Lynch v Shooters Saloon Bar Pty Ltd
[2005] QDC 233
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- Unreported Judgment
- Appeal Determined (QCA)
- Lynch v Shooters Saloon Bar Pty Ltd[2005] QDC 233
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Lynch v Shooters Saloon Bar Pty Ltd[2005] QDC 233
Lynch v Shooters Saloon Bar Pty Ltd[2005] QDC 233
DISTRICT COURT | No Southport 1157 of 2001 |
CIVIL JURISDICTION
JUDGE RACKEMANN
MICHAEL ARTHUR LYNCH | Plaintiff |
and
SHOOTERS SALOON BAR PTY LTD | Defendant |
BRISBANE
DATE 04/08/2005
JUDGMENT
HIS HONOUR: In the matter of Lynch versus Shooters Saloon Bar Pty Ltd, I give judgment for the defendant and I publish my reasons.
HIS HONOUR: I order the plaintiff to pay the defendant's costs, including any reserved costs, on the standard basis.
DISTRICT COURT OF QUEENSLAND
CITATION: | Lynch v Shooters Saloon Bar Pty Ltd [2005] QDC 233 |
PARTIES: | MICHAEL ARTHUR LYNCH (Plaintiff) v SHOOTERS SALOON BAR PTY LTD (Defendant) |
FILE NO/S: | Southport 1157 of 2001 |
DIVISION: | Civil |
PROCEEDING: | Claim |
ORIGINATING COURT: | Southport |
DELIVERED ON: | 4 August 2005 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 7-8 April 2005 with further submissions received up to 26 July 2005 |
JUDGE: | Rackemann DCJ |
ORDER: | Judgement for the defendant Plaintiff to pay the defendant's costs including any reserve costs on a standard basis |
CATCHWORDS: | NEGLIGENCE – Duty of care – Occupiers liability – Crowd control system – Ropes and bollards – Plaintiff tripped whilst stepping over rope – Risk of injury reasonably foreseeable – Reasonably practicable means of eliminating the risk Cases cited: Hackshol v Shaw (1984) 155 CLR 614 Romeo v Conservation CMN (1998) 192 CLR 431 Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19 Wyong Shire Council v Shirt (1980) 146 CLR 40 |
COUNSEL: | D J Kelly for the Plaintiff P D Lane for the Defendant |
SOLICITORS: | Gall Standfield & Smith for the Plaintiff Barry & Nilsson for the Defendant |
Introduction
- [1]The Plaintiff, who was then a 19 year old scaffolder, suffered personal injury at or about 11:15 pm on 25 January 2001 when he fell while attempting to step over the rope of a queue control device in the entrance walkway leading to the Defendant's saloon bar. The relevant area was admitted to be a place occupied, managed or controlled by the Defendant and which was supervised by servants or agents of the Defendant. The Plaintiff alleged that the accident occurred by reason of the Defendant's failure to exercise reasonable care. Both liability and quantum were in issue.
- [2]The walkway area is an arcade style passageway, of not insubstantial width and length, leading to the entrance of the bar. It is an area used by patrons both entering and exiting the facility. It is at least reasonable for the Defendant to exercise a degree of supervision and control with respect to the flow of patrons to and from its licensed premises. At issue in these proceedings is the safety of the system implemented by the Defendant and, in particular, whether the Plaintiff's accident was the result of a failure by the Defendant to take reasonable steps or to exercise reasonable care and skill.
- [3]The system implemented by the Defendant involved the use of a series of bollards connected by ropes to create three passageways within the walkway. The middle passageway, which featured a red carpet, was for those exiting. The passageways on either side were for those entering. Ordinarily, the right hand passageway was reserved for patrons with membership cards. On occasions however, the right hand passageway was used as the entrance for both members and non-members. I accept the Plaintiff's evidence that it was the right hand passageway to which he was directed on the night in question.
- [4]The Defendant's system involved security staff stationed at each end of the walkway as well as patrolling the walkway. Those at the front of the walkway were responsible for the flow of patrons into the passageway. At the other end there was security at the entrance to the bar where patrons would pay the relevant cover charge to the cashier and enter.
