Stanoevski v The Owners of Stirling Village SP 11718
[2007] WADC 205
•22 NOVEMBER 2007
| JURISDICTION | : | DISTRICT COURT OF WESTERN AUSTRALIA IN CIVIL |
| LOCATION | : PERTH | ||
| CITATION |
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| CORAM | : SLEIGHT DCJ | ||
| HEARD |
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| DELIVERED |
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| FILE NO/S |
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| BETWEEN | : PAUL STANOEVSKI |
Plaintiff
AND
THE OWNERS OF STIRLING VILLAGE SP 11718
Defendant
Catchwords:
Negligence - Liability of shopping centre owners for injuries suffered by plaintiff who tripped over a chain barricading off a rear carpark after dark - Contributory negligence
Legislation:
Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947
Occupiers Liability Act 1985
[2007] WADC 205
Result:
Plaintiff's claim allowed subject to reduction of 20 per cent for contributory negligence
Representation:
Counsel:
| Plaintiff | : | Mr K S Pratt |
| Defendant | : | Mr D M G Burton |
Solicitors:
| Plaintiff | : | Trewin Norman & Co |
| Defendant | : | SRB Legal |
Case(s) referred to in judgment(s):
Australian Safeway Stores Pty Ltd v Zaluzna (1986-7) 162 CLR 479
Hackshaw v Shaw (1984) 155 CLR 614
Hanna-Pauley v AMP Shopping Centre [2007] WASCA 174
Homestyle Pty Ltd v Perrozzi (2007) 33 WAR 209
[2007] WADC 205
SLEIGHT DCJ
SLEIGHT DCJ: The plaintiff claims damages for personal injuries suffered in an accident on 31 October 2002 when the plaintiff tripped over a metal chain in a carpark at the rear of the Stirling Village Shopping Centre ("the Shopping Centre"). At the time of the accident the plaintiff was aged 16 (his date of birth being 13 December 1985). The defendant is a body corporate and at all material times was the occupier of the premises. The sole issue in the trial was that of liability.
Circumstances of accident
2 The Shopping Centre is situated on the corner of Cedric Street and
Sanderling Street, Stirling. The Shopping Centre is surrounded on all sides by a car park to which the public normally has free access. The front of the Shopping Centre faces towards Cedric Street and Sanderling Street.
At the rear of the Shopping Centre is a medical centre, structurally independent of the Shopping Centre and accessed from Sanderling Street.
4 The chain the plaintiff tripped over was attached to two bollards at
what is described in the pleadings as the entry and exist point to a parking area. One bollard was painted white and was situated at the rear of the main Shopping Centre complex (adjacent to the rear of a pharmacy) and the other bollard was painted yellow and was situated adjacent to the medical centre. There was a gap between the two bollards of approximately 8 metres (this is an estimate made from the photographs tendered into evidence). Each bollard is positioned near the kerbing on the edge of the car park area. The chain between the two bollards was meant to be hooked up each evening at about 6.45 pm. The chain was removed each morning so that during daylight hours the area between the two bollards was unrestricted. The chain had been painted white, but on the date of the accident had largely been stripped of any paint (due to contact with the ground when the chain was not being used) and was corroded.
5 The purpose of the chain between the yellow and white bollards was
to barricade off a rear car park area. A sign was positioned on top of the white bollard and read "Attention. This rear car park is closed by chain daily at 6.45 pm".
6 Attached to each bollard was a permanently positioned chain which
ran to a second bollard which was positioned up against the adjacent
building. This permanently positioned chain was painted white.
[2007] WADC 205
SLEIGHT DCJ
7 The night of the accident was Halloween night. The defendant
engaged security guards and arranged for Police to attend the Shopping Centre due to past disturbances by groups of young people at the Shopping Centre on Halloween night. There was evidence given at the trial that there were some disturbances at the Shopping Centre on the night of the accident, but there was no direct evidence that the plaintiff was involved.
8 A Mr Geralamo Maio, who owned and managed a Supa Valu
supermarket within the Shopping Centre, said in his evidence that some time between 6 pm and 6.45 pm on the night of the accident he placed the chain between the two bollards and placed on the chain six to seven white plastic bags. Further, he stated that between 7 pm and 7.15 pm he switched on a spotlight which was positioned over a loading bay at the rear of his store and this spotlight shone over the carpark towards the chain. The defendant contends that, because of the white paper bags attached to the chain and the spotlight, the chain was clearly visible.
