the view, Mr Smith re-examined the plaintiff. He took him to the above cross-examination about whether he had seen the yellow paint on the footpath at the time of the incident. The transcript records these questions and answers:
Q:“… you were asked a question by Mr Hanson when you were being cross-examined about whether you’d seen the yellow paint on the footpath at the time that you were walking immediately before your accident and you said that you didn’t. Do you recall that?---
A:Yes, I do.
Q:You attended the view today?---
A:Yes, I did.
Q:And you saw the state of the paint on the edge of the footpath today?---
A:Yes.
Q:If the state of the paint at the time of your accident was the same as it was today, as you saw it today, would you have observed it as you were walking along the walkway?---
A:No.”[24]
[24]T230 – T231
42 A month later, on 27 April 2015, Mr Smith asked the plaintiff further questions. Again, he directed the plaintiff to what was seen at the view conducted on 24 February 2015. The transcript records this exchange:
Q:“Do you remember the state of the paint, the yellow paint, on the corner of the kerb of the walkway – what’s been described as the walkway? Do you understand?---
A:Yes.
Q:Have you got in your mind what it is I’m asking you to think about? What the paint looked like on the kerb corner of the walkway when you went and had the view about two months ago?---
A:It was newly painted.
Q:So just have that in your mind. So that’s on the one hand. On the other hand I want you to think about the state of the paint on the corner of the kerb as it was at the time you had your accident back in December 2009. Do you understand?---
A:Yes.
Q:So on the one hand you’ve got the paint as it was in December 2009, on the other hand you’ve got the paint as it was in February 2015 when you saw it?---
A:Yes.
Q:If the paint in December 2009 had been in the same state as it was in February 2015, would you have seen that yellow paint marking the corner of the walkway?---
A:Yes, I would have seen that.
Q:And having seen that yellow paint on the corner of the walkway, what, if anything, would you have done differently as you walked along the walkway approaching the point where the walkway meets Evan Street, the black hotmix area?---
A:Sorry, could you repeat that question.
Q:If you had seen the yellow paint marking the corner of the kerb in 2009, so at the time you had your accident - if you’d seen that yellow paint there, what, if anything, would you have done differently when you walked from the walkway onto the black hotmix on Evan Street?---
A:I would have stepped down. Is that correct, the answer to your ‑ ‑ ‑
Q: You would have stepped down. Why ‑ ‑ ‑“
HER HONOUR:
Q: “No, he asked, ‘Is that what you’re asking me?’”
MR SMITH:
Q:“Yes, that’s what I’m asking you. What would you have done differently?---
A:I would have stepped down, seeing the yellow paint. They’re [scil. there’s] new paint.
Q:Why is it that the presence of the yellow paint would have caused you to step down?---
A:It would have told me there was, you know, danger.”[25]
[25]T258 – T259
Further cross-examination
43 When cross-examined further by Mr Brett (who now appeared on behalf of the defendant in place of Mr Hanson) regarding the change in his evidence about the yellow paint, the transcript records this exchange:
Q:“The questions that my learned friend just asked you a moment ago are very similar to some questions that you were asked back in February. Do you remember going on the view in February?---
A:Yes, in February.
Q:And then later that day the court resumed in this courtroom?---
A:Yes, that’s correct.
Q:And you gave some further evidence?---
A:Yes. Sorry, I ‑ ‑ ‑
Q:There was just a few questions asked by Mr Smith?---
A:Sorry?
Q:It was just a few questions that were asked by Mr Smith?---
A:Yes, some questions were asked.
Q:I will read the questions to you. First of all, you were asked, ‘You attended the view today?’ and you answered, ‘Yes, I did.’ You were asked, ‘And you saw the state of the paint on the edge of the footpath today?’ and you answered, ‘Yes’?---
A:Yes.
Q:Do you recall that?---
A:Yes.
Q:And you were then asked, ‘If the state of the paint at the time of your accident was the same as it was today, as you saw it today, would you have observed it as you were walking along the walkway?’ and you answered, ‘No’?---
A:I wasn’t clear of the question.
Q:What didn't you understand about it?---
A:When I had my accident I was looking straight ahead what’s in front of me and - or to my left and then I stepped into mid-air.
Q:I understand that. That was the point, wasn’t it? When you had your accident you were looking straight ahead of you?---
A:Yes.
Q:And you didn’t notice anything about the state of the paint?---
A:No.
Q:And that’s why when you were asked, ‘If the state of the paint at the time of your accident was the same as it was today, as you saw it today, would you have observed it as you were walking along the roadway?’ and you said, ‘No.’ That was your answer then?---
A:Yes.
Q:And that’s correct, isn’t it?---
A:Yes.
Q:You wouldn’t have seen it no matter how bright it was because you were looking straight ahead?---
A:I was looking straight ahead.
Q:So you wouldn’t have seen it no matter how bright it was?---
A:I would have seen it if it was painted when I had my accident.
Q:That’s not what you said before. When you were asked that a month or so ago, you answered that you wouldn’t have seen it?---
A:M’mm.
Q:That was true, wasn’t it?---
A:Yes.”[26]
[26]T262 – T263
Further re-examination
44 Yet further re-examined by Mr Smith on this subject, the transcript records:
Q:“… you were just asked a question by Mr Brett about the evidence that you'd given back in February and you said no, you wouldn't have seen the difference in the paint. And your answer was you were confused about the question?---
A:I was confused about the questioning.
Q:Back when it was asked back in February, what was your confusion about the question?---
A:The confusion was I suppose is this painted or unpainted? I'm just not sure of the question.
Q:I understand. Now, you were asked some questions about the state of the light at the time of your accident. Do you have any good recollection about how bright it was that day?---
A:It wasn't bright that day really, as far as I know.”[27]
[27]T263 – T264
The medical evidence
45 There is not much in controversy about the plaintiff’s medical evidence, which is summarised under heading “Damages”, in Mr Smith’s written submissions, exhibit Q, set out in full below.
Physical features of the walkway
46 One page of the report of Nikola Josevski, engineer, dated 5 December 2014, was tendered to prove the measurements and features of the walkway and surrounds:[28]
[28]Exhibit O
“Site Inspection
The incident location was attended by the author on Friday 28 November 2014 in fine and dry conditions. Photographs were taken and are included in the body of the report where relevant. The author also took relevant measurements during the inspection.
The following relevant points are noted from the site inspection:
·The footpath (including the painted kerb) is 960mm wide;
·The painted kerb alone is approximately 125mm wide;
·Distance from the kerb edge to the start of the kerb ramp is approximately 670mm, not including the sloping sides;
·Distance from kerb edge to the start of the sloping sides of the kerb ramp is approximately 380mm;
·Distance from building edge (where the building line parallel to the footpath chamfers to the left) to the start of the kerb ramp is 1,120mm;
·Width of the kerb ramp is approximately 910mm, not including the sloping sides;
·Length of the kerb ramp is approximately 880mm;
·The slope of the ramp was measured at 10° in three locations and 11° in one location. This is a slope of 1 in 5.7 and 1 in 5.1 respectively;
·The height of the kerb was measured at between 110mm and 141mm;
·Distance from the kerb adjacent to the footpath to the building wall where it chamfers again to become parallel with the main footpath on Evans St is 3,000mm;
·There were no Tactile Ground Surface Indicators (TGSIs) on the concrete footpath;
·When approaching the incident location along the footpath, there are three traffic signs located on the wall adjacent to the footpath. The signs are approximately 2m off the ground and are readily visible by both the pedestrians and vehicles alike[29]:
[29]These “readily visible” signs, that the plaintiff failed to see, are in the approximate position that the plaintiff says the defendant should have placed signs of the presence of an imminent drop in height from walkway to footpath.
o Sign 1: Pedestrian Walking Sign, and a white sign stating “Thank you for shopping please fasten your seat belts”;
o Sign 2: Speed hump sign;
o Sign 3: STOP sign;
·There were no signs warning pedestrians of the kerb ramp or the kerb itself and the change in level between the two footpaths;”
Questions and Answers 9 and 10 Defendants answers to the plaintiff’s interrogatories[30]
[30]Exhibit F
“9.Q: Prior to the accident did the second defendant via its servants or agents provide the plaintiff with any warning in relation to the presence of the height differential?