- [5]The bollards and ropes used to subdivide the walkway into three passageways were of a familiar type which, on the evidence and as a matter of common experience, are and have for many years, been used as queue control devices in a range of circumstances. The system consists of movable vertical metal bollards, at about hip height, connected by ropes attached near the top of each bollard by a dog lead type clasp. The height of the rope between the bollards varies. Its height, at the lowest point between the bollards, depends upon how closely spaced the bollards are relative to the length of the rope. The particular bollards and ropes used at the subject premises were, as one might expect for a formal entrance to such premises, of a fairly decorative type, featuring heavily braided and coloured ropes and with a shiny metal finish to the fixings and the bollards.
- [6]The line of bollards and ropes delineating the passageway used by the Plaintiff was continuous and obviously intended to separate the flow of patrons entering in that passageway from those exiting via the central passageway.
- [7]On the evening in question the Plaintiff arrived in a group of about 10 to 15 people and waited at the front until security staff allowed the group to enter the passageway and proceed towards the bar entrance. It was as the group got part way along the passageway that a decision was made not to enter the bar, but to go elsewhere. In order to exit, a decision was made to step over the rope between the bollards. The Plaintiff's evidence was that “as I've gone to put my right leg over the rope my foot's hit the rope and my knee cap's popped out as I've gone to stand back down, over the rope I - my leg gave way and I just felt total pain and the next thing I'm on the ground”[1].
Liability
- [8]It was not suggested that there was no relevant duty of care owed by the Defendant to the Plaintiff. It was foreseeable that some patrons might attempt to step over the rope barrier, notwithstanding its evident purpose. Indeed, the evidence of three of the persons, who were security guards on the night in question, confirmed that this was something which, to their knowledge, was done by some patrons. Further, the Defendant accepted that it was reasonably foreseeable, at least hypothetically, that someone attempting to do so might injure themselves. The Defendant denied liability however, on the basis that there was nothing more that it should reasonably be expected to have done in the circumstances by way of a response to the risk and no reasonable measure would have minimised or excluded the risk.
- [9]In Wyong Shire Council v Shirt (1980) 146 CLR 40 Mason J said (at pp 47-48):
“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the Defendant's position would have foreseen that his conduct involved a risk of injury to the Plaintiff or to a class of persons including the Plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. 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 Plaintiff may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the Defendant's position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. 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 as to degree or probability remains to be considered with other relevant factors”.
- [10]In Hackshol v Shaw (1984) 155 CLR 614 (at pp 662-663) Deane J said, in relation to the duty of care, that:
“... 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”.
- [11]The duty on someone in the Defendant's position is not one to prevent any and all reasonably foreseeable injuries. The duty is not that of an insurer, but a duty to act reasonably[2]. Precautions need only to be taken when that course is required by the standard of reasonableness[3]. The factual judgment involved in a decision about what is reasonably to be expected involves an interplay of considerations, the weight attaching to any one of which is likely to vary according to the circumstances[4].
- [12]The Plaintiff's case, as pleaded, suggested, in effect, that the Defendant's system was one which invited the Plaintiff to step over the rope, thereby incurring a risk of injury, in circumstances where he was not provided with any alternative and safe exit. The Plaintiff pleaded that:
- (i)
- (ii)
- (iii)
- (iv)A reasonable examination of the rope did not reveal any clasp permitting the rope to be detached from the bollards[8].
- (v)
- [13]That case was not made out on the evidence. In particular:
- (i)The height of the rope slung between the bollards was above knee height. While estimates of its height, expressed in centimetres or millimetres, varied, its relative height was, I am satisfied, best described by Mr Kremar whose evidence was that the height varied from just above knee height, at the lowest point, to just below hip height close to the connection to the bollard[10]. The Plaintiff, in the course of examination in chief, indicated that, between the bollards, the rope was slung at a level just above his knee[11]. I accept however, that it was at a height which could be stepped over without great difficulty.
- (ii)There was no implied invitation to step over the rope. While, on the evidence, those intent on stepping over the rope could do so without great difficulty, it should not be concluded that patrons were invited, even impliedly, to do so. It would be apparent to a reasonable person attending the site that the purpose of the ropes and bollards was to demarcate the respective passageways within which patrons should move. While the ropes were capable of being stepped over, a reasonable person would not assume an intention or an invitation that they should do so. Indeed the Plaintiff himself appeared to appreciate that the ropes were not intended to be traversed in that way, notwithstanding having seen other patrons do so on previous occasions. His evidence was that he would not have stepped over the rope had he been aware that there was a security guard walking past because he would have assumed that stepping over the rope was not something which they would have wanted him to be doing[12].