9 The plaintiff's claim is that he was running home through the rear car
park area of the Shopping Centre at about 8.30 pm. At that time, he was in the company of a friend, Chris Steven Karapetkoff, then aged 19. The plaintiff says that there were no bags attached to the chain and the spotlight was not on. The plaintiff claims that the chain could not be seen and he tripped over it, suffering injuries.
10 Further, the plaintiff claims that after the accident and whilst he was
waiting for an ambulance, he observed the spotlight come on, a person wearing a white apron and white hat walk out from the rear of Mr Maio's shop premises. This person then walked back inside and then returned with plastic bags which he attached to the chain.
Accordingly the critical factual issues in this matter are:
(a) whether at the time of the accident the chain had attached to it white bags or whether these were placed on the chain by Mr Maio or some other person after the accident; and (b) whether at the time of the accident the spotlight over the loading bay at the rear of Mr Maio's store was on or whether it was switched on after the accident. 12 It is conceded by the defendant's counsel that if I find at the time of
the accident the bags were not attached to the chain and the spotlight was not on then the plaintiff would succeed subject to any adjustment for contributory negligence.
[2007] WADC 205
SLEIGHT DCJ
The pleadings
13 The plaintiff pleads that the defendant or in the alternative its
employees, agents and servants were negligent in that they placed a chain across an entry and exit to the premises which was unmarked and unlit. Further and in the alternative the plaintiff's injuries were caused by the defendant's breach of s 5 of the Occupiers Liability Act 1985 in that it failed as the occupier of the premises to take reasonable care to ensure that persons entering the premises, and in particular the plaintiff, would not suffer injury or damage by reason of a danger on the premises, namely the chain placed across the entry and exit point.
In an amended defence the defendant pleads as follows:
"… that the plaintiff was not running through the premises on his way home but was running away from Police and/or security as he was trespassing at the premises, was engaged in reckless and unlawful activities at the premises and was not authorised to be at the premises.
PARTICULARS OF TRESPASS AND UNLAWFUL
ACTIVITIES
a)
at the material time, the Plaintiff had no legitimate purpose for being on the premises;
b)
the material date was Halloween and the Plaintiff, together with other youths, was engaged in unlawful activities including throwing eggs at the premises and at passing traffic on Cedric Street;
c)
the Plaintiff was asked to leave the premises by a security guard engaged by the Defendant;
d)
the Plaintiff refused to leave the premises and the security guard contacted the Police to have the Plaintiff removed from the premises;
e)
the Defendant contacted the Police and the Police attended the premises;
f)
at the material time, the Plaintiff was running away from the Police and/or security guard engaged by the Defendant.
[2007] WADC 205
SLEIGHT DCJ
4. The Defendant says that if the Plaintiff sustained the injuries (which is denied) then the injuries were not caused by the negligence of the Defendant.
5. The Defendant says that as the Plaintiff was a trespasser it owed the Plaintiff a lesser duty of care and in any event discharged its duty of care to the Plaintiff and/or to any visitors attending the premises in that, at the time of the alleged incident:
a) immediately adjacent to the chain was an iridescent sign informing visitors to the premises that the area was chained and closed off daily at 6.45 pm; b) the chain was painted white; c) the bollards that supported the chain were painted white and yellow; d) the area in which the chain was situated was illuminated by a 1,000 watt spot light; e) the chain had 6 to 8 white plastic shopping bags hanging from it at various intervals along its length. 6. Further, or in the alternative, the Defendant says that if the Plaintiff was injured (which is denied) then the Plaintiff's injuries were solely caused or contributed to by the negligence of the Plaintiff.
PARTICULARS OF CONTRIBUTORY NEGLIGENCE
a)
The defendant repeats paragraphs 3(a) to (f) above;
b)
The Plaintiff was running away from Police and/or the Defendant's security guard and was not looking where he was running;
c)
The Plaintiff ought to have been walking not running;
[2007] WADC 205
SLEIGHT DCJ
d)
The Plaintiff ought to have observed the iridescent sign which was illuminated and informing visitors to the premises that the area was chained and closed off daily at 6.45pm;
e)
The Plaintiff ought to have observed the chain which was illuminated by a 1,000 watt spot light.
f)
The Plaintiff failed to keep a proper lookout and failed to take any or any adequate care for his own safety in the circumstances."
