Ibrahim v Myer Queensland Stores Limited
[1997] QCA 229
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- Ibrahim v Myer Queensland Stores Limited[1997] QCA 229
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Ibrahim v Myer Queensland Stores Limited[1997] QCA 229
Ibrahim v Myer Queensland Stores Limited[1997] QCA 229
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 6505 of 1996
Brisbane
[Ibrahim v. Myer Queensland Stores Ltd]
BETWEEN:
SAMEHA IBRAHIM
(Plaintiff) Appellant
AND:
MYER QUEENSLAND STORES LIMITED
(Defendant) Respondent
Fitzgerald P.
Mackenzie J.
Helman J.
Judgment delivered 1 August 1997
Separate reasons for judgment of each member of the Court each concurring as to the order made.
APPEAL DISMISSED WITH COSTS
| CATCHWORDS: | NEGLIGENCE - duty of care - appellant tripped on step at base of pedestrian ramp - degree of risk posed by step - whether failure to eliminate step constituted breach of duty of care. Wyong Shire Council v. Shirt (1980) 146 C.L.R. 40. Miletic v. Capital Territory Health Commission (1995) 69 A.L.J.R. 675. Chicco v. The Corporation of the City of Woodville (1990) Aust. Torts Reports 81-028 Cairns v. Mathers Shoes Pty Ltd (Appeal no. 7 of 1993, unreported, 1 June 1993) |
| Counsel: | Mr J.W. Greenwood QC, with him Ms Greenwood for the appellant. Mr J.A. Griffin QC, with him Mr C. Newton for the respondent. |
| Solicitors: | Georgeson & Company for the appellant. Michell Sillar Nicholsons for the respondent. |
| Hearing Date: | 25 June 1997 |
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 6505 of 1996
Brisbane
| Before | Fitzgerald P. Mackenzie J. Helman J. |
[Ibrahim v. Myer Queensland Stores Ltd]
BETWEEN:
SAMEHA IBRAHIM
(Plaintiff) Appellant
AND:
MYER QUEENSLAND STORES LIMITED
(Defendant) Respondent
REASONS FOR JUDGMENT - FITZGERALD P.
Judgment delivered 1 August 1997
The circumstances giving rise to this appeal are set out in the reasons for judgment of Helman J.
While it is orthodox to approach the issues of breach of duty and causation sequentially, they tend to conflate in a case such as this. The appellant tripped and fell because she did not watch where she was walking. The trial judge found that she “was acquainted” with the step on which she tripped, and that she “had negotiated [it] countless times without mishap”. The appellant would have tripped over any raised surface in her path at the point at which she fell, at least if it was not less than “about two inches high”. For example, if there had been no ramp, she would have tripped over the kerb unless she looked down. She caused her own injuries.
In any event, negligence by the respondent was not the cause of her injuries. The appellant’s argument did not explain how a distinction is to be drawn between those plainly visible changes in level or obstacles on land which give rise to liability in neligence and those which do not. Once it is accepted, as in my opinion it must be, that there is no legal test which can be applied for such a purpose, it was plainly open to the trial judge to arrive at the conclusion that the respondent was not negligent. As it happens, I consider that conclusion was patently correct.
I agree with Helman J. that the appeal should be dismissed with costs.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 6505 of 1996
Brisbane
| Before | Fitzgerald P. Mackenzie J. Helman J. |
[Ibrahim v. Myer Queensland Stores Ltd]
BETWEEN:
SAMEHA IBRAHIM
(Plaintiff) Appellant
AND:
MYER QUEENSLAND STORES LIMITED
(Defendant) Respondent
REASONS FOR JUDGMENT - MACKENZIE J.
Judgment delivered 1 August 1997
I agree with the order proposed by Helman J. for the reasons he has given.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 6505 of 1996
Brisbane
| Before | Fitzgerald P. Mackenzie J. Helman J. |
[Ibrahim v. Myer Queensland Stores Ltd]
BETWEEN:
SAMEHA IBRAHIM
(Plaintiff) Appellant
AND:
MYER QUEENSLAND STORES LIMITED
(Defendant) Respondent
REASONS FOR JUDGMENT - HELMAN J.