- (iii)It was possible and permissible for the Defendant to have turned around within the passageway to return to the point where he had entered the passageway. I accept however, that this option would not always be the most desirable or convenient. The passageway within which the Plaintiff was moving was not particularly wide (about 1 metre). The flow of patrons within the passageway would be expected to be one way. By turning around and returning to the point of entry, a person would be walking against the flow of any patrons who had followed. The Plaintiff's evidence was that, on the night in question, there were other patrons who were entering into the passageway.
- (iv)Reasonable examination would have revealed that the ropes could be detached from the bollards via a clasp, of a conventional type, at each end (as is apparent on Exhibit 11[13]). I am satisfied that the Plaintiff did not make any reasonable examination as alleged. At one stage the Plaintiff's evidence was that “we'd made a quick attempt” to see if the rope could be unclasped from the bollard[14], but he later explained that this was on the basis of what someone had later told him. He confirmed that he made no attempt to detach the rope himself nor did he see anyone else do so[15]. The evidence of the security officers was that, when patrons changed their minds part way down the passageway, the preferred and most commonly used method of permitting them to depart was for the rope to be temporarily detached from the bollard by the use of the clasp, so that the patrons could simply walk from the entry to the exit passageway. That this was possible would have been obvious from a reasonable examination of the device. The Defendant provided sufficient security staff within She walkway area to assist patrons wanting to do so. Staff were not only stationed at either end, but also regularly patrolled the walkway[16]. They were available to assist and often did so by unclipping sections of the rope to allow people to move to the exit passageway[17]. Less frequently, patrons would take it upon themselves to unclip the ropes[18].
- (v)There were alternative exits. As observed, the preferred and most commonly used alternative was that of unclipping the ropes, usually with assistance from the security staff, to allow direct safe access to the central passageway. Another alternative was to return to the entrance although, for the reasons discussed earlier, that might not have been attractive. Another option was to proceed to the end and ask to be let out near the entrance to the bar. The Plaintiff at first claimed that one could not do so without paying a cover charge, but I do not accept that. It conflicts with the evidence of the security staff[19]. The Plaintiff accepted, in cross examination, that one could leave if, for one reason or another, a decision was made not to enter and pay the cover charge[20].
- [14]The Plaintiff attempted to explain his decision to step over the rope, rather than take one of the available alternatives, by reference to an aversion to drawing the attention of security staff. It may be noted that, notwithstanding this aversion, the Plaintiff's group had been let into the passageway by security staff, that they would have gone past further security staff, in the ordinary course, in entering the bar and that the Plaintiff's claimed aversion did not dissuade him from obtaining assistance from security staff once he was injured[21]. I am satisfied that the Plaintiff's evidence about not wanting to attract the attention of security staff was part of a process of justification, rather than a recollection of a thought process on the night in question. Indeed it appears that he did not engage in any real deliberative process of assessing options before deciding to step over the rope. His evidence was that there was only one scenario on his mind at the time and he made his decision “pretty quickly”[22]. In any event, in determining a reasonable response to the foreseeable risk, I do not consider that the Defendant was obliged to give weight to the prospect of patrons rejecting all permissible, available and reasonably safe alternatives out of fear of being noticed by security staff.
- [15]As for the Plaintiff's pleaded particulars, the following observations may be made, leaving to one side, for the moment, the broadly expressed allegation of failing to take reasonable care to ensure the Plaintiff was safe whilst on the premises:
Failing to provide safe access to and egress from the premises
- The system implemented by the Defendant provided means for the safe access to and egress from the premises both in respect of patrons wishing to proceed, in the normal way, to and from the bar and also in respect of those who changed their minds mid-way along the passageway. Persons in the latter category could, depending upon the flow of patrons behind them, return to the front of the pathway or, irrespective of the flow of patrons behind them, proceed to the entrance to the bar where they could be let out or directly access the exit pathway by unclipping the rope or asking the security staff to do so.
Implementing a system of barricade which presented a tripping hazard to the Plaintiff
- While it was possible to trip if one decided to step over the rope (the magnitude of that risk is discussed later), it did not present a tripping hazard in the sense of something the presence of which might be inadvertently overlooked by a patron. The presence of the bollards and ropes was obvious and the Plaintiff was aware of their presence. The Plaintiff confirmed, in cross examination, that he had seen the ropes and the posts immediately prior to the incident, that they were clearly visible right next to him, that he had been walking slowly and had been able to see how high the rope was and had been able to see them well in advance of deciding to step over[23].