The law
15 There remains some uncertainty in Western Australia as to whether
there co-exists a common law duty of care of an occupier of premises and a duty of care under the Occupiers Liability Act 1985 (the Act) or whether the Act displaces the common law (see Homestyle Pty Ltd v Perrozzi (2007) 33 WAR 209). However, whatever might be the correct position, it is accepted by counsel in this case that there is no material difference between the duty of care and the standard of care at common law and under the Act. The same approach was recognised in Hanna-Pauley v AMP Shopping Centre [2007] WASCA 174 Buss JA at par 37. The overlap of the common law and any duty under the Act has arisen because the development of the common law in Australia has led to the abandonment of previously recognised special duties depending on whether a visitor to premises was an invitee, a licensee or a trespasser. It is now recognised in Australia that at common law there is a single duty of an occupier of premises to take reasonable care to avoid a foreseeable risk of injury to a visitor to the premises. In Australian Safeway Stores Pty Ltd v Zaluzna (1986-7) 162 CLR 479, Mason, Wilson, Deane and Dawson JJ at p 488 stated as follows:
"We think it is wholly consistent with the trend of recent decisions of this Court touching the law of negligence, both in this area of an occupier's liability towards entrants on his land and in the areas which were the subject of consideration in San Sebastian Pty Ltd v The Minister (45) and Cook v Cook (46), to simplify the operation of the law to accord with the statement of Deane J in Hackshaw (47):
'… it is not necessary, in an action in negligence against an occupier, to go through the procedure of considering whether either one or other or both of a special duty qua
[2007] WADC 205
SLEIGHT DCJ
occupier and an ordinary duty of care was owed. All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant's occupation of premises and the manner of the plaintiff's entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. A prerequisite of any such duty is that there be the necessary degree of proximity of relationship. The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member. The measure of the discharge of the duty is what a reasonable man would, in the circumstances, do by way of response to the foreseeable risk'."
16 This single duty of care at common law seems to coincide with the
single duty of care under s 5 of the Act. Section 5 of the Act provides as
follows:
"5. Duty of care of occupier
(1) Subject to subsections (2) and (3), the care which an occupier of premises is required by reason of the occupation or control of the premises to show towards a person entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible shall, except insofar as he is entitled to and does extend, restrict, modify or exclude by agreement or otherwise, his obligations towards that person, be such care as in all the circumstances of this case is reasonable to see that that person will not suffer injury or damage by reason of any such danger. (my emphasis) (2) The duty of care referred to in subsection (1) does not apply in respect of risks willingly assumed by the person entering on the premises but in that case the occupier of premises owes a duty to the person not to create a danger with the deliberate intent of doing harm or damage to the person or
[2007] WADC 205
SLEIGHT DCJ
his property and not to act with reckless disregard
of the presence of the person or his property.
(3) A person who is on premises with the intention of committing, or in the commission of, an offence punishable by imprisonment is owed only the duty of care referred to in subsection (2). (4) Without restricting the generality of subsection (1), in determining whether an occupier of premises has discharged his duty of care, 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 of premises 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; and (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."
The defendant in this matter has not pleaded and does not contend that the plaintiff falls within s 5(3) of the Act.
18 However, the defendant does contend that the plaintiff was a
trespasser. It is not correct that a lesser duty of care applies to a trespasser as pleaded by the defendant in par 5 of the amended defence. However,
[2007] WADC 205
SLEIGHT DCJ
the relevance of a visitor being a trespasser was explained in the decision of Deane J in Hackshaw v Shaw (1984) 155 CLR 614 at p 663 as follows:
"When the visitor is on the land as a trespasser, the mere relationship of occupier and trespasser which the trespasser has imposed upon the occupier will not satisfy the requirement of proximity. Something more will be required. The additional factor or combination of factors which may, as a matter of law, supply the requisite degree of proximity or give rise to a reasonably foreseeable risk of relevant injury are incapable of being exhaustively defined or identified. At the least they will include either knowledge of the actual or likely presence of a trespasser or reasonable foreseeability of a real risk of such presence."
19 As will be evident from my findings later in this decision, I find that
the plaintiff was not a trespasser but even if he was, then the defendant knew of the likely presence of the plaintiff (or some other pedestrian) or it was reasonably foreseeable of a real risk of such a presence.
The evidence
20 The plaintiff's evidence was that on 31 October 2002 he left his home
with a friend, Chris Stephen Karapetkoff, sometime between 7 pm and 7.30 pm. They walked to a friend's house, a Robert Kolevski, but no-one was home.