A:In answer to Interrogatory 9, I say:
Yes, to the extent as described in answer to interrogatory 10.
10.Q: If the answer to the preceding interrogatory is yes, provide the usual particulars of the warning so provided.
A:In answer to Interrogatory 10, I say:
Yes. The edge of the walkway was delineated with yellow paint to alert pedestrians of its presence and the height difference of the footpath.”
The Defendant’s case
47 Only one witness was called by the defendant, Marnie Joanne Harding. She commenced employment with the defendant in 2010, becoming manager in 2012. She did not work for the defendant at the time of the incident.
Marnie Joanne Harding
48 Ms Harding was the Centre Manager of the Sunbury Shopping Centre. She testified about the shopping centre’s system for recording incidents of injury. If, and when an incident is reported to Centre Management or security, an incident report is completed, normally by a security guard. The report is then provided to the witness or her personal assistant. From there it is forwarded to the insurer, Scott Winton.
49 Ms Harding conducted a search of the records back to 2003 in order to ascertain whether there were any previous reports of injuries.[31] As the reports prior to 2003 were archived, she was unable to locate them for the pre-2003 period. For the period post-2003 to the date of the incident, a complete set of incident reports was gathered and disclosed to the plaintiff’s legal representatives. Having examined those documents, Ms Harding was able to swear that in the period 2003 to December 2009, there were no reports of any incidents of injury or falling from or onto the walkway.[32]
[31]T272
[32]T273 – a fact not challenged by the plaintiff
50 Ms Harding also examined the incident reports in the period following the plaintiff’s fall. She found only one incident report. It concerned an elderly woman, aged ninety-two years, who fell on the walkway, but not in the same place that the plaintiff fell. On that occasion, the pedestrian fell at the other end of the path, near the loading bay.[33] Apart from this incident, there were no other reports recording any other incidents of injury occurring at, or in the vicinity of, the walkway.
[33]T273 – T274
51 In August 2013, Ms Harding directed that the walkway be repainted “for no other reason than it looked like it needed a repaint”.[34] She denied that the elderly woman’s fall prompted her decision to repaint the edge of the kerb.[35]
[34]T274
[35]T275
52 A copy of the incident report form regarding the elderly woman was tendered as exhibit 4, together with a chain of emails documenting action taken in response to the report. The exhibit describes how the incident occurred:
“[Elderly pedestrian] was walking on the path alongside Best and Less when she lost stability and fell forward onto Best and Less’ loading bay driveway.”[36]
[36]Exhibit 4
53 A photograph depicting where that incident is said to have occurred is attached to the exhibit dated 4 July 2013.[37]
[37]T275
54 Ms Harding produced the incident report that the plaintiff completed regarding his fall.[38] By agreement, any photographs that accompanied the original incident report were not tendered.[39]
[38]Exhibit 5
[39]T278
55 In the form, the plaintiff described how the incident occurred:
“Fell over on angled lip of footpath (have photos of location).”[40]
[40]Exhibit 5
56 When cross-examined by Mr Smith, Ms Harding denied any knowledge about the original purpose of the yellow paint on the walkway.[41] She agreed that on behalf of the defendant, it was her responsibility to ensure that the premises are kept safe for people who use it.[42] She also agreed that wherever there is a difference in height between two levels, there is inherent risk that someone might fall and sustain injury. However, in her role as Centre manager, Ms Harding never previously had to address such a risk,[43] although the safety of pedestrian walkways was one of her areas of responsibility.
[41]T280
[42]T283 – T284
[43]T284
57 Regarding the elderly pedestrian’s fall, Ms Harding testified that the incident occurred next to the loading bay, which was an area not intended for members of the public to use as a pedestrian walkway.
58 Ms Harding testified that she walked in the area of the walkway every day, checking for day-to-day issues requiring her attention. In 2013, she caused the edging of the walkway to be repainted “because I thought it looked like it needed repainting”.[44] Prior to that time, she thought “it was fine … I didn’t feel that it needed repainting. … I listened to our maintenance person and had it repainted in 2013.”[45] She agreed that prior to 2013, she had not given any thought to whether the edge of the walkway needed re-painting.[46]
[44]T286
[45]T286
[46]T286
59 Ms Harding stated that her duties included conducting a weekly inspection of the shopping centre. These inspections involved walking over the entire site, including the area where the elderly pedestrian fell.[47] Around the time of the elderly pedestrian’s fall, there was nothing to alert Ms Harding of the need to take any action in respect of the state of the walkway.[48] Ms Harding did not know whether the state of the yellow paint at the time of the elderly pedestrian’s fall (almost some four years after the plaintiff’s fall) was in any way implicated in her injury.[49]
[47]T287
[48]T287
[49]T288
60 Ms Harding testified:
“I take my job really seriously. I’ve got 60,000 people in our centre every week, and so I take it really seriously. [Regarding safety measures in place to deal with height difference], I believed that what was there was adequate at the time.”[50]
[50]T290
61 Ms Harding saw nothing in the section of the walkway that intersected with the Evans Street footpath that raised concern for immediate attention.[51]
[51]T292 – T293
62 Although Ms Harding agreed with the proposition that a difference in height creates a risk of injury, she added:
“… whenever I’ve looked at it, [it] hasn’t been unsafe in my inspections and in my weekly walk arounds.”[52]
[52]T302
63 When asked whether she was aware what steps, if any, had been taken to highlight the difference in heights between the walkway and the footpath on Evans Street, Ms Harding responded:
“I can’t answer that. I do a weekly inspection, as I’ve said. We have a compliance contractor that regularly visits the site quarterly, Essential Services. We have WorkSafe in my history as a centre manager and no-one has pointed out to me that the area is unsafe and I have to be guided by those as well.”[53]
[53]T305
64 Ms Harding denied that the pathway posed a risk of injury or that it constituted a safety issue.[54] She formed this conclusion, drawing on her experience gained in her day-to-day role as manager, and as a result of looking at other areas around the centre. She made a judgment call.[55]
[54]T307
[55]T312
65 I asked the witness to describe the factors she took into account when exercising her judgment about the safety of the area where the plaintiff fell:
Q:“… what are the actual facts that you took into account when exercising your judgment?---
A:The features of that area and what I took into account was I see that area where the thin pedestrian crossing is, that it’s more of a driveway entry for cars and people entering that carpark. I also acknowledged that pedestrians do walk in that area and I, after looking at the whole area, I didn’t think that area is or was unsafe. There is a pedestrian crossing that leads from the bulkhead near Best and Less across the other side, and that’s a marked pedestrian crossing, and that leads the customer from there to the other side of the road and then going over to the chicken shop going onto Evans Street, that is also highlighted in that very same area, but to the back end of the shopping centre. So the [plaintiff’s] fall was right on the walkway. Normally a customer would walk from the end of the crossing over the road and the other side. I am unaware if [the plaintiff] was coming in from Evans Street or out.”[56]
[56]T313
66 Ms Harding explained that she was not saying one side was safer than the other. Rather, she was trying to describe and place the walkway into its context and how she “looks at it”.[57]
[57]T313
67 Regarding her examination of the area where the plaintiff fell, Ms Harding testified:
“… I can tell the court that in the best of my ability I did not feel that that was unsafe.