Positioning the rope line at a height which constituted an invitation to the Plaintiff step over it
- For the reasons previously discussed, while the rope was at a height which was able to be stepped over, it did not constitute an invitation to the Plaintiff to do so.
Failing to provide the Plaintiff with any proper or adequate warnings as to the hazard presented by the barricade
- While it is true that patrons were not instructed to refrain from stepping over the ropes and were not given any specific warning about the potential hazard in doing so, neither of those measures were reasonably required. A reasonable patron attending the site would assume, as the Plaintiff himself assumed, that the Defendant would not wish them to be stepping over the rope. Further, the risk that in stepping over something one might, if not careful, trip is an ordinary and obvious risk of which a reasonable person in the Plaintiff's position should have been as aware as the Defendant.
Permitting the Plaintiff to step over the rope barricade
- The decision to step over the rope barricade was that of the Plaintiff. The decision was done without notice to the Defendant. Short of posting security staff at every section of the rope to restrain a person who, without notice, might attempt to step over (which would not have been required by the standard of reasonableness), it is difficult to see how the Defendant could have prevented the Plaintiff from stepping over the rope barricade once he had decided to do so. As Mr Taylor said, ‘You can't control everything’[24].
Failing to provide an alternative and safe exit for the Plaintiff
- There were alternative and safe means of exit for the Plaintiff.
Failing to implement a system of crowd control which would have permitted the Plaintiff to exit from the front entrance.
- The Plaintiff was not prohibited from exiting from the front entrance, although that may have been an unattractive alternative for the reasons previously discussed. There were, however, other adequate and safe alternatives for exiting.
- [16]It would have been possible to eliminate the risk by permanently removing the barriers. It was however, at least reasonable for the Defendant to implement a system, including by the installation of queue control devices, to separate and manage the flow of patrons to and from the licensed premises. As Dr Ludcke conceded, the bollards and ropes served a useful purpose[25].
- [17]It was suggested by counsel for the Plaintiff, in the course of cross examination, that a gap in the line of ropes could have been left in a section mid-way along the passageway. That would not necessarily have obviated the risk of a patron deciding to step over one of the ropes which remained, rather than proceed to the gap. Further, leaving a gap would appear somewhat inconsistent with the function of the system in separating the flow of patrons. Mr Kremar's evidence was that, in the past, having a system with gaps “always posed a problem, because there was a crowd of people distracting people waiting to leave and waiting to come in. So part of the posts being set up was to rid us of that problem[26]”. I do not consider that the standard of reasonableness required the Defendant to permanently remove the ropes or to leave a ‘gap’.
- [18]Ultimately, the Plaintiff's case on liability focused upon the Defendant's decision to install or persist with the bollard and rope queue control device instead of an alternative, but similar, device whereby the bollards are connected by a retractable strap of a uniform height at about hip level. The ‘retractable strap’ type system is also of a familiar type often seen, for example, in airports and, on the evidence of Mr Hughes, is of a comparable cost.
- [19]It has already been observed that the Defendant provided other means by which patrons who changed their minds midway down the passageway could exit without exposing themselves to the risk of injury. The Plaintiff, however, emphasised the evidence of the security officers to the effect that they were aware that some patrons nevertheless exposed themselves to risk of injury by stepping over the ropes. The reasonable response, in those circumstances, was said to be the adoption of a different queue control device, such as the retractable belt style, which presented a greater obstacle and deterrent to those patrons.
- [20]The increased minimum height of the ‘retractable strap’ system would present a greater obstacle and be perceived by patrons to present a greater obstacle, to stepping or jumping over it. It would also be able to be ducked under. It's use would likely decrease the number of patrons who would choose to attempt to step over the barrier. The evidence however, does not establish that the ‘retractable strap’ system would be devoid of foreseeable risk for those patrons who decided to negotiate the barrier without retracting the belt, by stepping or jumping over it (notwithstanding its greater height) or by bending down and ducking under it. It is foreseeable that patrons who adopt the short cut of negotiating the barrier without detaching it, will expose themselves to some risk of injury with either system. This is discussed further in the context of Dr Ludcke's evidence.
- [21]Even if it were accepted that there was some reduction in overall risk associated with the ‘retractable strap’ type system, that would not necessarily be determinative of the question of liability. A Defendant is not liable simply because premises could have been made somewhat safer. The issue is as to the content of the reasonable response to the foreseeable risk of injury.