21 They then started walking back towards the Stirling Village
Shopping Centre. At about 7.42 pm the plaintiff's father telephoned the mobile phone of Mr Karapetkoff and conveyed a message to the plaintiff asking him to come home as it was getting late as the plaintiff had school the next day. The plaintiff said that as they were walking towards the Shopping Centre they met up with about five school friends of the plaintiff and stopped to talk to them. He was not sure how long they stopped and talked to this group of friends.
22 After talking to this group of friends the plaintiff said he and
Mr Karapetkoff continued on to the Shopping Centre which they reached some time between 8.00 and 8.30 pm. Because it was getting late he and Mr Karapetkoff started jogging at a medium pace and took a shortcut home by cutting through a car park at the rear of the Shopping Centre. In doing so they came from the direction of Sanderling Street and passed between the main Shopping Centre complex and the medical centre.
[2007] WADC 205
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Whilst jogging through this area he collided with something which caused him to fall over.
24 He said that there was no artificial lighting in the area and the area
was dark. He did not see what he collided with. As a result of the collision he fell over on to his head and finished up on his back. He said his friend, Mr Karapetkoff, also complained of colliding with something.
25 He was helped to the side of the car park and was positioned on the
edge of a park area. About 5 to 10 minutes later two police officers had arrived on horseback. An ambulance was called and subsequently attended and the plaintiff was taken to hospital.
26 The plaintiff said he suffered injuries to his thigh where he made
contact with the chain over which he had fallen. Photographs tendered
into evidence confirmed an injury to his right upper thigh.27 The plaintiff said that after the police arrived and while he was
waiting for an ambulance, he observed a light come on at the rear of the Supa Valu Shopping Centre near the loading bay. He then saw a person come out of the rear of the Supa Valu store wearing a white apron and a white hat. He then saw this person go back inside the Shopping Centre and then emerge with plastic bags which were then attached to the chain over which the plaintiff had fallen. He said that he mentioned these observations to his father the next morning when he and his father attended the scene to take photographs.
The plaintiff denied under cross-examination of being involved in any antisocial activities or with groups of youths at the Shopping Centre.
He did not see the sign on top of the white bollard advising of the closing of the carpark.
30 He denied that a spotlight over the loading bay at the rear of the Supa
Valu store was on at the time of the accident. He also denied that a security light was on at the rear of the line of shops and adjacent to where the chain was stretched over the carpark. He also denied that a fluorescent light was on under the eave of the medical centre to the left- hand side of where the chain stretched across the carpark.
He denied that at the time of the collision the chain had white plastic bags attached to it.
[2007] WADC 205
SLEIGHT DCJ
32 Mr Karapetkoff's evidence largely coincided with the plaintiff's evidence as to their movements before the accident. He confirmed that some time before 8 pm and before they got to the Shopping Centre he received a call from the plaintiff's father telling them not to be late. He also confirmed they met a group of friends of the plaintiff's before getting to the Shopping Centre. He could not recall how long they spoke to the group and what time he and the plaintiff arrived at the Shopping Centre.
33 He said they were jogging side by side through the car park area at
the rear of the Shopping Centre, passing between the main Shopping Centre building and the medical centre. He said as they were jogging the plaintiff suddenly fell and then he also fell. He said his leg was in pain. He tried to find out what they had hit and then he was able to see at close quarters the chain which he and the plaintiff had collided with. He indicated that the chain made contact with his upper thigh.
34 He said the area where the chain was located was dark at the time
and the chain could not be seen as they approached it. He denied under cross-examination that there was a spotlight on over the loading bay outside the Supa Valu shop premises and which shone back on to the chain.
35 He stated that after he fell he got up and helped the plaintiff to a park
area adjacent to the car park. He said that the police arrived on horseback from the park area. He then recalled a general commotion occurring. He did not recall any lights being switched on after the incident. Under cross-examination he was adamant that the spotlight was not on at the time of the accident. Strangely, he was not cross-examined and nor did he give any evidence as to whether he saw any bags attached to the chain before or after the accident.
36 The plaintiff also called two persons who were on police patrol that
night. Senior Constable Rowe gave evidence that there were four officers on duty that night on horseback in the area of the Shopping Centre. This was to provide security to the Shopping Centre in view of concerns about unruly behaviour by youths on Halloween night. They arrived at the Shopping Centre at about 5.30 pm. She said that some time after 9 o'clock she and a Constable Northrope, had been patrolling together an adjacent park area. They were making there way back through the park to the shopping centre when they came across the plaintiff on the ground. She did not have a very good memory of that night and was not able to say whether there was a light on above the loading bay at the rear of the Supa Valu store when they came upon the injured plaintiff. She
[2007] WADC 205
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recalled at some time earlier that night noticing a light at the rear of the
Shopping Centre but could not recall exactly where it was located.37 Constable Northrope gave evidence that his recollection was that when the plaintiff was found the lighting was not very good and he remembered using his torch.
