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  4. Spencer-Knott v Reichhold Investments Pty Ltd & Ors - [2008] QDC 337

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Spencer-Knott v Reichhold Investments Pty Ltd & Ors[2008] QDC 337

Spencer-Knott v Reichhold Investments Pty Ltd & Ors[2008] QDC 337

DISTRICT COURT OF QUEENSLAND

CITATION:

Spencer-Knott v Reichhold Investments Pty Ltd & Ors [2008] QDC 337

PARTIES:

Laura Sherryl Spencer-Knott

(Plaintiff)

v

Reichhold Investments Pty Ltd

ACN 078 915 278

And

Reichhold Enterprises Pty Ltd

ACN 078 915 278

And

Adriano Pozzebon

And

Celeste Pozzebon

And

Franco Pozzebon

And

Octavio Pozzebon

And

Domenica Pozzebon

(Defendants)

FILE NO/S:

D313/04

PROCEEDING:

Civil

ORIGINATING COURT:

District Court, Townsville

DELIVERED ON:

2 September 2008

DELIVERED AT:

Townsville

HEARING DATE:

21 and 22 April 2008

JUDGE:

Durward SC, DCJ

ORDERS:

  1. Judgment for the defendants.
  2. The issue of costs subject to submissions from the parties within 28 days or otherwise as ordered thereafter by the court.

CATCHWORDS:

PERSONAL INJURIES – Plaintif fell when she missed her footing whilst stepped at a kerb from a concrete walkway to a bitumen driveway out at a shopping centre.

DUTY OF CARE – whether the risk of injury was foreseeable – what a reasonable occupier would have done in circumstances that existed before the incident.

ASSESSING DUTY OF CARE – whether the analysis is by use of hindsight or prospectively. Whether the defendants breached their duty of care.

KEEPING A LOOKOUT – whether the plaintiff was looking where she was going and taking care for her own safety – whether the kerb and height difference was discernable where the two surfaces were contrasted, one white concrete and the other black asphalt.

CITED CASES

Wyong Shire Council v Shirt [1980] 146 CLR 40;

Neindorf v Junkovic [2005] 227 ALR 631;

Casthe v Weekes [1999] QCA 450;

Thompson v Woolworths (Qld) Pty Ltd [2005] 8;

Chantons v Hawkesbury City Council [2001] 75 ALJR 992; Lynch v Kinney Shoes (Australia) Ltd & Ors [2005] QCA 326;

Ibrahim v Myer Queensland Stores Ltd [1996] QSC 116,

Davis v B1 Gaming Corporation [2004] QDC 019;

Ownersof Strata Plan 63477 v Ross [2005] NSWCA 162;

Pascoe v Coolum Resot Pty Ltd [2005] QCA 354;

Ellis v uniting Church in Australia Property Trust (Q) [2008] QSC 74;

Derek v Cheung [2001] 33 MVR 393

COUNSEL:

Mr GW Diehm for the plaintiff

Mr SC Williams QC and Mr M Cresswell for the defendants

SOLICITORS:

Kelly & Agerholme for the plaintiff

Jensen McConaghy for the defendants

FACTS

  1. [1]
    The plaintiff was injured in a fall at the defendant's Mountview retail shopping centre (“the premises”) on Bamford Lane, Kirwan in Townsville on 3 August 2001.
  1. [2]
    The premises relevantly comprised a supermarket store accessed by a main entrance from the Mill Drive side of the premises and several retail stores including a hardware store accessed from an outside walkway adjacent to the car park on the Bamford Lane side of the premises.
  1. [3]
    After ordering a purchase of goods at a hardware store at the premises the plaintiff walked out of the store, intending to walk to her motor vehicle that was parked nearby. That course of travel required her to walk along the walkway, step down to the bitumen driveway car park level and then proceed to her motor vehicle.
  1. [4]
    There was a colour difference between the walkway (pale concrete) and the driveway/car park (dark bitumen) and the surface level dropped vertically 80 millimetres from the walkway to the bitumen surface.
  1. [5]
    The plaintiff stepped from the concrete walkway onto the bitumen driveway and fell to the ground, suffering personal injury including a fractured left hip.

THE LIABILITY ISSUE

  1. [6]
    The plaintiff alleges that the height difference from the walkway to the bitumen constituted a trip hazard to pedestrians and that the defendants negligently failed to warn her of the presence of the hazard.
  1. [7]
    The defendants deny the allegations and say that they exercised reasonable care and took reasonable precautions for the safety of the plaintiff. They say the difference in height was obvious to any person taking reasonable care for his/her own safety and that the plaintiff ought to have known or have been aware of its existence.

THE PREMISES

  1. [8]
    The premises were constructed in or about 1979 and had planning approval as a shopping centre. The defendants bought the premises in about 1988. A supermarket tenant had left the premises sometime after this and the space it previously occupied was altered to provide retail store space for several shops, including the hardware store on the Bamford Lane side of the premises. These shops were not accessible from inside the premises and each had a separate entrance opening directly onto the outside walkway.
  1. [9]
    The walkway width was about 1245mm. The main entrance to the shopping mall inside the premises was accessed on the Mill Drive side by a ramped surface connecting the bitumen to the entrance apron, which was about the same height as the walkway.  This work was carried out by the defendants to allow access for pedistrians and shopping trolleys to and from the carpark.
  1. [10]
    Another entrance to the premises was located on the Bamford Lane side by a narrow ramp.  This appeared to have been used as an entrance for a specific activity (a bingo hall) in one of the retail store areas. 