- [22]In determining the content of the reasonable response, it is appropriate to have regard to all of the circumstances including the magnitude of the risk of injury associated with the subject system as well as any risks associated with the suggested alternative. While incidents of patrons stepping over the rope were not rare[27], all that was required, in doing so, was for a patron to negotiate something which was observable and obvious set at a height which presented no great difficulty. While the risk of injury caused by tripping was foreseeable and foreseen and while I accept that possible inadvertence or carelessness on the part of patrons ought be given some weight, the magnitude of the risk appears to be relatively low, at least for those exercising some reasonable care in attempting to step over the rope. That is consistent with Mr Kremar's evidence that, despite witnessing patrons stepping over the rope on other occasions, he was unaware of any other persons having injured themselves in the process.
- [23]The Defendant also adduced evidence from Mr Hughes, whose business manufactures and supplies queue control systems of this type. His evidence was that, despite supplying the system for 15-20 years for use in a range of locations, including at driver testing centres and at Expo 88, he has received no complaints. I have not put weight on that evidence however, since incidents of injury from trip and fall events might not necessarily be reported to Mr Hughes and the circumstances in which the system has been used elsewhere might differ.
- [24]Taking into account all of the circumstances, including the reasonableness of maintaining a queue control system, the magnitude of the risk associated with the bollard and rope system, the provision of adequate, safe and convenient alternatives and that the suggested alternative system would itself be associated with foreseeable risk (discussed further below), my conclusion is that the Plaintiff has not established a breach of the Defendant's duty of care in adopting or persisting with the decorative rope barriers.
- [25]The Plaintiff adduced evidence, said to be of an expert nature, from Dr Ludcke of the Intersafe Group Pty Ltd. Dr Ludcke had not inspected the subject premises nor the subject bollard and rope system[28]. He worked from a photograph and a sketch provided to him. He had not conducted any formal studies into the use of queue control mechanisms of this type[29]. His report, entitled “Short Report” set out assumed facts, on the basis of his instructions and applied a process of reasoning to reach a conclusion. Some of the facts assumed by Dr Ludcke are at odds with the evidence.
- [26]Dr Ludcke assumed that, if Mr Lynch had continued on to the end of the passageway, he could not have simply exited without paying a cover charge. He also assumed that the Plaintiff had tried to uncouple the rope to create a gap in the barrier to walk through, but could not do so and “so he decided to step over the barrier”. Each of those assumptions is contrary to the facts as found[30].
- [27]Having made some observations about the incidence of and costs resulting from, people falling in the community generally, Dr Ludcke, in his “discussion” advanced the proposition that it is foreseeable that someone might take a short cut by stepping over something which is “climb over-able” particularly if alternative means of exit are congested or provide a financial deterrent. In so reasoning, Dr Ludcke called in aid the “affordance” theory and the “general adaptive” model for predicting human behaviour. He described the model as a psychological description of what people call common sense[31]. Dr Ludcke is not himself a qualified psychologist. It was submitted, on behalf of the Defendant, that Dr Ludcke's report, in its entirety, should not be admitted as expert evidence. It is unnecessary for me to reach a concluded view on that.
- [28]The conclusion that it was foreseeable that some patrons would and, to the Defendant's knowledge, did attempt to step over the rope, is established by the evidence otherwise. There is no need to rely on Dr Ludcke's report in that regard.
- [29]The Plaintiff placed reliance on Dr Ludcke's report in relation to counter-measures. Dr Ludcke's evidence was that it would have been preferable to “avoid people unnecessarily stepping over and around objects in their path of travel[32]” by using barriers of such a height that “people's original perception is that this is too high, I cannot step over it” so that “the affordance would be that they move underneath... at a lower risk of a trip or fall type accident. Alternatively, if the barrier could disconnect and the person move through to the other side, and reconnect it, then this avoids the necessity to go either over it or under it”[33]. In that regard his report recommends as follows:
“Hence, it is recommended that these modifications could have been made to avoid this incident:
- install barriers that can be readily uncoupled by patrons to access the exit walkway if they change their mind and decide not to enter the facility;
- install barriers that are of sufficient height (i.e. about hip height) to provide a deterrent for people wishing to step over them. This also enables sufficient clearance for people to move under the barrier at reduced risk to climbing over.
An example of such a barrier design is the retractable seat belt type barriers used to create queuing lines in airports.”