38 After the plaintiff was taken away in an ambulance he and
Constable Rowe returned on horseback to a police trailer and in doing so passed through the area where the accident occurred. He recalled seeing the chain but could not recall the extent that illumination existed in the area but said it was sufficient for him to see the chain without using his torch. He did not recall seeing any bags attached to the chain.
39 Both Constable Rowe and Northrope stated they did not observe any
unlawful activities by groups of youths that night, although Constable Northrope stated he saw some evidence of broken eggs in Cedric Street adjacent to the Shopping Centre.
40 The plaintiff's father, Mr Zoran Stanoevski was called to give evidence. He confirmed that he telephoned Mr Karapetkoff at 7.42 pm and told the boys not to be too late. The time of this telephone call was confirmed by telephone records. Mr Stanoevski said that he later received a telephone call from Mr Karapetkoff advising him of the accident and he attended the Shopping Centre. He was not sure what time he arrived at the Shopping Centre. At the time he arrived the plaintiff was being placed in an ambulance.
41 The next morning he attended the scene of the accident and took
photographs. Significantly he was not asked in cross-examination whether he had a conversation with the plaintiff in which the plaintiff alleged he mentioned that he had observed a person attach plastic bags to the chain after the accident.
42 The defendant called a number of witnesses at the trial. The first and
main witness was Mr Geralamo Maio. Mr Maio is one of the owners of the Stirling Village Shopping Centre, being the proprietor and manager of a supermarket which as at the date of the accident was trading as Supa Valu (but now trading as IGA).
43 Mr Maio gave evidence of problems he and other owners of the
Shopping Centre had experienced with youths at the Shopping Centre over a number of years leading up to the date of the accident.
[2007] WADC 205
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44 In September 1991 he moved a motion at an extraordinary general
meeting of the defendant to install bollards and a chain between the Shopping Centre premises at the rear of a pharmacy and the separate building containing the medical centre "as a result of young people doing drag races through the area from 4.30 pm onwards". The motion was carried and the bollards and chain were installed together with a sign advising of the closing off of the area at 6.30 pm.
45 Mr Maio's evidence also included a description of problems he
personally experienced with youths in the Shopping Centre and problems experienced with youths at the Shopping Centre on Halloween night. He stated that, as the owner of the major shop in the Shopping Centre, he felt responsible for maintaining standards of the Shopping Centre. He described how on occasions force had been used to remove what he described in his evidence as "young little louts". He said that the problem of unruly youths on Halloween night had escalated over the years and was particularly severe on the Halloween night in 2001, the year before the accident. He stated that on Halloween night for some years prior to and including the night of the accident the owners of the Shopping Centre had employed three to five private security persons and also notified the police who provided assistance.
46 On the night of 31 October 2002 Mr Maio stated that he was working
at the Shopping Centre. He said he put the chain across between the bollards, closing off the carpark area between 6.00 and 6.45 pm. At that time he attached plastic bags to the chain. He stated that he returned to the rear of his shop at about 7 pm to 7.15 pm and switched a spotlight on over the rear loading bay. The spotlight shone back in the direction of the chain. He explained that the light normally operates on a sensor device only but on this evening he switched it on so that it illuminated the area where the chain had been erected. He denied switching the light on and placing the bags on the chain after the accident.
47 He denied that either he or his son (with whom he was working that
night) wore a white apron and white hat. He said the store uniform consisted of a red T-shirt. He denied that at any time had any person in the building worn a white apron and white hat.
48 He stated that he painted the chain white approximately once every
three months but agreed that the paint between the bollards deteriorated as a result of contact with the ground when the chain was removed each day. He acknowledged that at the time of the accident the white paint had largely worn off.
[2007] WADC 205
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49 He stated that there was a mercury vapour security light at the rear of
the pharmacy shop which was adjacent to the chain, but he was not sure if
at the time of the accident it was switched on.50 He said there was also a fluorescent light under the eave of the
medical centre which generally came on at 5.30 pm to 6 pm. He could not recall if this light was on when he erected the chain, but he said that it was on when he attended the scene after the plaintiff's accident.