STATEMENT OF CLAIM

  1. [11]
    The plaintiff's statement of claim sets out five particulars of negligence, as follows:

“4.     The plaintiff's personal injury, loss and other damage were caused by the negligence of the defendants, their servants or agents, particulars whereof are as follows:-

(a) Causing, permitting or suffering the construction of the said concrete pathway and bitumen driveway with a height differential of approximately 80mm which constituted a trip hazard to pedestrians when a reasonably prudent person would not have done so;

(b) Failing to remove the height differential between the said concrete walkway and the said bitumen driveway when a reasonably prudent person would have done so;

(c) Failing to warn the plaintiff of the presence of the said height differential, which constituted a trip hazard, when a reasonably prudent person would have done so;

(d) Failing to take all reasonable precautions for the safety of the plaintiff in the circumstances;

(e) Exposing the plaintiff to a risk of injury or loss of which the defendants knew or ought to have known.”

DEFENCE

  1. [12]
    The amended defence of the defendants was expressed as follows:

“3.   The defendants deny the allegations made in paragraph 4 of the statement of claim which are untrue.

PARTICULARS

(a) The height differential between the concrete pathway and the bitumen driveway did not constitute a trip hazard to pedestrians.

(b) The exercise of reasonable care on the part of the defendants did not require them to remove the height differential nor to warn the plaintiff of the presence of the height differential.

(c) The defendants took reasonable precautions for the safety of the plaintiff and did not expose the plaintiff to a risk of injury or loss which was unreasonable in the circumstances.

(d) The presence of the said height differential was obvious to any reasonable person taking reasonable care for his/her own safety;

(e) The presence of the said  height differential was known to the plaintiff or ought to have been known to her.

(f) No reasonable person in the defendant's position would have taken steps to eliminate the alleged trip hazard because:

  • The premises, including the height differential were constructed in or about 1979;
  • Council approval was obtained for the use of the building as a shopping centre on or about 12 October 1979;
  • In the period from the date of approval for use of premises as a shopping centre to the date of the plaintiff's alleged accident, the defendants had not been informed of any incident or of any complaint arising from the said height differential despite the use of the premises by millions of patrons over that period;

iv. The height differential was obvious upon casual inspection.

v. The height differential and the transfer from concrete walkway to asphalt was obvious due to the significant colour change between those surfaces;

vi. The plaintiff knew from visiting the premises that a raised concrete walkway existed outside the premises, and in particular outside the True Value hardware store.

vii. On the 3rd day of August 2001 immediately prior to the accident alleged in the statement of claim the plaintiff had:

  • Parked her vehicle in the Bamford Lane car park immediately adjacent to the walkway;
  • Walked from the car park onto and over the walkway to enter the premises;
  • Exited the premises and walked along the walkway along the length of the premises to re-enter the premises and the True Value Hardware store;
  • Exited the True Value Hardware Store to cross the walkway to return to her adjacent motor vehicle in the car park.

(g) If the height differential did constitute a reasonably foreseeable risk (which is denied), the defendants acted reasonably in not acting in respect of that risk because:

  1. Any reasonably foreseeable risk of injury was slight taking account of the defendants’ experience in operating the shopping centre over a period of approximately 22 years and the lack of complaint or occurrence concerning the height differential over that period.
  2. The removal of the height differential was not reasonably required and could not be achieved without creating risks of occurrences with similar or equal or greater magnitude and injury potential;
  3. The defendant had Council approval to use the premises as a shopping centre in the condition in which they were on 3rd day of August 2001;
  4. It is common experience in usage that pathways, such as those which border the premises, may be and usually are at different levels to adjacent roadways and parking areas;
  5. Any person taking reasonable care for his/her own safety would have observed and safely negotiated the height differential.”

REPLY

  1. [13]
    In her reply the plaintiff stated that she did not know of the height differential and that it was not obvious; that she had attended the premises on one previous occasion and had used the main entrance to enter and exit it; that on the day of the accident she did not walk over the walkway to enter the premises but rather entered through the Mill Drive entrance.

THE PLAINTIFFS EVIDENCE

  1. [14]
    In her evidence the plaintiff said that she had been to the shopping centre previously about two years before the date of the accident. On the date of the accident she parked her car in the car park on the Bamford Lane side of the premises, facing the external footpath.  She left her vehicle and walked across a grass verge to near the external footpath to post a letter in a post box situated on the corner of Bamford Lane and Mill Drive and then, because she saw what she believed to be a girlfriend’s car parked in another area of the car park, walked over to it. She realised it wasn’t the girlfriend’s car and she walked into the Mill Drive entrance.  She thought that she could enter the hardware store through the internal shopping mall but could not do so.
  1. [15]
    She therefore left the mall area through the same entrance and walked on the walkway up the side of the premises to where the hardware shop entrance was. She went into the hardware store and placed an order for a purchase of goods and then exited the hardware store, carrying a shoulder handbag, through the same door that she had entered.
  1. [16]
    Her vehicle was parked in the car park to the right of the hardware store entrance. She walked out of the door to head in the direction of her vehicle and she “looked at my car, then I looked at the entrance to the roadway, saw there were no cars coming and proceeded to walk towards my car.” She then described the sensation that she next felt: she stepped into a space where nothing was there - “my right foot was on the ground, my left foot was in the air.” She next recalled being on the road and being assisted by other persons.
  1. [17]
    The plaintiff said she had not noticed the height difference between the walkway and the road surface and that there were no yellow lines or markings at all in the vicinity of the concrete walkway. The evidence was that since the accident a 100 millimetre wide yellow stripe was painted down the edge of the walkway where it met the bitumen roadway and subsequent work on the bitumen area had reduced the height differential to about 40 millimetres.
  1. [18]
    The plaintiff said that elsewhere in Townsville she had never encountered a single step up from an asphalt car park area to a walkway, to her knowledge. She acknowledged that there was a colour differential between the surface of the driveway and the walkway and that it was distinct. She agreed that she had walked out of the door to her right and walked along the walkway for a short distance and then turned to leave the walkway and step onto the bitumen. It was at that point that she fell.
  1. [19]
    The plaintiff denied ever tripping or slipping. She maintained that “I was walking and I’ve always stated I was walking, and suddenly I was walking in air into a hole.” She maintained this account in spite of several potentially inconsistent statements made on previous occasions. These were put to her in cross-examination, as follows:
  • In the notice of claim which she had signed, it was stated that she “tripped on the edge of the walkway.”
  • In August 2001 at the Townsville General Hospital she told staff that she “tripped on the edge of a stair” and “fell down a single stair”.
  • To podiatrist Tony Pascoe she said that the injury occurred when she “slipped off pavement in a shopping centre”. The medical record shows that statement having been made in October 2002.  I note that that record also contains a description given to occupational therapist, Ms Seaman in October 2002, in these terms, “fell off the pavement”.
  • To Dr Steadman she said that she was “looking out and around for her car and looking at the ground at the same time but momentarily missed her stepping and fell”.  The medical records show that statement was made in October 2006. The plaintiff said she didn’t remember making that statement at all.
  1. [20]
    The implication in respect of these statements are that her account was merely being expressed in a way that could describe the event and that the notes reflected the makers understanding of what she had said. It seems to me that it does not matter whether the event is described as a trip or stumble or mis-step. The fact seems to be that the plaintiffs left foot did not come into contact with a firm surface as she expected it would.
  1. [21]
    The plaintiff said that at the time she stepped into nothing she was looking at her car. She agreed that as she walked along the walkway she observed that it was a walkway adjacent to an area where cars were driven.

