Littlejohn v Julia Creek Town and Country Club Inc
[2011] QDC 116
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- Unreported Judgment
- Appeal Determined (QCA)
- Littlejohn v Julia Creek Town and Country Club Inc[2011] QDC 116
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Littlejohn v Julia Creek Town and Country Club Inc[2011] QDC 116
Littlejohn v Julia Creek Town and Country Club Inc[2011] QDC 116
DISTRICT COURT OF QUEENSLAND
CITATION: | Littlejohn v Julia Creek Town and Country Club Inc [2011] QDC 116 |
PARTIES: | Sonia Ivy Littlejohn (Plaintiff) and Julia Creek Town and Country Club Inc (Defendant) |
FILE NO/S: | D237/11 |
DIVISION: | Civil |
PROCEEDING: | Retrial |
DELIVERED ON: | 23 June 2011 |
DELIVERED AT: | Townsville |
HEARING DATE: | 15 June 2011 |
JUDGE: | Baulch SC DCJ |
ORDER: | 1.Finding that the Defendant is liable to pay to the Plaintiff the whole of the damages assessed by Cullinane J on the 29th June 2010 |
CATCHWORDS: | TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – REASONABLE FORESEEABILITY OF DAMAGE – GENERALLY – RELATIONSHIP OF PROXIMITY TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – SPECIAL RELATIONSHIPS AND DUTIES – OCCUPIERS TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE - GENERALLY |
COUNSEL: | M Grant-Taylor SC with A Stobie for the Plaintiff K Fleming QC for the Defendant |
SOLICITORS: | Turner Freeman for the Plaintiff Connolly Suthers for the Defendant |
- [1]The plaintiff, who was born on 30 April 1946, suffered injury in the defendant's licensed club at 84 Burke Street, Julia Creek on 21 May 2004 at about 11 a.m. in the morning. She brought an action for damages in the Supreme Court which was successful but on 24 November 2010 the Court of Appeal allowed an appeal against the verdict in her favour and ordered that the question of the defendant's liability to pay the plaintiff the damages assessed by Cullinane J be remitted for determination by the District Court at Townsville.
- [2]The matter was heard before me on 15 and 16 June 2011.
THE PLAINTIFF'S CASE
- [3]The plaintiff's evidence was supported by evidence from her husband and a Mrs Hope, both of whom accompanied her to the premises on the day of the accident. In addition she called evidence from a Mr Justin O'Sullivan, an ergonomist who has visited the premises and prepared a report.
THE DEFENDANT'S CASE
- [4]Although there were two persons (a male patron and female staff member) present in the club at the time of the plaintiff's fall, no evidence was called by the defendant from either of those persons. The defendant called the president of the club, its vice president and a Mr Forbes who has some expertise in matters of lighting.
THE WITNESSES
- [5]The plaintiff described arriving at the defendant's premises at about 11 o'clock on a fine and sunny day. She went with others into the club premises where there was a bar. Present at the bar was a female staff member and a male patron.
- [6]A member of the group enquired as to whether lunch would be available and they were told that lunch could not be had on that day and decided to stay in the club and have a drink before moving on. Some drinks and some snack food were served to the group in an area of the bar a short distance from where they had first encountered the female staff member.
- [7]The plaintiff said that after a time they decided they had better "push on" and said that when she got up to go out she was walking across an area from where she had been sitting and she was going to go out the front door. She was walking through a darkened area from a lit area and walking slowly. Her attention was distracted by some glare from the floor and she put her hand up and at that moment lost her footing, stumbled and fell.
- [8]There was a difference in the floor levels which is illustrated and detailed in the report of Mr O'Sullivan and the plaintiff was at that place where the floor level changed at the moment she lost her footing.
- [9]The plaintiff said that the lights in the main part of the club were turned off at the relevant time and that there was bright sunlight coming through a window adjacent to the front door which is demonstrated in the photographs that were tendered before me as well as the photographs that are part of Mr O'Sullivan's report.
- [10]The lay witnesses who gave evidence in the plaintiff's case were both supportive of her evidence that it was dim in the club premises and that the light coming in the window was bright and affected one's ability to see the floor clearly as one moved about, particularly when one was moving towards the source of the bright light, the window near the front door. Neither of them saw the plaintiff's fall but saw her on the floor immediately afterwards.