…
… Because it didn't look to me ‑ ‑ ‑
… to be unsafe. In my walk arounds in other parts of the centre, if I see something that alerts me that needs to be repaired or remedied, I act on my judgment call straightaway.”[58]
[58]T314 – T315
68 Asked if she had ever thought about the capacity of persons walking along the walkway to see the drop in height to the footpath, Ms Harding testified:
“Well, I would just imagine that [pedestrians] … would be looking down as well and watching where they were going.
…
… because day‑to‑day if I walk in that manner, that’s certainly what I do. But, no, I hadn’t thought about that.”[59]
[59]T315 – T316
69 Ms Harding stated that when she walks on the footpath, she looks both ahead and down at her feet. She repeated that she had no idea why the edge of the walkway was originally painted yellow. In 2013, she thought repainting was required for cosmetic purposes.[60] Ms Harding was only aware of one occasion on which the edging of the kerb had been repainted, and that was in 2013.[61]
[60]T316
[61]T319
70 Ms Harding agreed that safety bollards in the vicinity were painted yellow to make them more visible to drivers, thereby reducing the risk of collision.[62]
[62]T316 – T317
71 In re-examination, Ms Harding swore that she never had difficulty in observing the difference in height between the walkway and the footpath. She considered additional highlighting to indicate the height difference to be unnecessary.[63]
[63]T328 – T329
72 The defendant tendered the following exhibits:
Exhibit Short Description One Clinical notes of Coolum Beach 7 Day Doctors for the Plaintiff (DCB 54-83)
2 Page 382 of Melways and blow up section of map 382
3 For identification – Photographs date stamped 23 December 2009 (DCB 1-5)
4 Information relating to incident report involving [elderly pedestrian][64] on 4 July 2013
5 Incident report form Sunbury Shopping Centre dated 2 December 2009 (PCB 215-219)
6 Written submissions of the defendant.
[64]I have deleted the name of the ninety-two-year-old pedestrian concerned, although her name appears in the original exhibit list
The submissions
73 I shall now set out, in full, the plaintiff’s written submissions, exhibit Q:
“SUBMISSIONS ON BEHALF OF THE PLAINTIFF
1.The court is required to have regard to the matters set out at section 14B(4) of the Wrongs Act 1958 (Vic) (‘the Act’), in determining whether the defendant has breached the duty of care which it admits, as the occupier of the premises, that it owed to the plaintiff. It is submitted that a consideration of relevant factors pertaining to the subject incident as set out in section 14B(4) are strongly in favour of the conclusion that the defendant has so breached its duty.
THE CONSIDERATION TO WHICH REGARD IS TO BE HAD PURSUANT TO SECTION 14B(4) OF THE ACT
(a) The gravity and likelihood of the probable injury
2.As a matter of common experience, the area in which the plaintiff suffered injury involved the prospect of a fall onto a hard surface from height, giving rise to potentially grave injury.
3.Further, the likelihood of injury could in no sense be described as far-fetched or fanciful, but rather was foreseeable, as was conceded by Ms Harding, both as a general proposition, and in particular in consideration of the site of the plaintiff’s accident, being the intersection of an elevated walkway running parallel to the ‘Best and Less’ store and the driveway used for vehicular access to a nearby car park (‘the walkway’) and the adjoining footpath on Evans St, Sunbury (‘the footpath’) which encapsulated a height differential (t.284.2-5; 301.1-302.3; 302.22-303.3)
(b) The circumstances of the entry onto the premises;
(c) the nature of the premises;
(d)the knowledge which the occupier has or ought to have had of the likelihood of persons or property being on the premises
4.There was nothing exceptional or unusual about the circumstances of the plaintiff’s entry onto the premises – he had entered onto the premises for the purchasing a cup of coffee (t.45); the premises being of a commercial nature designed specifically for the purpose of attracting persons onto the premises; and in doing so had utilised a walkway designated for the use of pedestrians to enter the premises (t.285)
(e) The age of the person entering the premises;
(fa) whether the person entering the premises is intoxicated by alcohol or drugs voluntarily consumed and the level of intoxication;
(fb) whether the person entering the premises is engaged in an illegal activity
5. These factors have no relevance to the present case.
(f) The ability of the person entering the premises to appreciate the danger
6.The plaintiff’s evidence as to the circumstances of his injury, which was unchallenged, was as follows:
i) At the time of his injury he had, after attending at a nearby railway station, entered the walkway, at a point at or close to a painted yellow bollard situated proximate to a loading bay used in conjunction with the ‘Best and Less’ store. He was walking towards the footpath which was situated at the far end of the walkway (t.45)
ii) The day in question was a clear day, but not particularly bright. The prevailing light was closer to the state of light depicted in the bundle of photographs which form Ex.E than other photographs to which he was referred (t.45.24-25; 264.13-16; 264.22-26)
iii) At the time that he traversed the walkway he was walking at a normal pace, looking straight ahead, and keeping a lookout for pedestrians who may be walking upon the footpath on Evans St. (t.46.5-7; 69.14-18)
iv) At the point where he reached the corner of the ‘Best and Less’ store he bore to the left, following the contour of that store (t.47.29-48.3)
v) He does not believe that he walked upon the ramp from the walkway to the footpath at any stage (t.48.7-9)
vi) As he went to walk onto the footpath he mis-stepped as he believed, from his vantage point upon the walkway that the footpath was at the same level as the walkway. He stepped into mid-air, with the footpath being below the level where he expected it to be (t.49.3-4; 49.24-50.3)
vii) At the time of the incident the plaintiff did not see the yellow paint marking the edge of the walkway (t.70.2-7); however he did observe the state of the paint at the time he returned to the centre after the accident, and subsequently when he reported the incident to shopping centre management on 4 December 2009 (t. 72.4-7; 72.15-18 and Ex.5)
viii) That if, at the time of his accident, the state of the yellow paint delineating the edge of the walkway had been in an identical state to that which he had observed at the view conducted on 24 February 2015, he would have observed that paint (t.259.3-6; subsequently confirmed in cross-examination at 263.21-23)
This evidence of the plaintiff was not challenged other than by reference to earlier, apparently contradictory evidence of the plaintiff. The plaintiff explained this apparent contradiction on the basis that he had misunderstood the question when he had first been asked, being unsure as to whether that earlier question referred to the footpath in its re-painted state, or the state at the time of his accident (t.263.2-3; 264.6-9).
It is submitted that the Court would accept this explanation as being entirely consistent with the manner of the plaintiff’s presentation, namely, of an unsophisticated but honest person who struggled at times to understand what was being put to him. Significantly, he gave the evidence referred to above without having had further discussions with his legal representatives as to the nature of his evidence (t.258.9-11).