THE DEFENDANT MR REICHHOLD

  1. [22]
    The evidence of behalf of the defendants was given by Hans Reichhold, who was a director of Reichhold Enterprises. When the defendants bought the centre in 1988, Woolworths were the supermarket tenant and they moved out some years later. He said that the walkway had always existed as it was. However, changes were made to the main entrance at Mill Drive with a ramp section being built.  He confirmed that the shops along the Bamford Lane side of the premises did not have any ramp but had their own doorway out onto the walkway.  He agreed that the entry and exit points to the premises at every other area, save for those shops on the Bamford Lane side, had the concrete pavement at the same level as the asphalt surface.  He agreed that at the time of making the alterations to create the shops on the Bamford Lane side of the premises it would have been possible to taper the concrete to meet the asphalt surface. 
  1. [23]
    He confirmed that the painted yellow line was applied after he had learned of the accident, saying, “…it wasn’t necessary but I thought we’ll do it, give it a bit more visibility.” He said that anyone who had walked along the walkway previously would have seen the difference in colour between the walkway and the asphalt surface. He confirmed that the first he knew of the accident having occurred was when a solicitor’s letter was received. There was no incident report kept and the implication is that he was never informed of the accident by the person employed as the on-site manager of the premises. He said that before the accident occurred he had not turned his mind at all to the risk there might be for people walking out of the hardware store to cross the car park. In re-examination he qualified this response by saying that this was because of the different colours and that people could see this when walking out from one to the other. In so far as the ramp to the main entrance was concerned, it was altered so that people could get their trolleys in and out and that it was just normal procedure.

THE EXPERT EVIDENCE ISSUE

  1. [24]
    Expert evidence was called by both parties: Mr Geoffrey McDonald for the plaintiff and Dr Frank Grigg for the defendant. In the course of the trial I was asked to rule on the admissibility of the opinions expressed by Mr McDonald.
  1. [25]
    Mr Williams QC objected to the basis of the opinion evidence which Mr McDonald gave in his report on the basis that Mr McDonald was analysing the case with hindsight, by identifying relevant features as causes of the accident and seeking to identify measures that could have been implemented to avoid the event. He submitted that the proper approach was to analyse the evidence prospectively, without regard to hindsight and to identify what was reasonable to deal with the risk in the circumstances of this case. Mr Williams QC also submitted that this case did not involve a trip and fall or slip and fall and there was nothing which required any expertise. Mr Diehm for the plaintiff submitted that Mr McDonald offered expert opinion on issues pertaining to peripheral vision, directed to what might have been observable by the plaintiff as she came out of the hardware store, within her range of vision. That was the nature of the expert evidence on which he was relying.
  1. [26]
    The extent of the “expert” evidence here appeared to be in two parts: Firstly, the application of Mr McDonald’s expertise in human reaction in the context of visual awareness of the existence of the kerb and the adequacy of the cues as to assessing the risk and dealing with it; and secondly a consideration of what might have been done to reduce or eliminate the risk.
  1. [27]
    The line between hindsight and prospective analysis is very fine. However, the weight of authority seems to favour the latter analysis, namely: did the occupier exercise reasonable care for the safety of a person who is taking reasonable care for his/her own safety? See Ghantous v Hawkesbury Shire Council [2001] 206 CLR 512; and other cases cited in this judgment in respect of duty of care.
  1. [28]
    Mr Williams QC submitted that there was nothing in the circumstances of the case, where the plaintiff fell – whether by tripping, slipping or simply mis-stepping – at the kerb, down from a single step between a white concrete pathway to a black asphalt driveway, that called for any expert opinion.
  1. [29]
    I formed a different view: Mr McDonald could potentially assist the court with respect to the exercise of reasonable care by the occupier, in the prospective sense and in the context of both parts of his expertise to which I have referred, subject to this caveat: I am not assisted by any ‘hindsight’ analysis, to the extent that this can be distinguished in this case from a prospective analysis of the duty of care.
  1. [30]
    I ruled on this application in the course of the trial and before the experts gave their evidence, in the following terms. In effect I distinguished this case from others that have been the subject of judicial authority and referred to the plaintiff's evidence that she felt the sensation of her left foot being suspended in air, there being an implication that she expected it to be in contact with something firm at that moment in time. I expressed the view that on the face of things the case seemed to involve issues such as peripheral vision and awareness upon which Mr McDonald could give opinion evidence and that I would consider that matter further after the evidence had been adduced. I ruled against the objection.
  1. [31]
    In so far as “peripheral” vision is concerned, the plaintiff seems only to say that she stepped into air whilst looking for traffic on the driveway as she walked in the direction of her parked motor vehicle. The issue is whether the height differential was discernible to a reasonable person who was taking car of his/her own safety. In other words, was there a risk created by the height differential?
  1. [32]
    Mr McDonald is a consultant in the fields of accidents, ergonomics and other behavioural design with tertiary qualifications and experience in engineering and psychology. He regularly provides reports and gives testimony in respect to litigation involving events that cause bodily injury. It seemed to me that his evidence was based on relevant expertise and the opinions and the opinions he expresses did not necessarily involve hindsight.