51 He said that at approximately 8.30 pm a hairdresser in the Shopping
Centre, Mr Dominic Calebro, knocked on the door of Mr Maio's shop and told Mr Maio a youth had been injured. Mr Maio said he exited the Shopping Centre from the front entrance and walked around to the rear of the Shopping Centre, passing through the area where the chain stretched across between the Shopping Centre and the medical centre. He said the chain was clearly visible "like a Christmas tree". He said he could see the plastic bags on the chain, and the spotlight and the light from the medical centre were shining on the chain. He said he observed two youths near the park area adjacent to the carpark. He said the police and the security people then arrived.
52 He stated that earlier in the evening he had met with security people
at about 8 o'clock and he had arranged using a forklift which was located at the rear of his store to move large Cleanaway bins to block off entrances to the carpark from Sanderling Street.
53 Under cross-examination Mr Maio stated that he had not previously
put the spotlight on manually at night and relied upon it to come on by the sensor device. The night of the accident was the first night he had switched it on so that it operated without the use of sensors. He also stated that he had not previous to the night of the accident placed bags on the chain. This was notwithstanding that in previous years he was aware of possible groups of youths being in the area on Halloween night. He stated that he was aware that the chain was not 100 per cent white on this occasion and thought that, in the best interests of safety and knowing the problems they had had with previous Halloween nights, it was best to take the extra precautionary measure of attaching bags on the chain and switching on the light.
54 He stated that the police arrived about 10 seconds after he arrived at
the chain after receiving notification of the accident. The security guards arrived about five seconds later. He directed the police and the security guards to the plaintiff on the ground.
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55 The defendant also called another shop owner, Mr Calebro. He owned a hairdressing salon. His evidence was that he left his shop at about 5.30 pm on the date of the accident and went home for dinner. He returned at about 8 o'clock to the Shopping Centre to stand outside the front of his shop due to security concerns as a result of unruly behaviour on previous Halloween nights. He stated that he observed a large group of youths throwing eggs in the carpark and at passing traffic in Cedric Street.
56 He stated that at one stage in the evening a security guard came to
him and told him there had been an accident at the rear of the Shopping Centre. He said he went around to where the chain was located, running between the rear of the Shopping Centre and the medical centre. He said he observed the chain had attached to it six to eight bags. He said that there was a light on at the rear of the pharmacy, there was a light on under the eave of the medical centre and there was a spotlight on at the rear of the Supa Valu store.
57 He observed an injured youth on the ground near the park area. He
said the police were there, as were security guards. He said that he returned to his shop and spoke to Mr Maio and told him someone had been injured. Under cross-examination he thought that he went to investigate the accident at the rear of the store at about 9 pm.
58 The defendant called a security guard, Ms Nicole Tania Carey. She stated that she and other security guards met with Mr Maio at the rear of the Supa Valu loading bay at about 8.00 to 8.15 pm. She said they were standing at the loading bay. She said the spotlight was on. She said the chain, which was stretched across between the bollards, was clearly visible. She also stated that there was a light on at the rear of the pharmacy and also a light on in the medical centre. She said the chain across between the bollards was clearly visible.
59 She said that during the night she had observed unruly behaviour by
groups of youths in the carpark. They were throwing eggs at the buildings
and at passing motorists.60 At approximately 9 o'clock it came to her attention that an incident
had occurred at the rear of the shop. She walked around to the chain and stepped over it. She observed two youths, one lying on the ground over near the park area. She could not identify either of the two youths as being involved in any unruly behaviour.
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61 Under cross-examination she could not recall if there was any bags
attached to the chain. She admitted that when she was at the loading bay area at approximately 8 pm she did not see anyone switch the light on and it may have come on as a result of the operation of a sensor device.
62 Finally, the defendant called Dr Chong Ngai Chew (also known as Dr Steven Chew). Dr Chew is an engineer who gave expert evidence. Tendered into evidence were three documents –
1. Substance of expert evidence of Dr Steven Chew dated 25 June 2007. 2. Supplementary substance of expert evidence of Dr Steven Chew dated 18 September 2007. 3. Letter from West Australian Technical Consultants Pty Ltd to SRB Legal dated 12 September 2007. 63 Dr Chew's evidence was that he conducted illumination tests and in
the document "Substance of expert evidence of Dr Stephen Chew dated
25 June 2007" it set out his conclusions which were as follows:
1.
