Uniting Church of Australia Property Trust v Dobell

[1995] QCA 562

IN THE COURT OF APPEAL	[1995] QCA 562
SUPREME COURT OF QUEENSLAND

Appeal No. 145 of 1995

Brisbane

[Uniting Church of Australia Property Trust v. Dobell]

BETWEEN:

THE UNITING CHURCH OF AUSTRALIA PROPERTY TRUST

(Defendant) Appellant

AND:

PATRICIA MARY DOBELL

(Plaintiff) Respondent

Macrossan CJ
Thomas J

Dowsett J

Judgment delivered 14 December 1995

Joint reasons by Thomas and Dowsett JJ; Macrossan CJ dissenting.

APPEAL ALLOWED WITH COSTS

CATCHWORDS:	NEGLIGENCE - Personal injury liability - collision between two customers in Lifeline store - whether distance between clothing racks not of safe width - risk inherent in human movement near clothes racks - whether suggested solution poses comparable risks - whether store owner negligent - Wyong Shire Council v. Shirt (1979-80) 146 CLR 40.
Counsel:	Mr S. Williams QC for the Appellant Mr L. Boccabella for the Respondent
Solicitors:	Gadens Ridgeway for the Appellant Baker Johnson for the Respondent

Hearing Date: 14 November 1995

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 145 of 1995

Brisbane

Before Macrossan CJ

Thomas J Dowsett J

[Uniting Church of Australia Property Trust v. Dobell]

BETWEEN:

THE UNITING CHURCH OF AUSTRALIA PROPERTY TRUST

(Defendant) Appellant

AND:

PATRICIA MARY DOBELL

(Plaintiff) Respondent

REASONS FOR JUDGMENT OF THOMAS AND DOWSETT JJ

Judgment delivered 14 December 1995

The Uniting Church of Australia Property Trust (the appellant) manages various stores

known as Lifeline. One of these is situated at Aitkenvale, Townsville. It sells second-hand clothing

and other goods including books and bric-a-brac. On 2 June 1992 the respondent was shopping in

the store when another customer stepped backwards and collided with her. She fell to the floor.

She sued the appellant alleging that her injuries were caused by its negligence.

At trial the respondent sought to establish negligence, broadly speaking on three bases:

(a)	that the area where she fell (referred to in argument as the back aisle) was "not of safe width", and that it could reasonably be expected that other shoppers standing at a clothes- rack adjacent to that area might step backwards into the path of a customer proceeding as the respondent did;
(b)	that a free-standing rack which the plaintiff had attempted to seize in order to steady herself was deficient in design as it moved when she took hold of it; and
(c)	that the floor should have been covered with carpet to lessen the impact of any fall.

The learned Trial Judge rejected any breaches of duty under (b) or (c) above, and neither party challenges that rejection. The learned Trial Judge found in favour of the respondent on the basis mentioned in paragraph (a), and the sole point of the appeal is whether that finding of

negligence is sustainable.

The store consisted of a single room about 17 metres by 15 metres. Apart from a small

counter-cashier area, a small area for change-rooms and a small toilet area, the store consisted

entirely of racks containing clothes, of tables which display the available goods, and of space

between these objects. The best evidence of the configuration of the store is contained in a plan

produced at trial by the appellant. That plan is the only means of starting to comprehend the store

layout. A reduced copy is appended to these reasons. It shows the racks in the vicinity where the

plaintiff fell, and it must be read as subject to the Trial Judge's acceptance of the respondent's

evidence which places the two relevant slacks racks in different positions from those suggested by

the defendant. The appended copy contains the position of the two relevant slacks racks as

superimposed by the respondent on the exhibit. There is no useful evidence illustrating where

numerous other racks were positioned in other parts of the store, but clearly there were many other

racks, both rectangular and circular, occupying floor space, although nothing like the estimate of 100

made by one witness.

The respondent did not go to the store for any particular purpose other than to accompany

her daughter-in-law. Her daughter-in-law was looking for something particular, and the respondent

did not stay with her. The respondent was interested in books and she wandered about to see if she

could find any. That is how she found herself in the back area of the shop. The wall on the left-

hand side of the plan is the rear wall of the store, and adjacent to that wall there was a long row of

slacks racks, which will be called the wall rack. She apparently proceeded between the wall rack

and the jeans rack which is a free-standing rack about 1.1 metres from the wall rack. The next rack

ahead of her was a slacks rack which was in the position in which she has drawn it. This will be

referred to as the first slacks rack. The X represents where a young man was standing, and the

asterisk (on the other side of the rack) represents his companion to whom he was talking. When the

respondent got to the position which she has marked with a circle the young man stepped back causing contact between his leg and the lower half of her right leg. She tripped and grabbed at the

clothes on the back wall, but these gave her no secure purchase, and she apparently stumbled

forward about six paces to the next slacks rack on her right. It did not support her and she fell on

her knee.