MR MCDONALD’S EVIDENCE

  1. [33]
    Mr McDonald’s report canvassed the factual circumstances, in respect of which no objection was taken by Mr Williams QC. He dealt with the theoretical assumptions about persons falling and referred to some statistical information which says that falls on stairs represent a significant injury problem. The fall here was not on a stair, of course, but rather on a step with a relatively short riser from the surface above to the surface below. Mr McDonald acknowledged this and classified the fall as one involving a step down to a different level.
  1. [34]
    In analysing the plaintiff's fall, he referred to there being no “cue” that would alert the pedestrian to the presence of the change of level. He thought that the relevant change of height was not strictly a “step” but that the general principles nevertheless applied. He said that the change in height resulted in the plaintiff losing control of her walking and the loss was a result of her being unaware of the change in height.
  1. [35]
    His assessment of the premises was that in a number of places at the premises appreciable changes of height had been eliminated by ramping. He considered the issue of kerb ramps at the entry points to the shops that were accessed from the walkway on the Bamford Lane side of the premises.  He thought that the walkway would have to be wider to accommodate a kerb ramp that was inset into the walkway, because there would otherwise be insufficient unramped space left for the passage of people (and inferentially trolleys).  He also considered building ramps out from the kerb and considered that it would require a width of some 850 millimetres, not only out from the footpath but along the length of the footpath so that there was not a steep slope or further edge created.  Whilst he had not measured the width of the carriageway beyond the kerb to the area where parked vehicles would be located, he thought that there was sufficient width of carriageway from reference to photographs.
  1. [36]
    Mr McDonald also looked at reducing the likelihood of the fall by providing visual identification of the change in height so that it became visually conspicuous. He also canvassed a number of other options including the use of railings, a continuous slope and bollards and distinctive markings. He concluded that the yellow marking of a kerbed edge was not really an effective visual cue, for a number of reasons, none of which are particularly relevant here.
  1. [37]
    He expressed the view that if a person was looking horizontally as they approached an edge, the edge characteristics would fall in the peripheral vision of the person, only where the black and white vision was operating. He also referred to the visual difference being obscured by shade, depending on the time of the day. I note that at the time that this accident occurred it was a fine and sunny day. Mr McDonald said the point about visual identification was the provision of something that a person would need to pay visual attention to and the interpretation of what that something was.
  1. [38]
    Mr McDonald concluded his Report in the following terms:

“Where there are different types of access to the one facility, graded access and step change access as occurs with the Mount View Plaza, the case for having strong visual information to identify the step change becomes stronger.  If reliance is to be made on the perceptual solution then a short rail section with a visually prominent colour is required, words to the effect of warning of a step down can be added.  A ramped solution is preferable if it can be fitted in together with protective rails to each side.”

  1. [39]
    Mr McDonald confirmed in cross-examination that the ramped solution was one that was required at the entrance to each of the shops along the walkway and agreed that the ramp would involve a person stepping on to a slope that was 60 millimetres from the horizontal over its length but qualified this by a comparison between a 60 millimetre expected drop from an 80 millimetre unexpected drop. He agreed that persons leaving the shop would ordinarily be keeping a look out for various things such as traffic or other persons using the walkway but iterated that in a lot of situations it was the peripheral vision of the person that required warning of things of significance. He agreed that narrowing the walkway would create a congestion point or a collision point for persons using it as would the use of rails even of a short length on either side of a ramp. He agreed that there were downsides to the solution but said there was also a small height differential between the doorway to the shop itself and the walkway outside. In so far as the encroachment of a ramp built away from the walkway into the trafficable area was concerned, he was of the view that a change from right angle parking to parallel parking in the carpark might resolve issues about the movement of vehicles, but was generally of the view that there would not be a significant interference with vehicle trafficability. Mr McDonald conceded that the use of rails might provide an opportunity for people to chain bicycles to them or to put shopping trolleys that are no longer required against them.
  1. [40]
    In so far as the difference in colour between the bitumen and the walkway was concerned, he agreed that there had been a strong colour differential in black and white between the two surfaces. He thought that rails or bollards would also have the function of preventing motor vehicles from coming closer to the shop frontages in the vicinity of the ramps.

OTHER PREMISES

  1. [41]
    The plaintiff provided reports from an investigative service ‘(Verifact)’ which conducted reviews of numerous other shopping centres in the Townsville area (about 10 in total) and other public buildings and smaller shops and other precincts. In respect of the shopping centres, those that had kerbing adjacent to car parking or carriageway areas had drops of between 150 millimetres and 180 millimetres from one level to the other. In respect of many of the other places that were investigated and photographed, the height of the relevant drop between two levels was between 85 millimetres and 210 millimetres.
  1. [42]
    The defendants’ engineer, Dr Grigg, was cross-examined fairly extensively about those variations. However, in my view the Verifact report, particularly the second report in time that reviewed smaller shopping and other precincts, simply confirmed that the type of change in surface level such as created by the kerb at the premises was common and putting to one side actual height dimensions, and regularly encountered by the public.