Judgment delivered 1 August 1997
This appeal is against the dismissal, on 10 July 1996, of the appellant's action for damages for negligence against the respondent company, the proprietor of a shopping centre in Chermside, Brisbane. It was common ground on the pleadings that the respondent was the owner of the land on which the shopping centre and surrounding car parks were built and was the occupier of the car parks, footpaths, mall, and common areas "within and pertaining to" the shopping centre. The appellant was a director of a company called Sameha Pty Ltd, the lessee of premises at the shopping centre from which it conducted a fruit and vegetable shop. In addition to appealing against the learned trial judge's decision that the respondent was not liable to the appellant, she appeals against his assessment of her damages.
His Honour found that at about 8.30 a.m. on 20 May 1985 the appellant walked from a carpark at the shopping centre towards the South Mall entrance and crossed a bitumen - surfaced zebra crossing. As she approached the entrance she saw the centre manager talking to a Mr Tucker, who had once worked at the centre. The two men were standing on a raised, tiled footpath outside the South Mall doorway, close to the top of a ramp which ran from the footpath to the road. The appellant recognized Mr Tucker, and as she walked held out her hand to him. Preoccupied with greeting Mr Tucker and looking at him and not where she was going, she tripped on a concrete step at the base of the ramp. She fell, but attempted to break her fall with her right hand. As a result of the fall she suffered an injury to her right shoulder and her lower back.
The foundations of the appellant's claim as it was pleaded in her statement of claim as amended were first that the ramp was unsafe because of the step, and secondly that there was rubbish, including string or twine, on or near the ramp at the relevant time. His Honour found that the appellant was unreliable on a number of matters, and concluded that her evidence that she put her foot in or on string just before she tripped was a concoction. His Honour found that there was no string or other debris near the ramp at the time in question. He accepted the evidence of Mr Tucker and others on that subject.
His Honour found that the ramp - a "kerb" or "pram" ramp - was an ordinary one of a type that had been built in large numbers, and that many steps of similar height and outline incorporated in those ramps could still be found in Brisbane. The ramp was in an open area, well lit in daylight. It was made of concrete, thus presenting a contrast to the bitumen surface of the road and the tiled footpath. Its gradual incline also contrasted with the flat footpath and the vertical kerb. The step, which was about fifty millimetres high, was plain to see. The appellant herself was acquainted with it. She had conducted a fruit and vegetable shop at the centre from mid-1978 until December 1979 and then from November 1981. She had negotiated the ramp countless times without mishap. On trading days visitors in their thousands used the ramp. None of the witnesses who had worked at the centre had ever seen or heard of anyone falling at it or any of the several other identical ramps at the centre and no record existed of such an event.
The ramp was built, his Honour found, in late 1977 or early 1978. Consistently with the Brisbane City Council's design for those ramps at the time, the only surviving construction drawing made no provision for a step. His Honour observed that the step was presumably provided because the tradesmen who constructed the ramp were familiar with such steps, which had once been a standard feature of ramps of that kind in Brisbane. The Brisbane City Council's October 1966 design required a two inch step or "kick up", at the base of a ramp but, despite its utility in containing water within the channel abutting the kerb, the step was eventually removed from the local authority's standard profile. The design was amended at some time between about July 1971 and 4 January 1976 to show a flush joining at the base. His Honour found that the change apparently resulted from a desire to facilitate access by the handicapped, especially those in wheelchairs. There was, he found, no reason to suppose that the Council regarded the step as hazardous.
His Honour found that an Australian Standard applicable when the ramp was constructed, and when the appellant tripped, required a step no more than twenty-five millimetres high. A 1968 Australian Standard on access by the disabled proposed that kerb crossing ramps be provided - no doubt, his Honour noted, to facilitate the passage of wheelchairs. Exhibit 94, a report dated 17 November 1995 by a witness Dr David Jenkins, consulting engineer and safety expert, shows that the standard was AS.CA52.1-68 in paragraph 2.2.3 of which kerb crossings with a maximum grading of the slope of one in twelve where paths cross a kerb were recommended. A note read: "Where the street gutter carries large quantifies of water a step of 1 in or a fall greater than 1 in 12 may be necessary where the crossing meets the gutter". A revised standard, AS1428-1977, published by the Standards Association of Australia nine years later, was based on a report prepared by the Australian Council for Rehabilitation of the Disabled. The 1977 version required the profile of kerb ramps to be such that the kerb "shall be dropped to a level not more than 25 mm above the adjacent roadway". The accompanying note identified the advantages of the vertical step: "This retains the kerb as a gutter and demarcation line between pedestrian and vehicular surfaces. The continuation of the kerb at the edge of the walkway acts as a signal for the blind.." The standard was again revised in 1988, this time to eliminate the step. It seems, his Honour observed, that by 1988 other tactile indicators, unknown in Australia in 1985, had become available. The Queensland Main Roads Department imposed requirements for pram ramps for places under its authority, which did not extend to the shopping centre. As with the Australian Standard, in 1985 these called for a twenty-five millimetre step, a requirement retained until 1991.