- [11]The plaintiff was cross-examined extensively about the issue of how the fall occurred and I was urged not to accept her account because of a number of inconsistencies that emerged.
- [12]It was pointed out that in the notice of claim for damages given in September 2004 the plaintiff described the premises as the Julia Creek Hotel, expressed the view that the flooring upon which she was walking was wooden and not tiled as is in fact the case, and she did not mention in her description of the event at that time the effect of the glare. It seems that she only became aware of the true nature of the flooring when she visited the premises again in the company of Mr O'Sullivan in 2006 and that she remembered having been affected by the glare while she was at the premises with Mr O'Sullivan at that time.
- [13]I was also urged to reject the plaintiff’s evidence on the basis of two matters arising from the progress of this litigation.
- [14]First it is said that I should take account of adverse findings said to have been made by Cullinane J when assessing damages. It seems to me to be a very odd way to approach litigation in which the determination of a specific question is referred to this court for determination. Cullinane J declined to accept that the Plaintiff’s need for care was at the level claimed. He did not find that she was untruthful or that the care had not been provided but simply that the need for care at the level claimed could sit comfortably with the video evidence. Assuming that it is appropriate to take that finding into account in respect of the plaintiff’s credit, I do not find it to be of significant weight.
- [15]Second, I was urged to take into account what were said to be findings of Chesterman JA in the Court of Appeal. To me, this is even more unusual than the first matter. I do not think that the passages relied upon amount to findings as opposed to statements demonstrating what Chesterman JA found to be inadequacies in the reasons of Cullinane J. I am of the view that it would be an extremely odd situation if, a question having been referred to this court for determination, I found myself searching through the Court of Appeal judgment for guidance on matters of credibility.
- [16]It was said that all of these matters are so significant and central to the case that I should decline to accept the plaintiff's account of what happened to her.
- [17]I had the opportunity of watching the plaintiff give her evidence over an extended period and I formed the view that she was a straight forward witness doing her best to give an honest account of herself. The notice of claim for damages, which was tendered as exhibit 2, is apparently prepared by a solicitor and provides an account of what happened in the third person. I note that the plaintiff was not challenged as to the fact that the 20 minutes or half an hour that she spent in the club was the only time that she had ever spent there prior to the notice of claim for damages being prepared and I do not think that the first two inconsistencies are surprising, having regard to that matter.
- [18]Further, the essential clause of the plaintiff's fall was the difference in the floor levels between the tiled surface and the carpeted area and the fact that another contributing matter which, whilst significant, was not essential in the causation was not remembered by her until she revisited the premises does not surprise me.
- [19]I accept her evidence that she noticed glare from the dance floor and put her hand up to shield her eyes from that glare. I am satisfied that at that moment stepped onto the edge of the tiles, lost her footing and fell.
THE DIFFERENCE IN THE FLOOR HEIGHT
- [20]Mr O'Sullivan's report (exhibit 1) deals with the significance of the difference in floor heights. He was cross-examined at length about his assertions about the glare and at some length about his assertions about the flooring. He concludes that a height difference of 30 millimetres or higher might cause a tripping or stumbling incident of the sort which occurred here and quotes other studies which have established that a 25 millimetre edge is likely to be sufficient to cause a loss of balance and a stumble of the type under discussion if encountered in an unexpected fashion, particularly at an angle where the foot can tip side ways. He noted that in Mrs Littlejohn's case the edge ran at about 45 degrees to her direction of travel and that is illustrated by the photographs.
- [21]Mr O'Sullivan cites a study which identifies single steps and walkways as being notoriously difficult to detect even for young able bodied people and which identifies a greater risk for older people because of reduced visual acuity, depth perception, contrast and contrast sensitivity.
- [22]Mr O'Sullivan and Mr Forbes agree that the lighting in the premises exceeds a 20 lux by a significant amount. A 20 lux is the minimum level said to be appropriate for publicly accessible parts of buildings (see the Australian Standard 1680.0:1998) whether the lights were on or off.
- [23]I note that the standard expresses the following qualification.