DR GRIGG’S EVIDENCE 

  1. [43]
    Dr Grigg is a mechanical engineer and accident investigator. He thought the kerb was essentially the same (but lower than) many kerbs found between roads and footpaths in other city locations. He observed that from a functional point of view kerbs assisted in preventing the ingress of water to adjacent premises and also to inhibit the passage of vehicles onto, footpaths. He thought the form of construction was very common.
  1. [44]
    He observed that the plaintiff did not simply walk out of the entrance and fail to notice a step down at right angles to her direction of motion but rather that she commenced walking along the walkway and then crossed the kerb towards the carpark.
  1. [45]
    In regard to the proposal by Mr McDonald for the construction of a kerb ramp, Dr Grigg said that there was an assumption inherent in that proposal, namely that a person who would otherwise fail to notice the existence of the kerb line would notice the existence of the ramp and make use of it. He did not consider that any shading of a kerb would camouflage the discontinuity between the driveway and the footpath. Indeed, he regarded the colour difference between the two surfaces as being very distinct and affording a significant delineation. In regard to the proposal by Mr McDonald that some form of railing be erected along the kerb, he thought that this would have the potential to create congestion on the footpath and potentially give rise to other types of incidents as a consequence of that congestion or by the restriction of vehicle movement into and out of the right angled car parks across the carriageway.
  1. [46]
    In cross-examination he expressed the view that creating a ramp was not necessarily desirable unless people realised that the ramp existed and that persons could fall in the transition between a flat surface and a ramp just as they could on a change in level like a step.
  1. [47]
    In regard to the use of bollards along a continuous slope was concerned, he expressed the view that persons could injure themselves by walking into bollards and he was not persuaded that that would be a better solution that what already existed with the colour delineation at the kerb between the two surfaces.
  1. [48]
    In so far as the detection of height difference was concerned, he thought that this depended to an extent upon the angle of viewing. He said that the scene of this incident wasn’t an entry point in the strict sense but that entry points did commonly have pavement at the same level as the bitumen surface. He also expressed the view that persons who had no reason to access a ramp (for example, if they were pushing a trolley) would usually take the shortest straight line between two points and that therefore persons may not necessarily use a ramp. He also felt that the right angled parking adjacent to the carriageway opposite the walkway might require vehicles to come in fairly close to the kerb to manoeuvre in order to park and to reverse out.
  1. [49]
    In regard to the difference in colour between the two surfaces was concerned, Dr Grigg though that a pedestrian ought to know that it indicated a change of level. He expressed it in these terms:

“It is a cue to the fact that there is a change in the nature of the surface and would tend to attract the possibility that there is a change of level also, particularly given that in basically stepping off a footpath onto a road which you normally expect to have a change in level.” 

  1. [50]
    Dr Grigg also referred to the fact that persons walking across a ramp sideways were walking across a slope and that the drop would be about 60 millimetres and that most people would find that destabilising.

SUBMISSIONS

  1. [51]
    Mr Williams QC repeated his position with respect to Mr McDonald’s “hindsight” analysis. He agreed that the risk here was not remote or fanciful but relied upon the analysis contained in Wyong Shire Council v Shirt (infra).  He submitted that a step like this commonly was encountered on a daily basis in a variety of ways and in a variety of situations.  The plaintiff, he said, by reference to the photographs, had crossed a vehicle stop mound from her parked motor vehicle to access the post box and had to step up from the bitumen to the grassed area and then return the same way before she moved across the car park to the main entrance of the premises. This involved movements which were as simple as stepping off a kerb.  He submitted that the risk of tripping although foreseeable was a slight risk and that there was a requirement for persons to take reasonable care for their own safety.  In so far as Mr McDonald’s proposals were concerned, he submitted that they would compress pedestrian and traffic flow and create other risks. At worst, a complete re-design of the car park would be required on Mr McDonald’s hindsight analysis and that Mr McDonald had conceded that his proposals did create other problems.  Similarly, the ramp situation also created further risks such as those that Dr Grigg referred to.  Mr Williams QC referred to the plaintiff’s evidence of not wearing her long distance spectacles, although I note that she said that she wore them for driving (and the inference is they were not neccesary for other purposes) and said that this was a simple case of the plaintiff not keeping a proper lookout and not taking reasonable care for her own safety.
  1. [52]
    Both counsel addressed the issue of the prior inconsistent statements and neither counsel suggested that they were sufficiently material on their own to inform the judgment in this matter. Mr Diehm in his submissions referred to the prospective provision of alternative cues for visibility of the height differential or to proposals for the elimination of it by a kerb ramp or a combination of the kerb ramp and railings or by the provision of a continuous slope along the length of the footpath into which bollards would be placed to prevent vehicle ingress into the pedestrian area. He referred to Mr McDonald’s evidence about human behaviour and peripheral vision. He submitted that the defendant could hardly speak about there being no other incidents when in fact he was unaware of this particular accident having occurred until a solicitor’s letter was sent to him some time later. In so far as other premises were concerned, many of them, involved little or no change to the slope and involved premises where there was only one entry or exit point so that a person would be aware, where a step was involved, of having to step up it before exiting from those premises and stepping down.

AUTHORITIES

  1. [53]
    In Wyong Shire Council v Shirt [1980] 146 CLR 40, Mason J (at 48) made the oft - cited statement about the duty of care, stated in the following terms:

“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 defendant 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”

  1. [54]
    Hence, the determination of whether or not the defendant’s have breached their duty of care to the plaintiff it is necessary to ask what a reasonable shopping centre occupier would have done in the circumstances that existed before the incident occurred. That is done by looking prospectively, rather than with hindsight, at the incident.
  1. [55]
    In Neindorf v Junkovic [2005] 222 ALR 631 (at para 97) Hayne J said the following:

“[97]  It is only when the particular event of the respondent’s stumble is known to have happened that it appears reasonable to take steps to reduce or eliminate the danger presented by unevenness in the driveway surface.  Only with that knowledge does it appear reasonable to point out or cover that irregularity.  But that is to look at the problem with hindsight.  That is not the question the statute (or the common law) presents.  That question is what would have been a reasonable response of the occupier before the accident happened.”