Further, the court has had the benefit, not only of an extensive series of photographs depicting the state of the premises at the time of the subject incident - Ex. E and (t.46.27-47.2); but also an extensive series of photographs depicting the present state of the premises (Ex. N), together with a view conducted on 24 February 2015. In particular, the plaintiff submits photos (using existing court book reference numbers) 188, 189, 190, 192, 193, 198, 199, 200, 202, 203, 204, 206, 207 and 213 from Ex.E, by way of contradistinction with photos 104, 105, 107, 111, 112, 113, 122, 134-137, 139-153, 159 and 160 from Ex.N, together with the Court’s own observations from the view, establish beyond controversy that there has been a very significant alteration in the state of the premises by reason of modifications made by the defendant since the time of the accident which render the existence of the edge of the kerb much more visible than was the case at the time of the subject accident.
In this regard the plaintiff’s evidence referred to above is corroborated and substantiated by the very distinct alteration in the state of the premises.
ix) That, had he observed such paint he would have acted differently at the time of his accident, as he would have been alerted to the danger and would have stepped down from the walkway onto the footpath (t.259.21-26). Such evidence, which was not challenged and should be accepted by the Court, is entirely consistent with common sense, and satisfies the burden of the causative test established by section 51 of the Act.
(g) The burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person
7.By way of answers to interrogatories numbered 9 & 10, sworn by Roger Neil Vedik, director of the defendant, on 24 April 2014 (Ex.F), the defendant has conceded:
i) That it foresaw a risk of injury arising to pedestrians using the walkway from the height differential between the walkway and the footpath;
ii) That the risk of injury was such that it required the defendant to take positive steps to guard against that risk;
iii) That a reasonable response to that risk required, at least, the painting of the edge of the walkway yellow to highlight that height differential.
8. Ex. F is as follows:
‘9.Prior to the accident, did the second defendant via its servants or agents provide the plaintiff with any warning in relation to the presence of the height differential [as defined in paragraph 4(b) of the Amended Statement of Claim]?
A.Yes to the extent as described in answer to interrogatory 10
10.If the answer to the preceding interrogatory is yes, provide the usual particulars of the warning so provided.
A.Yes. The edge of the walkway was delineated with yellow paint to alert pedestrians of its presence and the height difference of the footpath’
9.In this respect the submission which the defendant now seeks to make, that the height differential between the walkway and the footpath was completely plain and did not require the response of painting with a yellow edge (t.293.23-25), is entirely inconsistent with its own actions in having taken steps, prior to the subject accident, to delineate the edge of the walkway in yellow paint so as to ‘alert’ pedestrians to the height differential by way of ‘warning’ as to its existence.
10.Further, no evidence was called by the defendant by any person charged with responsibility for the safety of the premises at the time of, and prior to, the subject accident. Nor was any explanation given by the defendant to explain their failure to call such person. Accordingly the court can, and should, draw the inference that the evidence of such a person would not have assisted the defendant in determining:
a) Whether the defendant foresaw that the height difference between the walkway and the footpath constituted a foreseeable risk of injury
b) Why the edge of the kerb had been painted yellow
c) Why no attempt had been made to replenish the state of the paint to make it much more visible as was apparent from Ex. N and the view conducted by the court
d) Why the replenishment of the paint would constitute too great a burden relative to the risk of injury.
11.In this respect the evidence of Ms Harding, who was only employed by the defendant after the subject accident, and who only became charged with responsibility for the safety of the premises sometime after 2012, is almost wholly irrelevant.
12.It is trite to observe that matters occurring after the subject incident can have little or no bearing on the relevant question for determination by this Court – namely, whether a reasonable person in the position of the occupier, prior to the incident, would have foreseen the risk of injury arising from the state of the premises and taken steps to guard against such risk.
13.The limited sense in which evidence of subsequent facts can be relevant was discussed in Nelson v John Lysaght (Australia) Ltd (1975) 132 CLR 201 - namely, that where there is evidence of a defendant having taken steps to alter the state of something said to have given rise to an injury, and having knowledge of the matters pertaining to why those alterations were made; can create an evidentiary onus on the part of the defendant to demonstrate why such alterations could not reasonably have been made prior to the subject incident. It was presumably in respect of this consideration that Ms Harding was called to give evidence that the repainting of the walkway in 2013 was done only for ‘cosmetic’ purposes. It is submitted the Court would not accept this evidence having regard to:
a) Its contradiction as to the reason why the paint was placed upon the walkway in the first place, as set out at Ex. F
b) Ms Harding was, generally, not an impressive witness, being evasive in her answers, for instance, when seeking to explain why she had formed the view that the subject walkway area was safe (t.289, 292, 312, 314).
c) It is entirely illogical having regard to her evidence, ultimately, that the bollards and the speed hump in the general vicinity had been painted yellow to highlight their presence, and this was the only sensible explanation as to why they had been so painted (t.316.18-19; 317-318)
14.Further, it is conceded by the defendant that the cost of repairs to the paintwork conducted on 1 August 2013, was $275. No evidence has been called by the defendant to indicate why the incurring of such an expense, prior to December 2009, would have been unduly onerous or otherwise impracticable.
DAMAGES
The plaintiff’s special damages have been agreed between the parties in the sum of $15,000.
The plaintiff’s evidence relevant to the issue of pain and suffering damages was not the subject of challenge. Relevant evidence included the following:
a)He is dominantly right handed (t.56.17-19)
b)Prior to his injury he had suffered stiffness but ‘not too much’ problems with his back as the result of an earlier injury (t.36.28-29). He had stopped taking painkilling medication for that condition some years before the subject incident (t.74.28-30). He had never suffered any problems with his right shoulder (t.41.16-19).
c)Until his retirement shortly before the subject incident he had been coping with the physically heavy work of a glazier on a full-time basis (t.38.18-22)
d)He enjoyed recreational activities of fishing a couple of times per week, golf 1-2 times per month, and swimming a couple of times per week (t.39.2-12)
e)He was also involved in the care of his daughter who suffers from schizophrenia, assisting her with a range of domestic duties (t.41.7-15)
f)Immediately before his injury his plans for his recently commenced retirement included travelling around Australia, and more time spent playing golf, fishing and swimming (t.39.18-40.2)
g)At the time of his injury he felt an immediate pain in his right shoulder. Later that night the pain was ‘pretty bad’, with the pain moving to the elbow and the neck (t.50.15-16; 51.27-52.5)
h)This pain continued during the remainder of his 4 week stay in Sunbury (t.52.22-24)
i)Upon his return to Queensland he was referred for physiotherapy, which he underwent over approximately 5 courses, but which did not provide him with any permanent relief of his symptoms (t.53.1-3)
j)He has otherwise been advised that the only other form of treatment he may have is surgery with no guaranteed results and the probability that the shoulder may be made worse due to his age (t.54.15-17)
k)He was required to wear a sling for approximately 9 months after the incident, during which time the shoulder joint would feel painful and stressed if it was out of the sling (t.55.15-19)
l)During his period in the sling he was physically unable to assist his disabled daughter, which he found stressful and depressing (t.55.22-56.14), and required assistance from his ex-wife with duties around his home (t.57.10-16)
m)He continues to the present time to experience weakness in his dominant right arm compared to its pre-injury state (t.56.24-57.1)
n)While there has been some improvement in the state of his arm he is still disabled – ‘I can’t repeat very much stuff with it’ (t.58.1-3). There has been no change in the state of his arm in the last 2-3 years (t.58.6-7)
o)The condition of the arm has affected his sleep ever since the time of the injury, with pain when he rolls onto the arm (t.57.2-9; 58.9-10). He wakes every night due to pain in the shoulder (t.60.7-14)
p)He experiences pain, radiating from the shoulder to the neck and the elbow, when attempting a range of domestic duties including vacuuming for more than about 10 minutes, hanging the washing, cleaning the bathroom (t.58.11-13; 59.7-9; 59.21-24). He experiences such pain 3-4 times per week (t.58.25-27)
q)He experiences difficulty with driving, with turning the steering wheel and getting in and out of the vehicle (t.57.18-22). His driving time is limited to about 40 minutes (t.60.18-25).