"Electric lighting alone cannot provide conditions that will ensure safe movement. Other facts such as use of interior surface finishes of appropriate colour and reflectance and the avoidance of excessive contrasts in brightness of surfaces in the field of view e.g. windows and luminaries, can significantly enhance the visual environment for safe movement."
- [24]I note that Australian Standard 1680.2.0:1990 dealing with interior lighting suggests that for restaurants, cafeterias and dining rooms the standard requires a general level of 160 lux which is significantly more than was found in the premises by Mr O'Sullivan and Mr Forbes. Mr O'Sullivan says that that level of lighting is required in a restaurant to provide "basic amenity."
- [25]I also note that Standard number 1680.1:2001 identifies windows as a likely source of disability glare and as a factor which can cause a gloomy interior unless due regard is taken of the recommendations in the Standard.
- [26]Disability glare is said to be a degree of impairment of vision experienced when parts of the visual field are excessively bright in relation to the general surroundings. It seems to me that that is a matter of common experience and one which would be expected in the conditions pertaining in the club at the relevant time, particularly if the lights were turned off.
- [27]In that regard I accept the evidence of the plaintiff and her witnesses that the light was turned off at the relevant time. No evidence to the contrary was given and there was no explanation as to the absence of evidence from the male patron present at the time and the female staff member who was present and on that basis it seems to me to be safe to accept the plaintiff's evidence as to that matter supported as it was by her two companions.
THE GLARE
- [28]A great deal of time was spent in cross-examination of Mr O'Sullivan and Mr Forbes about the effect of the glare. At the end of the day it is clear that the glare was not measured in a way which enables definitive conclusions to be drawn about it save to say that there was notable reflection from the shiny surface of the dance floor and that it was possible to illustrate that with the photographs that were taken. Further, the photographs illustrate perfectly how a window admitting bright light can result in an appearance of gloomy surroundings inside. Notably, the bright light reflects from the dance floor when the sun is shining on the dance floor and also when the dance floor is between the observer and the window – see the report of Mr O'Sullivan and in particular the photographs therein. While the glare from other than direct sunlight would be less, as was conceded by Mr O'Sullivan, it is still a significant glare and likely to be a distraction, as it was for the plaintiff.
- [29]I have not overlooked the evidence of Mr Woodhouse and Mr Cook that they never encountered any difficulty with glare or had any difficulty seeing inside the club whether the lights were on or not. I do not accept, having regard to the photographs, that a person familiar with the club could be unaware that bright light comes through the window illustrated in the report of Mr O'Sullivan and, at times, creates significant glare.
- [30]I note that Mr Cook thought that exhibit 8 have a fair indication of the nature of the lighting inside and it seems to me that his evidence must be read in light of that concession for exhibit 8 demonstrates, in my opinion, a gloomy interior with bright light being admitted through a window.
CONCLUSION
- [31]In all of the circumstances I conclude that the plaintiff was moving at a modest pace, across the area in question when she was distracted by the bright light reflected from the dance floor. At that point she would have been at a position where the dance floor was, at least in part, between her and the window. The light that she observed was from the reflection of the window, not because sun was shining on the dance floor. I accept that she raised her hand to shield her eyes. While it was suggested that such a reaction would not be expected, I accept her evidence that she did so. I also accept the evidence of the experts that reaction to glare is a very subjective thing. Sadly at that moment she put her foot on the area of flooring where the height change occurred and that caused her to stumble and fall. It is not possible on the evidence to determine the nature and extent of the glare but only to say that it was, subjectively, from the plaintiff's point of view, sufficient to cause her to attempt to shield her eyes from it. I note that the glare was also described by Mr O'Sullivan as significant. Mr Forbes' contrary view was formed after an inspection of the club when significant alterations had been undertaken which alterations in my view left him less able to assess the situation than Mr O'Sullivan had been two years earlier.
THE PREMISES
- [32]The interior of the premises is well depicted in photographs which are exhibit 4 and exhibit 8. There are also some smaller scale photographs attached to the report of Mr O'Sullivan.
- [33]The layout of the interior of the club is an interesting one where an attempt has been made to separate the main portion of the bar area from a smaller portion of the bar area which might be used by patrons using what I take to be the dining room adjacent to where the dance floor was located at the relevant time.