Dr Chew considers that with a spotlight mounted on the wall outside IGA supermarket switched on, the lighting on the driveway in the vicinity of the chain provides sufficient illumination for a pedestrian to see the chain and avoid tripping over it during hours of darkness.
2.
In Dr Chew's opinion the spotlight does not cast any shadow which may prevent a normal person from seeing the bollards, chain and sign.
3.
Where a person approaches the chain from Sanderling Street side of the driveway, Dr Chew considers with the spotlight on IGA supermarket wall switched on, the chain was visible from 9 metres away, and the white plastic carry bags on the chain were visible from 110 metres away.
4.
In Dr Chew's opinion, the results of illuminance measurement are consistent with between 6.3 and 10.2 lux (average 8.3 lux) horizontal illuminance which is the above range of illuminance and is sufficient for safe pedestrian movement as the "Guide to Lighting of Exterior Working Areas" published by the International Commission of Illumination, in its table A.4.1 entitled "Recommended Values of Illuminance and Uniformity Ratio" recommends an average horizontal illuminance of 5 lux for movement of people.
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5. Based on his observations made during a night inspection of the area, it is Dr Chew's opinion that with the spotlight mounted on an exterior wall of the IGA supermarket switched on, lighting of the area at and in the vicinity of the chain and bollards is sufficient for safe movement of people, and for a pedestrian to see the chain and avoid tripping over it, during hours of darkness.
64 Under cross-examination he admitted that without the spotlight on
visibility was very poor at and about the chain. He thought the reading for illumination would be very close to zero. He thought that the main source of illumination of the area between the two bollards was the spotlight. If the spotlight is turned off, then the illumination level would be well below the recommended levels. With the light switched off he believed the chain would constitute a hazard.
Findings
1. I find that at the time of the accident the spotlight was not on and the chain across the access did not have attached to it plastic bags.
In reaching these findings I am influenced by the following:
(a)
Having had the benefit of observing Mr Karapetkoff in the witness box I was very much impressed by him as an honest and, on crucial issues, a reliable witness. Further I conclude that he was not influenced in his evidence by his friendship with the plaintiff. He was approximately two years older than the plaintiff. I conclude that he has not maintained a close friendship with the plaintiff as was evident from the fact that he stated in his evidence he was unaware the plaintiff was continuing with the claim until he received notification he was required to give evidence. Further, he stated that he only attended court to give evidence because he had received a subpoena. Otherwise he would have preferred to have been at work. Although, he was unable to recall details such as the clothing he was wearing and was unable to accurately account for the period of time before the accident, I accept that this is not unexpected due to the number of years that have elapsed since the accident. I accept his evidence that he also did not see the chain before the plaintiff's accident because the area was dark and that as a result of him not seeing the chain he also collided with the chain.
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(b) It is not disputed in these proceedings that the plaintiff ran into the chain and injured himself. Having made the finding that Mr Karapetkoff also ran into the chain and collided with it, I am of the view that it is unlikely that both the plaintiff and Mr Karapetkoff would have run into the chain without seeing it if the chain was "lit up like a Christmas tree" as claimed by Mr Maio or was visible for 110 yards away as a result of the plastic bags attached to it as indicated by Dr Chew's evidence. (c) I reject Mr Maio as a reliable witness as to what occurred after the plaintiff was injured. He stated in his evidence that he became alerted to the accident by Mr Calebro and then went to the chain. He stated that the police and security guards arrived a short time later and he directed them to the plaintiff. Mr Maio's account that he directed the police and security guards to the injured plaintiff is not supported by other witnesses. Constables Rowe and Northrope stated they came upon the plaintiff as a part of their patrol and made no mention of being directed to the plaintiff by Mr Maio. Further, Mr Calebro in his evidence stated he was alerted to the accident by a security guard which suggests that the security guards were already aware of the accident before Mr Maio arrived at the scene. (d) I also conclude it is unlikely, as claimed by Mr Maio, that before the accident he placed the plastic bags on the chain and switched on the spotlight out of concern for safety of people in the area. Mr Maio was more concerned about security issues rather than safety. He had not on any previous occasion switched on the spotlight and placed plastic bags on the chain. I do not accept his explanation for doing so on this occasion. I believe it is more consistent with previous behaviour that there was no spotlight on and no bags attached to the chain at the time of the accident but these things were done after the accident to cover up the hazard that had been created. 2. I accept the evidence of the plaintiff that after the accident someone came out of the Supa Valu store, switched the spotlight on and placed plastic bags on the chain. I conclude that the person who did this was either Mr Maio or someone else acting on his instructions. I reject the defendant's contention that the plaintiff's evidence of observing such a person come out of the Supa Valu
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was a recent concoction to explain the presence of the plastic bags on the chain as observed by the plaintiff and his father the next morning when photographs were taken. I am more easily able to reject this contention because although the plaintiff gave evidence that he told his father the next morning of his observations, the defendant's counsel did not cross-examine the plaintiff's father as to whether the conversation took place.