r)He has a restricted range of movement, with both elevation and forward flexion, as demonstrated during his evidence (t.61)
s)He is required to take 2-4 Panadol nearly every day to cope with his pain (t.60.26-27)
t)Because of his injury he has not been able to return to golf, fishing or swimming (t.61.18-31)
u)He will not be able to fulfil his retirement plan to travel around Australia given the condition of his shoulder (t.61-1-5)
Radiological evidence demonstrates a full thickness tear of the supraspinatus measuring 14 mm, retracted by 16mm, and full thickness tearing of the infraspinatus (Ex.K)
The medical evidence tendered, being the reports of Mr Kossmannn (ex. G, H) and that of Mr Tamba-Labbie (Ex.J) are entirely consistent with the plaintiff’s evidence as to his injury, disability, and the lack of effective treatment to ameliorate his ongoing pain and disability.
In all the circumstances it is submitted that an appropriate award for damages for pain and suffering would be in the order of $150,000.”
74 I shall now set out, in full, the defendant’s written submissions, exhibit 6:
“OUTLINE OF DEFENDANT’S SUBMISSIONS
A. General
1.The defendant submits that the following factual matters emerged clearly from the evidence:
(a) The plaintiff had, since leaving the railway station, traversed a variety of surfaces. These included the broad concrete area adjacent to the railway station, the bricked surface of the bus station area and a roadway, all of which required the plaintiff to descend and ascend unpainted kerbs. The plaintiff also walked across a raised concrete area with steps leading up to it, across a covered walkway, across an asphalt road surface, again onto a concrete area and again across a roadway before mounting the painted kerb onto the walkway from which he fell[65];
[65]These matters emerge from the View Video.
(b) The walkway was visible for some distance on the route the plaintiff took to reach it,;
(c) The Plaintiff was aware of vehicles driving on his right as he walked along the walkway[66];
[66]T.67.15-19.
(d) The kerb of the walkway from which the Plaintiff fell was painted, albeit in a somewhat degraded state;
(e) Although, currently, the edge of that walkway is painted quite vividly, as one approaches Evans Street the paint is not particularly visible (see View Video, 11.30-11.55); this is consistent with the scene as depicted in the photographs forming part of Exhibit N at PCB 103, 104. This contrasts with its visibility when looking directly down at the paint, when standing in the area of the fall;
(f) As the plaintiff walked along the subject path, he passed a number of clearly visible signs highlighting the fact that the conditions changed ahead[67];
[67]These matters emerge from the View Video.
(g) There is marked contrast between the pale colour of the concrete surface of the subject path, and the dark hot mix immediately beyond it in Evans Street[68]; and
[68]These matters emerge from the View Video.
(h) The plaintiff was looking straight ahead at all times[69].
[69]T.69.13-22, T.263.7-9, T263.18-20.
2.The plaintiff was asked whether, at the time of the accident, he would have seen the paint (and, presumably, thus discerned the edge of the walkway) if it had been painted as it is now. The initial question and response were:
‘If the state of the paint at the time of your accident was the same as was today, as you saw it today, would you have observed it as you were walking along the walkway? – No.’
3.It is submitted that this question was completely clear, as was the answer. The plaintiff’s subsequent explanation that he had not understood the question[70] is unconvincing. The plaintiff reiterated several times (see references above) that he was looking straight ahead at all times. Ultimately, the plaintiff's evidence was that he would not have seen the paint, even if it was as vivid as it is now: see T.263-12-17, T.263.24-27.
[70]T.263.31-264.9
B. Breach of statutory duty (Wrongs Act)
4.The defendant says that the plaintiff's cause of action under Part IIA of the Wrongs Act is not maintainable on the basis that the Supreme Court has held that it does not create a separate right to damages: Victorian Workcover Authority v Jones Lang LaSalle (Vic) Pty Ltd.[71]
[71][2012] VSC 412 at paragraph 5.
C. Negligence
Duty of care
5.The defendant concedes that, as an occupier of the premises, it owed Stallard a duty of care to ensure that he was not injured by reason of the state of the premises or anything done, or not done, in relation to the state of the premises.
6.The defendant did not have a duty to prevent injury: cf. RTA (NSW) v Dederer.[72]
[72][2007] HCA 42; 234 CLR 330 at [51] per Gummow, J.
Breach of duty
7.The kerb may have originally been painted for a number of reasons: cosmetic purposes, or to alert drivers entering the carpark of the presence of the path, or perhaps to alert pedestrians, or perhaps for some other reason. If it was originally painted to alert pedestrians, that still does not mean that it was incumbent on the defendant to paint the kerb (or to keep the paint in good condition). Bainbridge v James & Ors.[73] establishes that determination of the existence of a risk, and of a reasonable response to it, is measured objectively, not by reference to the defendant’s subjective assessment. This was set out by Harper JA in the following passage:
[73][2013] VSCA 12 at [16].
‘… the evaluation of risk, including its foreseeability, is a matter of objective assessment. The fact that someone who is unusually risk-adverse provides his or her employees, or those who come upon his or her premises, with protections against a risk that is on an objective assessment far-fetched or fanciful, cannot transform that risk into something more real, or create a duty of care where, objectively, no reasonably foreseeable risk exists. In other words, the existence or otherwise of a reasonably foreseeable risk cannot be determined by having regard to what the appellant’s employers, or the owner of the centre, subjectively thought.’.
8.Essentially, the Plaintiff relies upon the fact that the kerb had been previously painted, in order to establish that painting it (and maintaining the paint) was necessary. This is precisely the type of reasoning criticised in the above passage.
9.An objective view of this kerb at the time of the plaintiff's accident would establish that there was no requirement to paint it on the basis that:
(a) there was no known history of falls in this area between 2003 and December 2009. Indeed, there has only been one fall from the walkway since the plaintiff's accident. This occurred at the other end of the walkway and on a different structural layout.[74] The lack of known falls is a decisive factor: see Raciti v Wadren Pty. Ltd.[75];
[74]T.273.11-27.
[75][2006] VSCA 132 per Nettle, JA at [19], Ashley, JA at [59].
(b) the kerb from which the plaintiff fell was of a type which exists in vast numbers across Melbourne – usually in an unpainted state. There was nothing untoward about the kerb which had ever called for it to be painted; and
(c) in the area where the plaintiff fell, the contrasting colours of the path and the adjacent footpath created additional ‘visual cues’ to that already provided by the (albeit deteriorated) yellow paint.
10.The fact that bright yellow paint makes the kerb particularly vivid to a person looking directly at it is of no moment. It was not necessary for the defendant to so paint it: the defendant’s duty is not one of perfection.
11.It is essential, in the defendant’s submission, to avoid the trap of considering the matter with hindsight. This was emphasized in Neindorf v Junkovic[76], where the High Court said the following[77] -
[76][2005] HCA 75; 222 ALR 631.
[77]Hayne, JA at [93].
