Edge v Basile
[1999] QDC 306
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Edge v Basile[1999] QDC 306
Edge v Basile[1999] QDC 306
DISTRICT COURT | Plaint No 2340 of 1997 |
CIVIL JURISDICTION
JUDGE FORDE
VALERIE JEAN EDGE | Plaintiff |
and
LISA BASILE and UMBERTO BASILE | Defendants |
BRISBANE
DATE 25/08/99
JUDGMENT
HIS HONOUR: The plaintiff in this action claims damages for personal injuries as a result of an incident which occurred on 9 December 1996 at the premises of her hairdresser situated at Shop 8, Flockton Street Shopping Centre, Everton Park.
The defendants, Lisa Basile and Umberto Basile, were the proprietors and occupiers of those premises. The plaintiff, Valerie Jean Edge, was a regular client of the hair dressing salon. (Refer to Exhibit 8 and the evidence in this case of Miss Charmaine Mullaly). The plaintiff was paying for her hair cut on the said date when a bottle of shampoo, of which a similar bottle is depicted in Exhibit 3, fell from a shelf which was on her left, as depicted in Exhibit 7, and hit her foot. She suffered an injury to her foot as a result.
Quantum has been agreed in the amount of $20,000 and so liability is the only issue for determination in this case.
The plaintiff's claim is based upon a breach of duty of care in negligence and further, or the alternative, a breach of the implied term of the contract between the parties that the defendants would take all reasonable care to ensure the safety of the plaintiff while she was on the defendants' premises.
For all intents and purposes, as far as any breach is concerned, the facts of this case do not require a distinction to be made between the two breaches in paragraphs 4 and 5 of the plaint (See Calin v. Greater Union Organisation Pty Ltd (1991) 173 Commonwealth Law Reports 33 at 41). However, it is relevant if there is a question of contributory negligence as it has been held that where a breach of contract is relied upon successfully, that in an action of this nature damages are not reduced notwithstanding any contributory negligence on the part of the plaintiff. (See Astley v. Austrust (1999) 73 Australian Law Journal Reports 403).
The plaintiff gave evidence that whilst she was at the front of the defendants' premises paying for the hair cut, the bottle fell, but she could not say why the bottle fell. In fact, she rejected the situation that any part of her body or her handbag came into contact with the rack or a bottle. There was no other reason why the particular shampoo bottle would have moved other than it was struck by the plaintiff or her bag.
The evidence of Miss Charmaine Mullaly is that she confirmed that the shampoo bottle fell on to the plaintiff's foot and when cross-examined, and also in evidence in chief, she was adamant that the handbag of the plaintiff was on the left shoulder. If the plaintiff's handbag had hit a bottle, it may be that the plaintiff would not have directly felt the physical contact. In the circumstances of this particular case, in the absence of any rational explanation, it is more likely than not that the bag did hit the bottle and I accept the evidence of Miss Mullaly in relation to her observations in this respect. That, of course, is not the end of the matter because if there is a foreseeable risk of injury created by the circumstances, then, of course, inattention on behalf of the plaintiff does not necessarily mean then that she fails in her action. It becomes a question then of determining, firstly, what the relevant facts are in this particular case and applying those facts to the law as provided in the authorities and referred to in a most helpful way in submissions from counsel for the plaintiff.
The plaintiff's case has two bases and that is, firstly, the stand, as depicted in Exhibit 7, was not the relevant stand at the time but that as depicted in view B in Exhibit 2. Evidence was given by Julie Sheehan, who is a market manager or area manager for Schwarzkopf, the manufacturer, who said that she distributed the stand, which is shown in Exhibit 7 on the left side in the front of the reception desk, in or about 1993 and although she could not say it was there on a particular day, she had noticed it on occasions in the front of the reception area.
Sharon Wharton was the manager for some ten years at the defendants' hair dressing salon. She gave evidence that no products were knocked off the shelf near the counter. She also said that the stands were changed around a bit and so, her evidence in relation to where the particular stand was, was somewhat unsatisfactory. What she did say was that it was not uncommon for stands of that nature to be at the front of the counter for purposes of marketing.
Charmaine Mullaly, who was the senior at the shop, gave evidence that the particular stand, as shown in Exhibit 7, was in that position as at the time of the incident, as did the owner, Miss Lisa Basile, and that although it may be moved from one side to the other at a time, 80 percent of the time it was in that position.