- [30]In his evidence-in-chief, extracted above, Dr Ludcke described those measures as alternatives[34]. On the evidence, the Defendant's system did incorporate one of those alternatives, namely, that the barriers could be readily uncoupled to access the exit walkway. This alternative obviated the need for patrons negotiating the barrier to become subject to risk from either stepping over or ducking under it.
- [31]As to the other alternative, Dr Ludcke's statement about the “reduced risk” for people moving under the barrier rather than climbing over it was described in his oral evidence, as “a lower risk of a trip or fall type incident”[35]. The terminology suggests an acceptance that there is risk associated with the higher barrier.
- [32]It may be accepted that, by increasing the minimum height of the barrier to about hip height, some of those who decide to negotiate the barrier, rather than detach it, will move under it, and that there is likely to be a decrease in the incidence of patrons stepping or jumping over it. That accords with common sense. The magnitude of that decrease is, on the evidence, indeterminate. It is however, still foreseeable that some patrons might expose themselves to risk of injury by attempting to step or jump over the higher barrier. It is unknown whether the Plaintiff would have done so. The increased height of the barrier would logically present an increased obstacle and increased risk of trip and fall for those patrons. It is also foreseeable that those who would take advantage of the increased barrier height to bend or crouch down and duck underneath it, may suffer injury by, for example, stumbling in the course of attempting to do so. It might be that those injuring themselves in stepping or jumping over the higher barrier, or attempting to duck underneath it, would wish to complain that, had the lower barrier been in place, they would have been able to step over it without great difficulty and thereby avoid injury.
- [33]Dr Ludcke's report does not contain a persuasive or detailed assessment of the magnitude of relative overall risks associated with the different system[36]. This is perhaps unsurprising, given the limited nature of Dr Ludcke's “Short Report”. It is difficult however, on the evidence, to draw a conclusion that the retractable belt alternative would have presented a significantly lower overall risk of injury.
- [34]Dr Ludcke's report, even if admissible, would not alter my conclusion that the Plaintiff has failed to establish a breach of the duty of care. The report relies on facts, some of which are contrary to the evidence; recommends alternatives, one of which is adopted in the Defendant's system, and fails to persuade me that the other alternative is either risk-free or of such a lower overall risk as to require the Defendant, acting reasonably in the circumstances otherwise discussed, to have discarded the detachable decorative rope option in favour of the ‘retractable belt’ system of barriers.
- [35]Since this matter was first argued, the High Court has delivered judgment in Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19. Counsel made further written submissions in that regard. The case concerned injuries sustained by a female who, in the course of making a daily truck delivery to a Woolworths store, tried to move, by hand, an empty industrial waste bin. At that time the bin presented an obstacle to any delivery vehicle seeking access to the loading dock. Both the waste bin and the risk of injury were known to the Plaintiff, who had previously complained to Woolworths that the bins were too heavy for her to move. The Plaintiff could have called for assistance from the Defendant's staff, but did not do so. The Defendant, nevertheless, was found liable.
- [36]Delivery drivers were required to make deliveries according to a schedule. Time was a matter of some importance. The Trial Judge found evidence of significant delays in the past on the part of storemen in responding to a delivery driver pressing a “buzzer” to call for their attention. While the Defendant's employees would move bins if asked to do so, there was no procedure whereby they would always do so promptly or which established that they, and not the delivery drivers, were to clear the access to the loading dock. The Trial Judge found that there was a reasonable concern on the part of the Appellant that she would be delayed for a significant time if she did not move the bins herself. He also found that employees of the Defendant, for their own benefit, were prepared to let delivery drivers move the bins rather than do the job themselves. In practice, the Defendant's employees either moved the bins themselves or left it to the delivery drivers to move the bins for them, according to the convenience of the Defendant's employees and any other demands upon their time and attention. The Defendant knew that, frequently, delivery drivers would move the bins even though not all drivers were capable of doing that without risk of injury.
- [37]The magnitude of the risk of injury to the Plaintiff was high and the Defendant was found to have breached its duty of care to do what was reasonable to avoid the risk of injury from the Plaintiff attempting unassisted to move the bins. The Plaintiff's damages were reduced by one-third on account of contributory negligence.
- [38]As in Thompson's case, the subject case involves an obvious risk associated with doing what the Plaintiff did, but one which, to the knowledge of the occupier, was taken by some people from time to time. Thompson case is however, distinguishable on its facts.