‘This inquiry about what would have been reasonable and practicable is not to be undertaken in hindsight. Nor is it to be confined to what could have been done to eliminate, reduce or warn against the danger. Asking what could have been done will reveal what was practicable. It is necessary to ask also: would it have been reasonable for the occupier to take those measures?’
12.This passage is particularly apposite in the present case, where a view, conducted in hindsight, revealed the vivid outlining of the kerb, although subject to the comments noted above at paragraph 1(c).
13.Insofar as the plaintiff relies upon the ‘Wyong/Shirt calculus’[78], that calculus commences with the requirement that:
[78]Wyong Shire Council v Shirt [1980] HCA 12, 146 CLR 40, particularly per Mason, J. at [13] – [15].
‘In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff.’
14.The presence of the kerb, highly visible against the dark background of the hot mix, did not involve a foreseeable risk of injury, nor had such risk previously materialised. The risk was farfetched or fanciful, not real, as evidenced by the lack of history of falls.
Causation
15.Section 51 of the Wrongs Act enshrines the “but for” test of causation[79]. The plaintiff’s evidence regarding whether he would have seen the walkway had it been painted as it is now is discussed above. This is inadequate evidence on which to found a finding that he would have seen the footpath had it been so painted. This particularly so given the matters described at paragraph 1(c) above.
[79]Wallace v Kam [2013] HCA 19; 250 CLR 375, and Powney v Kerang & District Health [2014] VSCA 221 at [71].
16.The defendant therefore submits that, even if it breached its duty of care in failing to highlight the edge of the kerb with fresh paint, the plaintiff has not provided evidence which could satisfy the court that, but for such a breach of duty, the accident would not have occurred.
D. Quantum
17.If the plaintiff’s damages fall to be assessed, the defendant has agreed special damages in a total sum of $15,000, leaving only the question of pain and suffering damages to be assessed. In this regard, the defendant notes:
(a) The plaintiff suffered a full thickness tear of the supraspinatus and infraspinatus tendons[80];
[80]Exhibit G.
(b) The plaintiff used a sling for approximately 9 months[81];
[81]T.56.15-16.
(c) The plaintiff had approximately 20 sessions of physiotherapy[82], which made the condition of his right shoulder “easier”[83];
(d) The plaintiff has lost a “little bit” of strength in the right arm[84];
(e) The plaintiff’s only current treatment is the use of Panadol[85]; and
(f) The occasions on which the plaintiff gets pain in his right shoulder are “very rare[86].
18.The defendant concedes that the plaintiff has had his enjoyment of fishing, golf and swimming interfered with.
19.The plaintiff was born 10 October 1944 and was, thus, 65 at the time of the injury, and is now aged 70.
20.In Krasser v Adecco Holdings Pty. Ltd. & Anor.[87], Judge Wodak assessed damages for a plaintiff who had suffered a complete tear of the right shoulder rotator cuff tendon, which had been surgically repaired but who had significant ongoing symptoms. He had another serious injury to his chest and sternum. General damages were assessed at $85,000. In Ventrice v Joneal Pty. Ltd.[88], Judge Davis assessed damages for a right shoulder injury (albeit with some pre-existing minor problems) and a lower back injury at $45,000. In Ascher v State of Victoria[89], Judge O’Neill assessed pain and suffering damages for a plaintiff, aged 52 at the time of injury, who suffered injuries to her cervical and lumbar spines, right shoulder including arthroscopic surgery but with ongoing pain, and an adjustment disorder, at $130,000. In Sutton v Victorian Alps Wine Co. Pty. Ltd.[90], Judge Dyer assessed damages for a very severe right shoulder injury, suffered by a “relatively young man” (age not identified) at $150,000.
That plaintiff had had two operations, three injections, a change of occupation, and was unable to continue his occupation and thus had to accept less rewarding employment.
21.For completeness, the defendant refers to the decision of McDonald v Lodden Malley (sic) Housing Services Ltd.[91] in which damages for an injury to the left shoulder were assessed at $147,177.25; however, the circumstances of that case were very different in that the plaintiff had previously sustained very serious injuries, which meant that the consequences of the shoulder injury were far greater than would normally have been the case.
22.In the light of these decisions – which are comprehensive summary of all recent decisions which the defendant has located dealing with the assessment of damages in Victoria for similar injuries – it is submitted that the range of damages in the present case ought to be of the order of $50,000 to $75,000 given that the plaintiff has relatively minimal ongoing symptoms and has had little treatment.”
[82]T.54.23-27.
[83]T.54.28-29.
[84]T.56.29-31.
[85]T.60.26-29.
[86]T.58.12.
[87][2003] VCC 31.
[88][2009] VCC 463.
[89][2013] VCC 249.
[90][2014] VCC 2183.
[91][2004] VCC 35.
Determination of the issues
(1) Duty of care
75 As I mentioned earlier, the defendant concedes that, as occupier, it owed the plaintiff a duty of care, as described above.
76 Accordingly, I am satisfied that this element has been met.
(2) Breach of duty
77 In the Further Amended Statement of Claim dated 20 February 2015, the plaintiff alleges the following particulars of negligence:
“(a)failed to erect or install any signs alerting pedestrians to the presence of the height differential, warning pedestrians to mind their step or otherwise warning pedestrians of the risk of injury;
(b)permitted the yellow paint to be substantially worn away thereby significantly diminishing its capacity to serve as a visual cue alerting pedestrians to the height differential;
(c)failed to reapply the yellow paint to the walkway as needed and when it knew or ought to have known that the yellow paint was substantially worn away;
(d)failed to install or apply any alternative visual cue in order to alert pedestrians to the height differential and the consequential risk of injury;
(e)failed to perform any or any adequate inspection of the walkway and the height differential so as to ensure that same was safe and did not pose a foreseeable risk of injury to pedestrians;
(f)permitted or caused the walkway to be constructed in a manner that created the height differential and thereby created a foreseeable risk of injury to pedestrians using the walkway;
(g)failed to repair or rectify the walkway so as to eliminate the height differential and create a continuous pedestrian surface for persons walking from the walkway onto the footpath;
(h)by reason of the walkway’s design and construction, created a step or height differential in a place where pedestrians would not ordinarily expect one to exist and then failed to take any or any reasonable steps to alert pedestrians to the existence of same;
(i)failed to perform any or any adequate risk assessment of the walkway and the height differential in order to identify and respond to foreseeable risks of injury present upon the premises;
Repainting the edge in fresh yellow paint
106 The real issue, so far as causation is concerned, is the state of the yellow paint at the kerb’s edge of the walkway and whether the plaintiff would have done anything different had it been more prominent.
107 Mr Brett submits that a fair reading of the plaintiff’s evidence is that bright yellow paint would not have made a difference, since the plaintiff was not looking where he was going and he would not have seen it even if painted a vivid yellow.
108 On the other hand, Mr Smith submits that the plaintiff’s “unchallenged”[108] evidence is that he would have seen the paint if as bright as on the day of the view. Had he seen it, it would have alerted him to “danger” and he would have stepped down safely from the walkway. Mr Smith submits that any contrary version given by the plaintiff was the result of confusion about the questioning and should be disregarded.
[108]Exhibit Q, paragraph 6 particularly subparagraphs (vii), (viii) and (ix)
109 If Mr Brett’s interpretation of the evidence is correct, then the application of bright paint would have made no difference to the outcome, since the plaintiff would not have seen it and he would not have altered his conduct. On that account, the ‘but for’ test is not established, and the element of causation is not proved. However, If I accept Mr Smith’s interpretation as more likely, the element of causation might be satisfied.