Prior to the incident she had seen the young man when she was seven or eight feet away,

and had walked slowly towards him.

Practically all unoccupied space in the store is capable of being traversed by customers, and

whilst all available passages between objects might be called passageways or aisles, the layout of the

store does not suggest any particular routes or mainstream passages. There is no evidence that

there is more space along the rear wall than in most other parts of the store, or that anyone regarded

this particular area as an aisle or thoroughfare different from any other part of the shop where

persons might go, or that it was more used than any other part of the store. Counsel for the

respondent submitted that for persons who wanted to get from one side-wall to the other, this would

be the best way, as considerable zigzagging would otherwise be required, but there is no evidence to

that effect. In a sense all spaces between objects in the store along which persons might move may

be called aisles, but it would be misleading to use the description "aisle" "passageway" or "pathway"

as conveying that this area was part of a special or identifiable route or thoroughfare through the

shop. It would likewise be erroneous to treat the racks as impediments to any special pathway.

The respondent's diagrammatic evidence suggests that the available space between the first

slacks rack and the wall rack was about 1.3 metres (4' 3") and that the space between the next

slacks rack and the wall rack was considerably less - 0.75 metre (approx. 2' 6"). This perhaps

serves to emphasise the imprecision of the evidence, but it also serves to demonstrate the artificiality

of treating this area, or indeed any part of the store as an identifiable aisle.

The critical part of Her Honour's reasoning appears in the following passage:

"The fact that a person, like the youth, standing at a clothes rack might step back was of course foreseeable, as was the fact that the act of stepping back might trip another walking along behind him. This constituted a risk of injury which was not so far fetched or fanciful that it was not 'foreseeable': Wyong Shire Council v. Shirt (1980) 146 CLR 40 at 48. The risk may have been minimal where racks were placed so close together that persons passing between them would or should not expect to do so unimpeded, especially where racks were not positioned near a passageway. However I am satisfied such a risk increased with the racks adjacent to the aisles along which shoppers could be expected to walk in passing from one area of the shop to another. The back aisle was such a passageway with the racks so positioned to give shoppers the clear indication that one person could walk unimpeded along that aisle, and that two could safely pass. The plan of the layout tendered by the defendant puts beyond doubt that it would have been possible to position the slacks racks at an angle to the rear wall to easily minimize such a risk. In my view, had the racks been positioned as the plan and Mrs Lowman had suggested they were, there would have been sufficient room for the youth to step back from the rack without stepping into the aisle or stepping suddenly into the plaintiff's path. A reasonable person in the defendant's position would have foreseen that a rack placed parallel to the aisle near the men's wear section involved the risk of injury to those walking along the adjacent aisle."

Despite the difficulty occasioned by the position in which the respondent places the second slacks

rack, it was open to Her Honour to take the view that the racks were positioned so as to allow two

people to pass by, although plainly it would be a tight fit, and would require some care and

consideration by each person in passing. We also accept the learned Trial Judge's view that the risk

is minimal when racks are close together - probably because the necessary restriction of movement

demands slow and controlled movement - and that the risk increases when people think that there is

room to move freely. The critical difficulty in the case lies in Her Honour's conclusion that the

positioning of racks at approximately a right-angle to the wall would be safer than positioning them

as the appellant did, and that this would "easily minimise" the risk associated with the positioning of

the racks in question.

The essential conclusion of the learned Trial Judge is that by positioning the first slacks rack

as drawn by the plaintiff, and by failing to position it in a position similar to that originally drawn by

the defendant, the appellant breached its duty to the respondent and was guilty of negligence.

In our view it cannot be said that the second position is overall safer than the first, let alone

that it significantly or easily minimises the risk of mishap. It might reduce the chances of an identical

accident to this one happening, but it immediately creates other risks of equal magnitude. There is a

natural temptation in a case such as this to assume with hindsight that the main danger to be guarded

against is that which actually happened, in this instance a straight step backwards by a distracted customer. But the possibilities of collision are endless. The right-angle position postulated by Her

Honour as that which the appellant should have adopted, creates a blind corner behind the rack.

The racks are 1670 millimetres high (approximately 5' 6"). Perhaps half the population would

qualify as capable of emerging unseen from behind such a rack into the path of anyone walking along

the so-called aisle if the rack were turned to the position proposed by Her Honour. Also, a

distracted shopper is as likely to step backwards at forty-five degrees or any other angle. If he or

she does so from the end of a rack adjacent to another shopper's path of travel there will still be a

risk of collision. The risk is enhanced by emergence from the blind side. Overall the suggested

solution seems to pose greater risks than those which it is intended to eliminate.