  1. [56]
    Does the existence of a foreseeable risk of injury require a reasonable person to take steps to eliminate the risk? As Mason J (at 48) said in Wyong Shire Council v Shirt, “… 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”.
  1. [57]
    In Castle v Weekes [1999] QCA 450 (Chesterman J) said:

“[21]  The appellant was an intelligent, able-bodied woman.  The risk in question was that posed by crossing a gently sloping grass bank for a distance of just over one metre.  A riotous imagination may foresee anything and start at shadows but it seems to be entirely right to describe what risk there was to the appellant as such that a reasonable man careful of his neighbour’s safety, might take no precautions in respect of it.”

  1. [58]
    As to what constitutes a reasonable response to a foreseeable risk, the High Court in Thompson v Woolworths (Qld) Pty Ltd [2005] 8 HCA 19 said:

“[37]  The factual judgment involved in a decision about what is reasonably to be expected of a person who owes a duty of care to another involves an interplay of considerations.  The weight to be given to anyone of them is likely to vary according to the circumstances.  If the obviousness of a risk, and the reasonableness of an expectation that other people will take care for their own safety were conclusive against liability in every case, there would be little room for the doctrine of contributory negligence.  On the other hand, if those considerations were irrelevant, community standards of reasonable behaviour would require radical alteration.”

  1. [59]
    In Ghantous v Hawkesbury City Council (supra), the High Court made it clear that generally speaking a pedestrian walking on a footpath in daylight needs to look after himself or herself and has little to complain about if he or she falls because of a slight unevenness in the surface.  Callanan J said (at para 355) that “there was no concealment of the difference in height. It was plain to be seen. The world is not a level playing field.  It is not unreasonable to expect that people will see in broad daylight what lies ahead of them in the ordinary course as they walk along.”
  1. [60]
    Such a general statement of principle can apply equally to a number of different situations. For example, in Lynch v Kinney Shoes (Australia) Ltd & Ors [2005] QCA 326, the President said:

“[11]  The duty of care owed by a shopkeeper to a customer is not a general duty to protect careless people from the consequences of their own carelessness nor is it a question of whether the safety of the shop could be improved:  Rassick v Cruz (2000) in SWCA 66 per Fitzgerald JA at [42] approved in David Jones Ltd v Bates (2001) NSWCA 233 at [17]-[21].”

 Her Honour continued:

“[14]  The risk identified by Mr Kahler did not require a response from the respondent.  People who do not look where they are going can inadvertently fall over obvious items anywhere; living is not risk free and the community does not want or expect Courts to make it so by imposing unreasonable and unrealistic standards.”

  1. [61]
    In Ibrahim v Myer Queensland Stores Ltd [1996] QSC 116, a plaintiff tripped on a step in a shopping centre.  The issue was whether there was negligence in the construction or the retention of the step.  The plaintiff had entered the shopping centre and saw two men, one of whom she was acquainted with, standing on a raised, tiled footpath close to the top of a ramp at an entrance mall which inclined from the footpath to the road.  She kept walking and held out her hand in the direction of the person whom she recognised and being so preoccupied and not looking where she was going, she tripped on a concrete step at the base of the ramp and fell. Byrne J considered that the prospect of serious injury occurring to a pedestrian inadvertently oblivious to the step, given the fact that millions of pedestrian movements over that particular entrance would have been anticipated by the shopping centre occupiers, was not either far fetched or fanciful.  However he asked and answered the following question (p 4):

“What should have been the response to that reasonably foreseeable risk?  Did reasonable care require that the ramp be built without the step, or that before 20 May 1985 something be done to get rid of it?  The answer involves ‘balancing the magnitude of the risk in 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 may exist.”

“The ramp could easily have complied with Council requirements; and it is not suggested that it would have cost more to be 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 later on when the defendant placed in-fill into the channelling to make a smooth transition between the road and ramp.  The drainage advantage afforded by the step was not significant.  As it happens, there was 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 considerations 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 is assisted in drainage and heavy downpours.”

“There were choices to be made in 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 occured in the initial inclusion of the step.”

  1. [62]
    His Honour also considered that it had not been proved that reasonable care required elimination of the step. His analysis in this case reflects the analytical considerations inherent in the formula drawn from the principle enunciated in Wyong Shire Council v Shirt. 
  1. [63]
    In Davis v B1 Gaming Corporation [2004] QDC 019, His Honour McGill DCJ dealt with a fall that occurred at the Conrad International Hotel.  The plaintiff had entered the building through the George Street entrance and after attending an event she walked back to the George Street entrance in order to leave.  As she was leaving, she missed the last step and fell.  She had been walking normally and was carrying a handbag and wearing shoes.  She said that she did not see the step at the entrance.  His Honour (at para 47) referred to the need to take care for one’s own safety and said “the plaintiff in the present case was not gazing at the stars of course; apart from anything else, she was indoors.  However the more probable explanation for her having fallen is that for one reason or another she was not watching where she was walking.”
  1. [64]
    In Owners of Strata Plan 63477 v Ross [2005] NSWCA 162, the plaintiff had been in a premises and had entered and left by the same route on about half a dozen previous occasions.  On the occasion in question, she went to return to where she had parked her car, going down a corridor and entering a foyer where lifts were located.  She went through a glass door onto a brightly lit landing where stairs led down to the carpark.  A few metres from the door on the landing there was an isolated step.  The plaintiff was looking straight ahead at the view outside the building and was distracted by glare off a body of water.  She fell on the step and was injured.  The step was 10cm high and placed at an angle across the landing.  She did not see the step before she fell.  The NSW Court of Appeal (at para 25) said the following in respect of the “important question:  Was the defendant’s failure to eliminate the risk demonstrative of a want of reasonable care for the plaintiff?”:

“25 The failure to take some action to render the step obvious to a pedestrian could not be said of itself to constitute the breach of the duty of care, that is, it did not demonstrate a want of reasonable care in the circumstances.  The step itself was differentiated from the surrounding area.  It could be seen on approach from the foyer through the door, being the direction in which the respondent was walking.  It was not a hidden trap or hazard; and, as the appellant submitted, differences in level are bound in public places and are an everyday risk which members of the public avoid by taking care for their own safety.  The probabilities are that the respondent would not have fallen on the step if it were not for being distracted by the glare off the fountain.”

  1. [65]
    The Court expressed the view that the distraction could have been averted by the plaintiff looking away or averting her gaze or stopping until her eyes were adjusted to the glare.
  1. [66]
    I was referred to Pascoe v Coolum Resort Pty Ltd [2005] QCA 354, where the appellant was walking with others on a paved pathway of the premises and she came to a point where the pathway met a roadway.  There was at this intersection an exposed area of garden bed to her right.  She looked to her left to check for possible approach of motor vehicle traffic and as she went to the right around the corner, she fell.  She gave evidence of her foot going into a depression in the garden bed which caused her fall. 
  1. [67]
    The Court was of the view that the occupier of the resort premises had an ability to monitor the state of the walkways around its resort to control the extent to which they were kept in proper repair for the safety of employees and guests in the course of the conduct of its business. However, this was in essence an employers liability case and a different analysis is required. It does not seem to me that this is a case that is useful in the analysis of the incident in this case.
  1. [68]
    In Ellis v Uniting Church in Australia Property Trust (Q) [2008] QSC 74, the plaintiff tripped and fell over a protruding paver on a driveway across a public footpath in which he was walking.  The paver had been out of level for some time and could have been simply re-laid in order to eliminate the risk.  However, the plaintiff knew where the paver was and in the circumstances of the incident in which he was injured, he simply paid no attention to it.  Skoien AJ (at para 53) was not satisfied that there was a duty to remove “a slight and obvious danger” and that the cause of the incident was not a breach of duty on the part of the occupier but the plaintiff’s own carelessness “in failing to keep a proper outlook (of failing to make use of a wide, safe footpath and choosing to walk in a potentially risky line, indeed in failing to pay heed to a risk of which he was well aware)”.

DISCUSSION

  1. [69]
    In my view, the existence of a risk in the height differential between the walkway and the bitumen carriageway was foreseeable. However, it was not reasonable to expect that it should have been protected in some way and in particular, in the ways proposed in the evidence of Mr McDonald.
  1. [70]
    The height differential was clearly indicated by the change in colour between the concrete surface of the walkway and the bitumen surface of the carriageway. Whilst there may have been a slightly higher risk for a person walking out of the shop and proceeding at right angles across the walkway onto the bitumen (because of the vertical view of the kerb edge and to which Dr Grigg referred in his evidence) the plaintiff in this case had in fact proceeded along the walkway to the right for a few metres before then changing her direction of travel to go to her car in the carpark. It was in the process of that movement that her left foot went out across the kerb into the air and she fell.
  1. [71]
    The plaintiff said in evidence that at the time she was looking at her car. While she does not recall the statement made to Dr Steadman in October 2006, that statement is nevertheless fairly significant if it was her recollection at the time. It was not suggested that the note made by Dr Steadman was inaccurate. It appears in the clinical notes in the following terms:

“… coming out of a shopping centre … she was looking out and around for her car and looking at the ground at the same time but momentarily she missed her stepping and fell.”

  1. [72]
    It seems to me that having regard to the extent of the risk and the degree of probability of its occurrence, given that a step down from a footpath to a roadway across a vertical kerb is not an unusual feature in areas to which the public have access, including shopping centres, that have a high degree of pedestrian traffic, the degree of probability of the occurrence, along with the expense, difficulty and inconvenience of taking steps to protect persons against that risk - particularly where such steps almost inevitably would give rise to other risks to the health and safety of the users of the walkway - that on balance the exercised reasonable care did not require that the walkway be remedied in any way.
  1. [73]
    Mr McDonald proposes a number of remedial measures. Even if I regard these as being applicable to the walkway and kerb prior to the walkway date of the incident, they each give rise to the other risks that are potentially greater than any risk the existing kerb created for a pedestrian such as the plaintiff. At one extreme the reconfiguration of the car park was potentially required, at the other simple ramps at intervals along the length of the walkway – extending into the trafficable area of the driveway – were proposed. On the one hand the proposed potentially involved significant cost and inconvenience to the operation of the premises and on the other there would have been no certainty that pedestrians would have used a sloped ramp in preference to selecting a convenient place elsewhere to step off the kerb.
  1. [74]
    The use of railings, a continuous slope with protective bollards place along its length, signage or any combination of those measures would in my view have been an unreasonable requirement to remedy any potential risk associated with a simple kerb.
  1. [75]
    I find that the kerb was obvious to anyone who was keeping a proper lookout and taking care for their safety. The movement involved in stepping over the kerb from the walkway to the asphalt driveway was a simple task that people in their daily lives would encounter and negotiate regularly. There was nothing special about this kerb in its location that required any special measures. The risk of a fall whilst foreseeable, was slight when one considers the potential pedestrian movement along and over it everyday.
  1. [76]
    It was suggested that the plaintiff knew if the existence of the kerb from previous visits to the premises or to this shop. However, I accept her evidence that this was the first occasion that she had encountered the kerb. Nevertheless, the kerb was not constructed in any special way and was clearly observable to an alert user of the walkway. The plaintiff did not step directly from the shop doorway and walk at right angles to the kerb; rather, she walked to her right and along the walkway before changing course to walk to the car park.
  1. [77]
    Mr Reichhold was not aware of any other incidents. He was not regularly on site at the premises. His management did not include formal incident reporting it seems. He may have been blissfully unaware of other incidents, had there been any. However, in the absence of evidence that there had been previous incidents, I find that the incident in which the plaintiff was involved was the only incident involving potential or actual litigation.