110 I do not agree with Mr Smith’s submission that the plaintiff’s version about whether he would have seen bright paint and whether he would have modified his movements was not challenged. It must be remembered that Mr Hanson first introduced the subject in cross-examination. It appears that the one who “challenged” the evidence was Mr Smith, since he was the questioner who produced this evidence the same day as the view was conducted on 24 February 2015:
Q:“… you were asked a question by Mr Hanson when you were being cross-examined about whether you’d seen the yellow paint on the footpath at the time that you were walking immediately before your accident and you said that you didn’t. Do you recall that?---
A:Yes, I do.
Q:You attended the view today?---
A:Yes, I did.
Q:And you saw the state of the paint on the edge of the footpath today?---
A:Yes.
Q:If the state of the paint at the time of your accident was the same as it was today, as you saw it today, would you have observed it as you were walking along the walkway?---
A:No.”[109]
[109]T230 – T231
111 Apparently, still unsatisfied with his own witness’s evidence, over a month later, when the case resumed, Mr Smith tackled the subject again, this time producing an inconsistent account:
Q:“Do you remember the state of the paint, the yellow paint, on the corner of the kerb of the walkway – what’s been described as the walkway? Do you understand?---
A:Yes.
Q:Have you got in your mind what it is I’m asking you to think about? What the paint looked like on the kerb corner of the walkway when you went and had the view about two months ago?---
A:It was newly painted.
Q:So just have that in your mind. So that’s on the one hand. On the other hand I want you to think about the state of the paint on the corner of the kerb as it was at the time you had your accident back in December 2009. Do you understand?---
A:Yes.
Q:So on the one hand you’ve got the paint as it was in December 2009, on the other hand you’ve got the paint as it was in February 2015 when you saw it?---
A:Yes.
Q:If the paint in December 2009 had been in the same state as it was in February 2015, would you have seen that yellow paint marking the corner of the walkway?---
A:Yes, I would have seen that.
Q:And having seen that yellow paint on the corner of the walkway, what, if anything, would you have done differently as you walked along the walkway approaching the point where the walkway meets Evan Street, the black hotmix area?---
A:Sorry, could you repeat that question.
Q:If you had seen the yellow paint marking the corner of the kerb in 2009, so at the time you had your accident - if you’d seen that yellow paint there, what, if anything, would you have done differently when you walked from the walkway onto the black hotmix on Evan Street?---
A:I would have stepped down. Is that correct, the answer to your ‑ ‑ ‑
Q: You would have stepped down. Why ‑ ‑ ‑”
HER HONOUR:
Q: “No, he asked, ‘Is that what you’re asking me?’”
MR SMITH:
Q:“Yes, that’s what I’m asking you. What would you have done differently?---
A:I would have stepped down, seeing the yellow paint. They’re [scil. there’s] new paint.
Q:Why is it that the presence of the yellow paint would have caused you to step down?---
A:It would have told me there was, you know, danger.”[110]
[110]T258 – T259
112 However, when further cross-examined by Mr Brett, it would appear that the plaintiff adopted his earlier version as accurate:
Q:“The questions that my learned friend just asked you a moment ago are very similar to some questions that you were asked back in February. Do you remember going on the view in February?---
A:Yes, in February.
Q:And then later that day the court resumed in this courtroom?---
A:Yes, that’s correct.
Q:And you gave some further evidence?---
A:Yes. Sorry, I ‑ ‑ ‑
Q:There was just a few questions asked by Mr Smith?---
A:Sorry?
Q:It was just a few questions that were asked by Mr Smith?---
A:Yes, some questions were asked.
Q:I will read the questions to you. First of all, you were asked, ‘You attended the view today?’ and you answered, ‘Yes, I did.’ You were asked, ‘And you saw the state of the paint on the edge of the footpath today?’ and you answered, ‘Yes’?---
A:Yes.
Q:Do you recall that?---
A:Yes.
Q:And you were then asked, ‘If the state of the paint at the time of your accident was the same as it was today, as you saw it today, would you have observed it as you were walking along the walkway?’ and you answered, ‘No’?---
A:I wasn’t clear of the question.
Q:What didn't you understand about it?---
A:When I had my accident I was looking straight ahead what’s in front of me and - or to my left and then I stepped into mid-air.
Q:I understand that. That was the point, wasn’t it? When you had your accident you were looking straight ahead of you?---
A:Yes.
Q:And you didn’t notice anything about the state of the paint?---
A:No.
Q:And that’s why when you were asked, ‘If the state of the paint at the time of your accident was the same as it was today, as you saw it today, would you have observed it as you were walking along the roadway?’ and you said, ‘No.’ That was your answer then?---
A:Yes.
Q:And that’s correct, isn’t it?---
A:Yes.
Q:You wouldn’t have seen it no matter how bright it was because you were looking straight ahead?---
A:I was looking straight ahead.
Q:So you wouldn’t have seen it no matter how bright it was?---
A:I would have seen it if it was painted when I had my accident.
Q:That’s not what you said before. When you were asked that a month or so ago, you answered that you wouldn’t have seen it?---
A:M’mm.
Q:That was true, wasn’t it?---
A:Yes.”[111]
[111]T262 – T263
113 Having a third go at it, Mr Smith further re-examined to the effect that it was his own questions in February that seemed to produce confusion in the mind of his client:
Q:“… you were just asked a question by Mr Brett about the evidence that you'd given back in February and you said no, you wouldn't have seen the difference in the paint. And your answer was you were confused about the question?---
A:I was confused about the questioning.
Q:Back when it was asked back in February, what was your confusion about the question?---
A:The confusion was I suppose is this painted or unpainted? I'm just not sure of the question.”[112]
[112]T263 – T264
114 The plaintiff has given two versions, and this may serve to undermine his credibility as a witness. I think the most probable account is the one that the plaintiff gave in a spontaneous and forthright manner in response to questions asked of him by his own counsel immediately after the view. This account was consistent with the answers that the plaintiff gave in response to the questions Mr Hanson asked of him in cross-examination. It must be remembered that, as an agreed matter of fact, there was yellow paint marking the edge of the walkway proximate to where the plaintiff apparently mis-stepped, albeit the paint had deteriorated to the condition shown in the photographs. Exhibit E depicts the state of the paint very soon after the incident. I have no evidence about why the plaintiff failed to observe any of that paint and where the tipping point is between “now you see it, now you don’t”.
115 The transcript records that when Mr Smith first re-examined on the subject of the yellow paint and whether the plaintiff would have seen it if it were as bright as on the day of the view, Mr Hanson objected to the speculative nature of the questions, although they had already been asked and answered. When asked by me to respond to Mr Hanson’s submission, Mr Smith commended Mr Hanson’s common sense and elected to not “press the question”.[113] Yet, over a month later, that is exactly what Mr Smith did, presumably wanting to clarify the witness’s answers to his own questions with which he was previously satisfied. Yet, after the attempt at clarification, which produced evidence contradicting the first version, when the witness was confronted with his earlier testimony, the witness adopted his first version. Even then, when yet further re-examined, an additional element of confusion was introduced by Mr Smith.