Counsel for the respondent submitted that the appellant had created a situation where

people would be bumping into one another in a thoroughfare situation. He conceded that risk would

not be eliminated by the new configuration suggested by Her Honour, but submitted that this would

"minimise" the risk. However for the reasons already given, it cannot safely be held that one is

overall better than the other although in our provisional view the suggesting remedy is fraught with

greater risk than the original. In the present case a person in the position of the respondent at least

had some control of the situation in that the person who might move was visible to her as she

approached. The suggestion that the store manager should in effect have turned the rack 90 degrees

would merely relocate a problem associated with the commingling of human beings.

The ultimate question is whether the risk inherent in human movement near racks in the store

could and should have been eliminated by the store owner consistently with the principles recognised

in Wyong Shire Council v. Shirt (1979-80) 146 C.L.R. 40, 47-48, Australian Safeway Stores Pty

Ltd v. Zaluzna (1987) 162 C.L.R. 479, 488, and Nagle v. Rottnest Island Authority (1993) 177

C.L.R. 423. This involves consideration of what a reasonable store owner might be expected to do

in response to any relevant risk.

It is accepted that shoppers generally inspect the merchandise from the sides of the racks rather than the ends. It would seem that shoppers inspecting the slacks display anywhere along the rear wall would present just as much a risk of an accident as did the young man at the free-standing

"parallel" rack. It was not however suggested that the positioning of the slacks racks against the rear

wall also needed to be changed although that would seem to be a logical requirement if the angle-

change suggestion is valid. Indeed there is inevitably something of a domino effect once

rearrangements of this kind are suggested. The overall store layout from a safety viewpoint is by no

means a simple problem to which a layperson can suggest an obvious solution. The court did not

have the benefit of any expert evidence. Whether there exists any overall solution with any

significant improvement in safety is not known.

The passing and repassing of persons in the street, in rooms, at social occasions, in corridors

where pictures are hung, and the browsing and moving of persons in stores is a familiar part of life.

In the street a person who has been looking in a shop-window may step backwards into the path of

another. The pedestrian may be forced to walk close to where such a person is standing because

there are other persons occupying the footpath, or simply because he chooses to do so. Normal

human movement adjusts itself to react even to sudden or unexpected movements of another in such

situations. Even so, mishaps will sometimes occur. The forgetful person who steps into another

person's path in those circumstances may be guilty of negligence, and so too might be the passer-by,

but something more would need to be shown before one would contemplate finding negligence

against the shop owner or the street authority. Human ingenuity has not yet devised a feasible way

of eliminating such risks.

The scene was a familiar one and from the respondent's point of view there was no hidden

trap. Although it might not ordinarily be considered to be a danger, the risk of collision between

human-beings in such a situation was clearly foreseeable, no matter where or at what angle a rack

was placed. That allows the plaintiff to surmount the first question posed by Mason J in Wyong

(p.47), and leads on to the second question, namely what a reasonable person would do by way of

response to that risk. Answering that question is a balancing exercise which involves taking account

of the magnitude of the risk, the probability of its occurrence, the expense difficulty and inconvenience of alleviating action and "any other conflicting responsibilities which the defendant may

have". In our view there was no satisfactory evidence upon which to conclude that effective

alleviating action was open. The suggested change of angle of the free-standing racks is a solution

that would lay the appellant open to responsibility from equally foreseeable mishaps in the suggested

new position. It is useless to eliminate the particular risk known to have been suffered by a plaintiff if

the remedy creates other risks of comparable magnitude.

Counsel for the respondent submitted that the racks, if turned to something like a right-angle

to the wall, should have been placed so as to allow access "three people wide" between the rack

and the racks adjacent to the rear wall. If that is the correct design solution, presumably it would

need to be applied to all other parts of the store which could be perceived as modes of access. The

area left for display stands would be very severely reduced, and the solution would not necessarily

be the simple and inexpensive one postulated by the learned Trial Judge of the repositioning of a few

racks. Indeed the solution might very well be one which would make it impossible for the charitable

indigent person-oriented and low-cost objectives of these stores to be maintained. Furthermore, the

widening of the aisles might increase the speed and nonchalance of those using them, thereby

increasing the risks. These points were not the subject of evidence, and indeed evidence of the

safety implications of an alternative which would enable a satisfactory balancing exercise to be

carried out was lacking.

The standard of response required of the appellant is not absolute: it is that of the

reasonable person, and in the context of the present case, the reasonable storekeeper. In the

circumstances of the present case it was not reasonably open to hold that the appellant breached its

duty to the respondent by failing to put the relevant rack into some other position, or that some other

practicable configuration would have been appreciably safer overall than that which existed at the

time. It was not open to find that the appellant neglected to do something that a reasonable

storekeeper would have done by way of response to the risk.

The appeal must therefore be allowed with costs.