In deliberating on the question of liability his Honour assumed that the respondent owed the appellant the duty of care due to a contractual entrant, although he thought its application to this case doubtful because the appellant tripped at a place open to the public free of charge. His Honour found that there was a risk that a visitor who, like the appellant, failed to exercise ordinary care, would fall at the step and be injured. He concluded that, while in individual instances the risk of harm from the step must have seemed tiny, millions of pedestrian movements over the South Mall entrance ramp should have been expected over the centre's economic life. He found that the sheer volume of expected visits involved a recognizable risk of the eventual occurrence of serious injury to a pedestrian "inadvertently oblivious" to the step. He found that such a prospect was not far‑fetched or fanciful.
Having determined that there was a foreseeable risk of injury from the step, his Honour turned his attention to the question whether there had been a breach of the respondent's duty of care to the appellant. (There was of course no doubt that the requirement of proximity had been satisfied.) In deciding whether there has been a breach of a duty of care a tribunal of fact must determine what response would be made to the risk by a reasonable person. The tribunal does that by balancing the relevant factors: the magnitude of the risk and the degree of probability of its occurrence, as well as the expense, difficulty, and inconvenience of taking alleviating action and any other conflicting responsibilities which may exist: Wyong Shire Council v. Shirt (1980) 146 C.L.R. 40 at pp. 47-48 per Mason J., and Miletic v. Capital Territory Health Commission (1995) 69 A.L.J.R. 675, at p. 677.
His Honour dealt first with the question whether the ramp should have been built without the step:
"The ramp could easily have complied with Council requirements; and it is not suggested that it would have cost more to build with the step than without it. Shoppers with trolleys and people in wheelchairs stood to benefit from the absence of a step, as indeed they did when later on the defendant placed in-fill into the channelling to make a smooth transition between road and ramp. The drainage advantage afforded by the step was not significant. As it happens, there is a slight slope from the kerb near the South Mall entrance away to the carpark where stormwater flowed to gully pits. Perhaps other, not too expensive, means of alerting the blind might have been used, although tactile indicators now sometimes found in heavily trafficked places were not available in Australia by 1985. These conditions tend to suggest that the step should not have been built. There were, however, `conflicting responsibilities', although the decision to do away with the step reveals that they were not paramount concerns. The step conformed essentially with the Australian Standard on Access by the Disabled. It gave warning to the blind. And it assisted in drainage in heavy downpours.
There were choices to be made and a range of factors available to be evaluated. Balancing the material considerations, in my opinion it has not been established that an absence of reasonable care inhered in the initial inclusion of the step."
In a footnote referring to the essential conformity of the step to the Australian Standard on access by the disabled his Honour observed:
"The increased height perhaps disadvantaged the blind but it reduced the risk that sighted pedestrians might not notice the step: cf. Cains v. Mathers Shoes Pty Ltd; C.A. 7 of 1993, 1 June 1993, where Fitzgerald P. and McPherson J.A., speaking of a raised surface ranging in height from 19 mm at one end to 59 mm at the other, said (at 9): `it is common experience that a small but definite rise of the kind involved here is potentially more likely to cause stumbling or tripping than a substantial step that is easy to see'. In any event, there is no reason to suppose that the accident might not have happened if the step had been 25 mm, rather than about 50 mm, high. So it is not to the point that the step was about twice the height proposed by the Standard."
Then his Honour considered whether the respondent should have removed the step after the ramp was built and before the day the appellant fell:
"The next issue is whether the omission to eliminate the step after it was built demonstrates less than reasonable care. The step retained its relevant attributes in May 1985, and the factors mentioned in considering whether its construction amounted to negligence are also germane in this context. Additional matters intrude.