[113]T 231 – T233
116 There are other circumstances that inform my conclusion:
(a) The plaintiff did not observe any yellow paint on any part of the walkway although there was some paint there (as depicted). Yet he must have observed the walkway as he approached it from the carpark before stepping onto it;
(b) The yellow paint ran along the entire edge of the walkway where it abutted the driveway, but the plaintiff did not observe any portion of the walkway’s edge covered in yellow paint;
(c) The walkway was relatively narrow (960 mm wide)[114], and extended the entire length of the shop;
[114]Exhibit O
(d) The plaintiff was aware that the walkway was elevated since he stepped up onto it;
(e) The carpark driveway cut across the footpath of Evans Street to allow vehicular traffic to enter and exit from Evans street. The driveway was below the height of the walkway and joined Evans Street;
(f) The plaintiff failed to observe any signs on the shop wall alongside the walkway, even though he must have walked right past them if he reached the end of the walkway. There is no suggestion that the condition of these signs had deteriorated such as to obscure them from view or make them less visible;[115]
[115]Exhibit E, page 194 depicts the back of the signs mounted on the shop wall, facing the direction that the plaintiff travelled
(g) The plaintiff failed to notice that the footpath colour (referred to by the parties as the “hotmix”) on Evans Street was different to that on the walkway. The two colours were hard up against each other where the walkway and the footpath met and provided a visual contrast between the two surfaces;
(h) The plaintiff did not observe the tactile ground surface tiles on the Evans Street footpath immediately ahead of the ramp and the step proximate to the walkway edge;
(i) The plaintiff is not clear about where, precisely, on the walkway he took his last step – he is not sure whether he stepped on any part of the ramp (which he had not seen) before he fell;
(j) Neither the physical features of the walkway nor the yellow paint along the driveway edge were such as to obscure it from the view of drivers using the adjacent driveway. The paint was not so dilapidated that it caused any driver exiting the carpark to collide with the walkway or mount it;[116] and
(k) In the period 2003 to the date of the trial, there is no record of any other person coming to grief in the same location where the plaintiff fell either because of the state of the paint, or at all.
[116]There is no incident report of complaint that any driver collided with the walkway or mounted it. Nor was any such suggestion made in cross-examination of Ms Harding.
117 The plaintiff’s first version is more consistent with these undisputed facts. These circumstances combine to persuade me that the plaintiff was not paying much attention as he headed up the walkway towards Evans Street. He missed every visual cue along the way, and I consider that the application of fresh yellow paint to replenish the deteriorated, yet visible, yellow paint would have made no difference.
118 Even if I were to reject the plaintiff’s first version, I would not be compelled to accept the second. In the circumstances, I have found the first version to be the most probable, but I wish to make it clear that even if I were not so satisfied, I would not be satisfied that the second version is probably true or accurate. In other words, I would not be satisfied that on this issue the plaintiff has discharged the burden of proof.
Conclusions regarding the particulars of negligence alleged
119 I shall now turn to each of the particulars of negligence alleged:
“(a) failed to erect or install any signs alerting pedestrians to the presence of the height differential, warning pedestrians to mind their step or otherwise warning pedestrians of the risk of injury”
120 Even if this alleged failure constituted a breach of the duty of care (and I am not satisfied that it does), it was not a cause of the plaintiff’s injury, loss and damage. The particular is not made out.
“(b)permitted the yellow paint to be substantially worn away, thereby significantly diminishing its capacity to serve as a visual cue alerting pedestrians to the height differential”
121 I am not satisfied that the paint had deteriorated so badly that it failed to serve as an adequate visual cue alerting the plaintiff of the drop in height between the edge of the walkway and the footpath below. Even if this alleged failure constituted a breach of the duty of care (and I am not satisfied that it does), it was not a cause of the plaintiff’s injury, loss and damage. The particular is not made out.
“(c)failed to re-apply the yellow paint to the walkway as needed and when it knew, or ought to have known, that the yellow paint was substantially worn away”
122 I repeat and adopt my conclusion to particular (b) above.
“(d)failed to install or apply any alternative visual cue in order to alert pedestrians to the height differential and the consequential risk of injury”
123 I am not satisfied that any such visual cue was necessary in all the circumstances. Even if this alleged failure constituted a breach of the duty of care (and I am not satisfied that it does), it was not a cause of the plaintiff’s injury, loss and damage. The particular is not made out.
“(e) failed to perform any, or any adequate inspection of the walkway and the height differential so as to ensure that same was safe and did not pose a foreseeable risk of injury to pedestrians”
124 There was no evidence that, at the relevant time, no such inspection was conducted. Moreover, as Mr Smith points out, the defendant admits that it painted the edge of the walkway to “alert pedestrians of its presence and the height difference of the footpath”.[117] The state of the paint at the time of the incident was adequate to serve as a visual cue and warning in all the circumstances. Even if this alleged failure constituted a breach of the duty of care (and I am not satisfied that it does), it was not a cause of the plaintiff’s injury, loss and damage. The particular is not made out.
“(f)permitted or caused the walkway to be constructed in a manner that created the height differential and thereby created a foreseeable risk of injury to pedestrians using the walkway”
[117]Exhibit F, interrogatory 10
125 I am not satisfied that in order to discharge the duty of care owed, the defendant was required to construct a path at the same height level as the footpath or driveway. Even if this alleged failure constituted a breach of the duty of care (and I am not satisfied that it does), it was not a cause of the plaintiff’s injury, loss and damage. The particular is not made out.
“(g)failed to repair or rectify the walkway so as to eliminate the height differential and create a continuous pedestrian surface for persons walking from the walkway onto the footpath”
126 I repeat and adopt my conclusion to particular (f) above.
“(h)by reason of the walkway’s design and construction, created a step or height differential in a place where pedestrians would not ordinarily expect one to exist and then failed to take any, or any reasonable steps to alert pedestrians to the existence of same”
127 I repeat and adopt my conclusion to particular (f) above.
“(i)failed to perform any, or any adequate risk assessment of the walkway and the height differential in order to identify and respond to foreseeable risks of injury present upon the premises”
128 I repeat and adopt my conclusion to particular (e) above.
“(j)failed to provide the plaintiff with a reasonably safe method of access and egress to and from the premises”
129 I am not satisfied that this particular is made out. The plaintiff’s is the only accident to be reported as having occurred in this area in the period 2003 to the date of discovery.[118] I am not satisfied that the area where the plaintiff fell constituted anything other than a reasonably safe method of accessing the footpath on Evans Street.
“(k)failed to exercise any or any reasonable care for the safety of the plaintiff whilst he was upon the premises”
[118]The only other reported incident occurred at the other end of the walkway and there is nothing to indicate that any negligence on the part of the defendant was implicated.
130 I am not satisfied that this “catch-all” particular is made out.
(4) Damages
131 The medical evidence is not disputed. Nor is the evidence regarding the impact of the plaintiff’s injury upon him challenged. However, in view of my findings that there is no negligence on the part of the defendant that was a cause of the plaintiff’s injury, loss and damage, I decline to assess a theoretical award of damages.
(5) Contributory negligence
132 The plaintiff was injured through no negligence on the part of the defendant. As I have stated, he was not looking where he was going, and no fresh coat of paint, warning sign or tactile surface tile would have made a difference to the outcome. Even if I am wrong, I would hold that the plaintiff failed to take reasonable care for his own safety and that this was the predominant (if not only) cause of his injury, loss and damage.
Conclusions and Orders
133 The plaintiff has failed to discharge the burden of establishing negligence on the part of the defendant. Accordingly, his claim for damages must be dismissed.
134 I shall hear the parties on the question of costs.
- - -
0
16
0