- [39]The magnitude of the foreseeable risk of a minority of patrons stepping over an obvious rope, set at a height which presented no great difficulty is of a lower order than that of a female manually moving an industrial bin which, as she had previously complained, was too heavy for her.
- [40]Unlike in Thompson's case, the Plaintiff in this case had the option of quickly and safely removing the obstacle himself (by unclipping the rope). The Plaintiff in Thompson's case could not have safely moved the industrial bins herself. In this case the Defendant's system involved the presence, in the walkway area, of security staff available to give prompt assistance to patrons. The plaintiff in Thompson's case would have had to press a buzzer and wait for up to 10-15 minutes for assistance. The availability and attitude of the employees of the Defendant in this case, in providing assistance to those wishing to exit the passageway, stands in contrast to that in Thompson's case. In Thompson's case the area was not wide enough for the Plaintiff, or any other delivery vehicle seeking access to the loading dock, to do so without the bin being moved. Removal of the bin was the only option and the defendant was found to have no system for that purpose. In this case, the rope presented an obstacle only for those who decided to change their minds part way along the passageway and who attempted to immediately get out of the passageway by stepping over the rope without availing themselves of one of the available and safe alternatives which were afforded by the system adopted by the Defendant.
- [41]In Thompson's case, the expert identified two alternative measures to address the risk, namely, the elimination of any manual handling of the bins, by providing truck access to the bin storage area through the car park or, alternatively, effective procedural controls to ensure that the Defendant's employees relocated empty bins and that delivery drivers were instructed not to move them. Either would have obviated risk but the Defendant, in that case, had done neither. In this case it was not unreasonable for the defendant to continue to have barriers strung between bollards to control the flow of patrons. The Defendant's system of barriers did adopt one of the two recommended measures by Dr Ludcke (namely, use of barriers which could readily be uncoupled). Further, the other alternative (the retractable belt device) would also have involved foreseeable risk for those choosing to ‘short cut’ by negotiating the barrier without retracting the belt.
- [42]Thompson's case does not dictate that there should be an adverse finding against the Defendant in this case.
- [43]My conclusion on liability makes it unnecessary for me to consider the issue of contributory negligence. I will, however, assess quantum on a precautionary basis.
Quantum
- [44]As a result of his accident the Plaintiff dislocated his right knee. There were no fractures. He was in a brace for about a month before being mobilised on crutches for approximately four months. He underwent physiotherapy. The injury took time to settle. He has no residual restriction of movement but continues to suffer pain, particularly in times of cold weather or when undertaking an activity such as squatting. I accept the Plaintiff's evidence concerning his pain and suffering. I assess general damages at $35,000, with interest, on half that amount, at 2% for 4½ years.
- [45]By reason of his injuries, the Plaintiff was unable to undertake his employment. He seeks $31,104 on the basis that, but for the injury, he would have continually remained in full time employment for 127 weeks. The Defendant submits that this amount should be discounted by 15% to take account of the contingency that his employment may not have been continuous in any event, particularly given what was referred to as his “chequered employment record prior to the accident”. On behalf of the Plaintiff it was submitted that there was no reason for so discounting, given the Plaintiff's evidence that his existing employment with a scaffolding business, which continues in operation to this day, was not at risk. While I accept that the Plaintiff's job security was reasonably high, I nevertheless, consider that it is appropriate to make some modest discount on account of contingency. I adopt 5% in this case.
- [46]The Plaintiff's ongoing difficulties mean that he is likely to suffer future economic loss. While he has a full range of movement, his continuing difficulties led each of Dr Pentis and Dr Morris to acknowledge his future problems with work involving tasks such as squatting or climbing. I accept the Plaintiff's evidence as to the effect which his condition has had on the attainment and performance of his work. Counsel for the Plaintiff points to the fact that the Plaintiff is a young man with many years of work in his future which might be affected adversely by his injury. The Defendant points to previous dislocations which the Plaintiff had with respect to his left knee and Dr Pentis' concession that “He would get problems with his left knee, yes” to submit that he may, in any event, have had difficulty pursuing work involving a lot of squatting or climbing. I accept that the Plaintiff was subject to that risk in relation to his future employment and have taken that into account. I assess future economic loss, on a global basis, at $40,000.