Between its construction and the accident, the step could have been eliminated for less than $200 by putting an inclined bitumen strip at the ramp base. This was actually done after the plaintiff's accident. Pram ramps throughout the Centre were progressively modified to obviate difficulties in taking a line of empty shopping trolleys back inside and, perhaps, because of problems encountered by shoppers in pushing loaded trolleys to their cars. That method of overcoming the step was not criticised; nor was a better way suggested. However, the evidence of Dr Jenkins, an engineer and safety expert, shows that placing bitumen at the base exposed a potential to create other hazards. He says:
`Depositing material in the channelling will block the water flow path and may cause pooling out onto the pedestrian crossing or onto the ramp. The material placed will also have rough edges, especially to either side, and although they are not in areas normally crossed by pedestrians may cause trips by anyone crossing the kerb at an angle. The element of compromise is present in all such facilities: the ramp itself represents a potential hazard to pedestrians walking along the footpath. The standards represent a compromise, attempting to allow for the needs as well as the safety of different groups of users, particularly the disabled.'
These risks to public safety were not shown to be of less magnitude than the risk which eventuated in the accident.
In the circumstances, it has not been proved that reasonable care required elimination of the step."
His Honour concluded that the existence of the step on 20 May 1985 had not been shown to have involved a breach of the respondent's duty of care to the appellant, and so her action failed.
Although his Honour's conclusion that the appellant had failed to prove a breach of duty by the respondent was challenged by the appellant before us, his Honour's findings as to the primary facts were not. On the primary facts it could not be doubted that the risk of injury from the step was, though not so remote as to be far‑fetched or fanciful, extremely small. In the Brisbane area there were many such steps with which it could reasonably be concluded pedestrians were familiar. Before his Honour were photographs of steps like the one in question taken by Dr Jenkins at a number of places in Brisbane in 1995. In exhibit 94 he expressed the view that a small step at the bottom of the ramp would be clearly visible to people approaching from the road side and would not be unexpected by somebody who regularly traversed the area. He continued:
"I base my view primarily on the fact that there are still, in 1995 in the City of Brisbane, numerous examples of ramps with steps at the base ranging from 25 to 75 mm. These are located in pedestrian facilities and are used every day by large numbers of people without tripping or other incident. I took a series of photographs on 8 August 1995 at various locations around the city and I believe that these photographs have been made Exhibit 34 before the court. At least some of the ramps illustrated would have been constructed after 1977, for instance the one located at the Edward St end of the Queen St Mall. The presence of steps on these ramps is not seen as an undue risk and there is obviously no rush on the part of B.C.C. to alter them. It is also evidence from the photographs that footpath surfaces are often uneven, broken by incomplete restoration after excavations and repair works and with uneven lines where different materials meet. The regular pedestrian traffic seems to have no difficulty negotiating these features because the typical pedestrian, consciously or unconsciously, keeps an eye out looking where they are going."
This ramp was in an area well lit in daylight - particularly so by the morning sun Dr Jenkins reported - and was easily visible. The step was not in an unusual place. Its height exceeded that referred to in the Australian Standard on access by the disabled to which Dr Jenkins quite properly had recourse in preparing his report (see Chicco v. The Corporation of the City of Woodville (1990) Aust. Torts Reports 81-028 at p. 67, 895 per King C.J.), but that increased height decreased the risk of its not being noticed. There was no nearby allurement of the kind described in Cains v. Mathers Shoes Pty Ltd (Appeal no. 7 of 1993, unreported, 1 June 1993) likely to distract an unwary pedestrian. The expense, difficulty, and inconvenience of eliminating the step were not shown to be great, but removing it was not likely to eliminate entirely the risk to pedestrians. I see no reason to doubt his Honour's conclusion on that subject; the replacement of one risk by another of equal or almost equal magnitude could hardly be expected of a reasonable person. In addition, the benefits of the step as a warning to the blind and in improving drainage would have been eliminated by removing it.
All things considered I am not persuaded that his Honour should have found that the respondent was guilty of negligence at the relevant time in allowing the step to remain in the ramp. Having reached that conclusion I shall not consider further his Honour's assessment of the appellant's damages. The appeal should be dismissed with costs.