CONCLUSION

  1. [78]
    I find that the kerb did not constitute a trip hazard; it did not require the defendant’s to eliminate the height differential; the plaintiff was not, by the existence of the kerb as it was pre-accident, exposed to any risk of injury that was unreasonable; the height difference was obvious to a person exercising simple care where they were walking; no reasonable person in the defendants’ position would have taken steps to eliminate the kerb height - that is, the defendant’s had not acted unreasonably in not taking such steps.
  1. [79]
    There was no breach of duty of care by the defendants. In my view, applying the proper test for negligence, the plaintiff has not proved that the defendants, who owed a duty of care, have not acted in accordance with reasonable care. See Derek v Cheung [2001] 33 MVR 393; Neindorf v Junkovic (supra).
  1. [80]
    The Plaintiff fell because she was not looking where she was going. She walked along the walkway for a few metres or paces and then changed her direction of travel to go to the carpark. She may have looked at her feet. She was looking in the direction of her parked vehicle. If she did not see the change in surface height between the white concrete walk-way and the black bitumen asphalt it was because she was not paying sufficient attention to where her feet were. She mis-stepped as a consequence and fell. In doing this the plaintiff did not keep a proper lookout and failed to take care for her own safety. Accordingly, the Plaintiff’s action has failed and the defendants are entitled to judgement.
  1. [81]
    If I am wrong in my assessment of the duty of care and if, contrary to my findings the defendants were found liable in negligence for breach of duty of care, the plaintiffs own failure to take care is a significant cause of the fall. I would, in such circumstances, have assessed contributory negligence at 50 percent.

QUANTUM

  1. [82]
    The parties settled quantum prior to the trial. I am therefore not required to consider the issue.

COSTS

  1. [83]
    Ordinarily the costs would follow the event and I would order accordingly. However, I give the parties 28 days to make written submissions on costs. At the conclusion of that period I will make a costs order pursuant to the relevant legislative provisions.

ORDERS

  1. Judgment for the defendants.
  2. The issue of costs subject to submissions from the parties within 28 days or otherwise as ordered thereafter by the court.
Close

Editorial Notes

  • Published Case Name:

    Spencer-Knott v Reichhold Investments Pty Ltd & Ors

  • Shortened Case Name:

    Spencer-Knott v Reichhold Investments Pty Ltd & Ors

  • MNC:

    [2008] QDC 337

  • Court:

    QDC

  • Judge(s):

    Durward SC DCJ

  • Date:

    02 Sep 2008

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512
1 citation
Jump To
Cite 1 - (2001) 206 CLR 512
Castle v Weeks [1999] QCA 450
2 citations
Jump To
Cite 1 - [1999] QCA 450
Cite 2 - [1999] QCA 450
David Jones Ltd v Bates (2001) NSWCA 233
1 citation
Jump To
Cite 1 - (2001) NSWCA 233
Davis v B1 Gaming Corporation [2004] QDC 19
2 citations
Jump To
Cite 1 - [2004] QDC 19
Cite 2 - [2004] QDC 19
Derrick v Cheung (2001) 33 MVR 393
2 citations
Jump To
Cite 1 - (2001) 33 MVR 393
Cite 2 - (2001) 33 MVR 393
Ellis v Uniting Church in Australia Property Trust (Q) [2008] QSC 74
2 citations
Jump To
Cite 1 - [2008] QSC 74
Cite 2 - [2008] QSC 74
Ghantous v Hawkesbury City Council (2001) 75 A.L.J.R 992
1 citation
Jump To
Cite 1 - (2001) 75 A.L.J.R 992
Ibrahim v Myer Queensland Stores Ltd [1996] QSC 116
2 citations
Jump To
Cite 1 - [1996] QSC 116
Cite 2 - [1996] QSC 116
Lynch v Kinney Shoes (Australia) Ltd [2005] QCA 326
2 citations
Jump To
Cite 1 - [2005] QCA 326
Cite 2 - [2005] QCA 326
Neindorf v Junkovic (2005) 222 ALR 631
1 citation
Jump To
Cite 1 - (2005) 222 ALR 631
Neindorf v Junkovic [2005] 227 ALR 631
1 citation
Jump To
Cite 1 - [2005] 227 ALR 631
Owners of Strata Plan 63477 v Ross [2005] NSWCA 162
2 citations
Jump To
Cite 1 - [2005] NSWCA 162
Cite 2 - [2005] NSWCA 162
Pascoe v Coolum Resort Pty Ltd [2005] QCA 354
2 citations
Jump To
Cite 1 - [2005] QCA 354
Cite 2 - [2005] QCA 354
Thompson v Woolworths (Q'Land) Pty Limited [2005] HCA 19
2 citations
Jump To
Cite 1 - [2005] HCA 19
Cite 2 - [2005] HCA 19
Wyong Shire Council v Shirt (1980) 146 C.L. R. 40
3 citations
Jump To
Cite 1 - (1980) 146 C.L. R. 40
Cite 2 - (1980) 146 C.L. R. 40
Cite 3 - (1980) 146 C.L. R. 40

Cases Citing

Case NameFull CitationFrequency
Horne v Gilshenan [2010] QDC 4911 citation
1

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