- [47]The Plaintiff claims past gratuitous care in the amount of $7,128, calculated by reference to the agreed rate of $16.50 per hour. That claim is, I am satisfied, excessive, having regard to the evidence of the Plaintiff's father in cross-examination. I would assess past gratuitous care in the amount of $2,739, calculated, in accordance with the Defendant's submissions, by reference to three hours of assistance per day for the first six weeks and four hours per week for the following 10 weeks.
- [48]The Plaintiff claims future medical expenses and future care on the basis that he will undergo an arthroscopic lateral release which Dr Morris had said may be of benefit if his symptoms persist or become worse. The Defendant submits that the Plaintiff's claim, in this regard, should be discounted by 50% on account that such future surgery is only a possibility. On the Plaintiff's evidence which, in this respect, I accept, the symptoms are persisting and that he would “love to have it” done subject to being financially able to do so. It is, I am satisfied, a probability rather than a possibility in the event that the Plaintiff received an award of damages which permitted him to finance the procedure and I would make the allowance claimed by the Plaintiff.
- [49]For the above reasons I assess quantum as follows:
Pain and suffering and loss of amenities | $35,000.00 |
Interest on past pain ($17,500) @ 2% p.a. for 4.5 years | $1,575.00 |
Out-of-pocket expenses (as agreed) | $200.00 |
Past economic loss ($31,104 less 5%) | $29,548.80 |
Interest @ 5% p.a. for 4.5 years | $6,648.48 |
Loss of employer-funded superannuation (@ 7% on 50% of past economic loss for 4.5 years) | $4,653.94 |
Future economic loss | $40,000.00 |
Past gratuitous care | $2,739.00 |
Interest on past care (@ 9% p.a. for 4 years and 1 month[37]) | $1,006.50 |
Future care | $4,158.00 |
Future medical expenses | $7,000.00 |
TOTAL: | $132,529.72 |
Footnotes
[1]1 T14 120
[2]2 Romeo v Conservation CMN (1998) 192 CLR 431 per Hayne J at [155], [156]
[3]3 Romeo v Conservation CMN (supra) per Kirby J at [128]
[4]4 Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19 at [36]
[5]5 See amended Statement of Claim para. 5(a) and Reply para. 4(a)(ii)
[6]6 Amended SOC para. 5(b) and Reply para. 4(a)(iii)
[7]7 Amended SOC para. 6(e) and Reply para. 4(a)(iii)(V)
[8]8 Reply para. 4(a)(iii)(IV)
[9]9 Reply para. 4(a)(iii)(III)
[10]10 See T140 lines 36-39 and T145 lines 1-5
[11]11 T14 line 43
[12]12 T45 lines 30-49
[13]13 Taylor T110 line 55 - T111 line 15
[14]14 T36 lines 12-15
[15]15 T60 lines 47-T61 line 1
[16]16 Taylor T107 lines 23-37. I accept Mr Taylor's evidence that he was in the vicinity of the Plaintiff at the time of the incident, although he was not feeling the Plaintiff and the Plaintiff appears not to have noticed him.
[17]17 Taylor T104-106, Morris T136 lines 5,20-30, Kremar T143
[18]18 Kremar T143 line 10; Morris T129 line 55
[19]19 Morris T129 line 50
[20]20 T62
[21]21 Mr Kelly spoke with him about calling an ambulance T150 lines 1-10
[22]22 T65
[23]23 T61
[24]24 T107 112
[25]25 T34 see also Taylor T106
[26]26 T140 line 52-T141 line 3
[27]27 Taylor T116, 11 26-50, Morris T132 115-18, Kremar T143 112, T146 115
[28]28 11 1-5
[29]29 T31 1 10
[30]30 Dr Ludcke also assumed that the lowest point of the rope barrier was in the range of 400-600mm above the ground. The evidence that it was just above knee height would seem to render unlikely at least the lower end of that range. It is more likely to have been at least of the order of 600mm, although, at that height, I accept that the barrier was able to be stepped over without great difficulty.
[31]31 T30 140
[32]32 T27 - 28
[33]33 It should be noted that the rope is not in the ‘path of travel’ ofpatrons unless they decide to change direction and negotiate the barriers.
[34]34 T28 15
[35]35 T28 113-4
[36]36 noting also that Dr Ludcke was acting on the assumption that the rope system in place was not readily detachable
[37]37 The gratuitous care allowed was for the first 16 weeks post-accident. Interest at 9% per annum has been allowed for the period following that 16 weeks, rather than at 5% per annum since that date of accident as submitted by the Defendant