I accept the general thrust of that evidence, particularly the evidence of Miss Mullaly, that, in fact, the stand with the rail was in that position at that time. The effect of that is that the plaintiff's case in that respect at least fails in that such a rail would have minimised the risk of an item falling, although it could not be completely fail proof because of the height of the rail and the fact that the bottle fell in the present instance.
The main thrust of the plaintiff's case therefore relies upon the position of the said stand near the counter. It is submitted that it ought not to be placed in that position and that the risk could be minimised or removed if placed elsewhere. It should be mentioned that Miss Basile gave evidence that the stand in view B of Exhibit 2 was not placed in front because of its length, as one looks at it, as items could be stolen from the front of the shop even with the security grille down. That evidence, in my view, supports the general thrust of the fact that the other stand was in position as shown in Exhibit 7. It is also relevant to know that such stands are placed in similar positions in the experience of Miss Sheehan and Miss Basile, who were experienced persons, who had been respectively involved in the industry, for Miss Basile' case, up to 25 years, owning other salons. I accept the evidence that the particular stand is part of the marketing process for hairdressing salons to allow either customers to conveniently select an item or for passers-by to observe and to purchase such items where they are placed at or near the front reception area. Also, placing it elsewhere, I find, would not necessarily remove the risk.
Relevant Principles of Law
The ordinary principles of negligence are applicable to occupiers in the present position viz. to take reasonable care to avoid a foreseeable risk of injury: see Australian Safeways Store v. Zaluzna (1987) 162 Commonwealth Law Reports 479, which applied the earlier decision of Hackshaw v. Shaw (1984) 155 Commonwealth Law Reports 614 at 662-663.
As referred to by counsel for the plaintiff, the question is whether a risk is foreseeable as considered in Wyong Shire Council v. Shirt (1979) 146 Commonwealth Law Reports 40 at page 47. A risk which is not far fetched or fanciful is real and therefore “foreseeable”. (See page 48, Mason J.) Apart from that general principle which is applicable I accept a submission from counsel that Calin v. Greater Union Organisation Pty Ltd (1991) 173 CLR 33 is apposite to the present case.
I have already made reference to the approach to be adopted in this case that was there a breach of implied warranty that the premises are safe as the purposes of the exercise of reasonable skill and care can make them.
Counsel rely upon a Court of Appeal decision in Queensland of Uniting Church of Australia Property Trust v. Dobell, 14 December 1995 at pages 6 and 7, and I quote the two relevant passages:
“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 CLR 40, 47-48, Australian Safeway Stores Pty Ltd v. Zaluzna (1987) 162 CLR, 479, 488, and Nagle v. Rottnest Island Authority (1993) 177 CLR 423. This involves consideration of what a reasonable store owner might be expected to do in response to any relevant risk.
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 (at 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.”
A similar approach was adopted in the case of Dailly v. Spot-on Investments Pty Ltd which is reported in (1995) Australian Torts Reports 81-363 and was referred to in a case of Anderson v. Mount Isa Basketball Association Incorporated (1997) Australian Torts Reports 81-451, a decision of the Queensland Court of Appeal.
Dailly's case is illustrative of the two-step approach which should be adopted in cases of this nature, and that is assuming that the plaintiff establishes that there was a foreseeable and not far-fetched or fanciful risk which I accept as to whether:
“The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of act can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.”
What the Court of Appeal did do in Dailly's case was state that:
“It is reasonably foreseeable that a customer whose attention is distracted by looking to the shop assistant or at an article displayed on the shelves, may fall over a chair and suffer the sort of injuries that the plaintiff suffered. It does not follow there must have been a breach of duty by the occupier of the shop notwithstanding that shopkeepers may trade in shops without chairs or display racks and these may be easily removed.
In my opinion, the magnitude of the risk and the degree of probability when combined with the other relevant factors to which I have referred were not such as to lead to the conclusion that the defendant by placing and leaving the display rack where it did was in breach of a duty of care to the plaintiff.”
I have, unfortunately for the plaintiff, arrived at a similar position in finding that in accordance with that principle that the plaintiff has failed in her action to prove the relevant breach of duty by the occupier, in this case either in negligence or in contract.
The action is dismissed.
It is ordered that the plaintiff do pay the defendants' costs to be assessed in the action including reserved costs, if any, where the amount recovered does not exceed $50,000.