3. I find that without the spotlight on and the plastic bags on the chain, the chain was not adequately visible and did create a hazard. This is confirmed by the evidence of Dr Chew. The visibility of the chain was hampered by the fact that the paint had worn off and the chain was corroded. Further, although I conclude that it is likely that there was a light on at the rear of the pharmacy and a light on under the eaves of the medical centre, these lights provided insufficient illumination to enable either the plaintiff or Mr Karapetkoff to observe the chain as they were jogging through the rear car park area. Further, there was no direct evidence to enable me to conclude that light from these two sources made it likely that the plaintiff was able to see the sign on top of the white bollard.
4. I find that the plaintiff was not a trespasser. I accept the evidence of the plaintiff and Mr Karapetkoff that they were jogging home through the rear car park area that was generally accessible to the public. There was no evidence that the plaintiff was engaged in unlawful activities, was asked to leave the premises or was running away from the police and/or security guards at the time of the accident. I accept the plaintiff’s evidence that he was not previously aware and did not see the sign stating the rear car park area was closed. Further, he was not previously aware that a chain was placed across the area each evening. Further, in my opinion, the closing of the rear car park was designed to prevent access through the area by vehicular traffic and not to close the area to pedestrians. This is confirmed by the minutes of the defendant which recorded the reason for the erection of the chain was to prevent vehicles drag racing through the area. This is also consistent with the wording of the sign and the nature of the barricade. If it was meant to prevent pedestrian access, I would expect the wording of the sign to have included a more explicit prohibition of pedestrians entering the area and some form of barricade other than a chain.
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5. In the alternative, I find that even if the plaintiff was a trespasser, then the defendant knew of the likely presence of pedestrians in the area and/or it was reasonably foreseeable that pedestrians might be present. The area is generally accessible by members of the public and an obvious access route for pedestrians to cut through from one side of the Shopping Centre through to another. This conclusion is largely acknowledged by the conduct of Mr Maio or someone acting under his directions switching on the spotlight and placing white plastic bags on the chain after the accident.
6. I find that the defendant was negligent and in breach of its duty of care to the plaintiff in erecting the chain across between the bollards. The chain created an obstruction across the car park area which was not sufficiently visible and thereby created a hazard. Further, it was reasonably foreseeable that there may be people moving through the car park area on foot and may collide with the chain and be injured.
7. I find that the plaintiff was negligent by jogging through the rear car park, given the lack of visibility that existed at the time. In my opinion the plaintiff ought to have proceeded through the area at a more cautious pace. I find that the height of the chain meant that it made contact with the plaintiff’s upper thigh. If the plaintiff had been walking then it is likely that he would not have fallen over the chain causing injury. Notwithstanding this finding of contributory negligence I find that the main cause of the accident was the negligence of the defendant.
Contributory negligence
"Section 4 of the Law Reform (Contributory Negligence and
Tortfeasors Contribution) Act 1947 provides as follows:'(1) Whenever in any claim for damages founded on an allegation of negligence the Court is satisfied that the defendant was guilty of an act of negligence conducing to the happening of the event which caused the damage then notwithstanding that the plaintiff had the last opportunity of avoiding or could by the exercise of reasonable care, have avoided the consequences of the defendant's act or might otherwise be held guilty of contributory negligence, the defendant shall not for that reason be entitled to judgment, but the Court shall reduce the
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damages which would be recoverable by the plaintiff if the happening of the event which caused the damage had been solely due to the negligence of the defendant to such extent as the Court thinks just in accordance with the degree of negligence attributable to the plaintiff'.
The making of an apportionment under s 4 of the Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 involves a comparison both of culpability and of the relative importance of the acts of the parties in causing the damage: Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 494. In that case the High Court pointed out that it is the whole of the conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination."
Taking all factors into account, I conclude that the plaintiff's claim ought to be reduced for contributory negligence by 20 per cent.
Accordingly, on the issue of liability I apportion liability 80 per cent/20 per cent in favour of the plaintiff.
I will hear counsel as to what final orders should be made in relation
to the matter.
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