- [34]Originally, I was told by the president, the whole area was carpeted right up to the bar and at some time in the 1980’s a decision was made to put tiles in the bar area and out into some portion of the front of the club. It was not explained why the tiles were finished off at an angle to the way in which people would be walking to and from the dining area and the toilets. Nor was it explained why the result of that was that the tiled area was 25 mm to 30 mm higher than the carpeted area which separated the tiles from the dance floor. The dance floor was constructed by laying two 12 mm sheets of plywood, one on top of the other and affixing them on top of the carpeted area so that there was a 24 mm step up to the dance floor area. The way in which that was constructed meant that an entrant to the club came in the door, turned right to walk around a partition and then could turn left and be confronted by a step up of 24 mm to the dance floor or walk on a little further and walk across the carpeted area to the area where the tiles were located where there was a 25 mm or thereabouts step up. The person who turned left at the end of the partition (as the plaintiff did) was confronted with a step up onto the dance floor, then a step down off the dance floor, then a step up to the tiles.
- [35]In commercial premises in the modern age, this is a curious arrangement but I take it to be explained by the fact that this is a country club in a country town where many things are probably done by volunteers and without specialist advice.
THE DUTY
- [36]Since the decision in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488 it has been clear that the duty of an occupier is a duty of care under the ordinary principles of negligence. A pre-requisite of such a duty is that there is to be a necessary degree of proximity of relationship.[1]
- [37]More importantly, as was pointed out by Deane J in that case:
"The touchstone of its (duties) existence is that there be a reasonable foreseeability of a real risk of injury to the visitor or to a class of persons 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."
- [38]I was referred to a number of other cases but I was not really assisted by them as they are all examples of the application of that principle.
- [39]In my opinion the change in the floor level posed a real risk of injury. It is common experience that persons aware of such a thing but frequent users of premises can overlook such a thing because familiarity makes one less cautious. Further, it is common experience that a distraction may cause one to overlook something which would otherwise be apparent. I have heard evidence from the president of the club that no similar falls have been reported in the very significant period since the tiles were installed on the premises. I must say I thought that the system of reporting was one which was not likely to catch every incident. In addition, I would be very surprised if there had not been an incident of stumbling over the step up in the period described, having regard to the very large number of visitors it is said there would have been to the club.
- [40]The following factors are in my view relevant to the establishment of a duty of care:
"(a)the premises are commercial premises;
(b)Alcohol is served to patrons on the premises;
(c)Visitors are welcomed at the premises;
(d)The area where the change in height occurs is an area frequently traversed by patrons and probably by staff;
(e)The area is a workplace;
(f)The height change presents at an angle to what might be the usual or expected path taken by persons crossing the area;
(g)It would be expected that persons unfamiliar with the premises would traverse the area from time to time."
- [41]In those circumstances it is my opinion that the hazard was one which reasonably required attention. As Mr O'Sullivan says it could be simply addressed by the provision of better lighting, by highlighting the edge of the tiles or preferably by elimination of the height difference.
- [42]For the defendant it is said that it is unreasonable to require the club to do anything in response to the risk. It is said that it is not a significant risk. Further, it is said that the colour change between the tiles and the carpet provides a visual warning of the change in the nature of the surface and that should alert a user to a possible/probable change in the height. I do not agree. It does not seem to me that a reasonable person on observing the change in the floor surface would expect that that would be accompanied by a change in height. I think that a reasonable person, absent any warning, can expect a continuity of the floor surface where there is nothing to indicate the contrary and a change of colour does not bring with it an anticipation of a change in the height of the floor.
- [43]The way in which the plaintiff came to fall while distracted by the glare, illustrates how such a defect can result in injury.
- [44]I am satisfied that the defendant failed to take reasonable care in four respects:
(a)It failed to eliminate the height difference between the tiles and the carpeted floor.
(b)It failed to adequately light the area having regard to the danger that existed.
(c)It failed to use curtains or similar means to reduce the glare coming from the window.
(d)It failed to highlight the edge of the tiles by way of a provision of coloured nosing tiles or otherwise.
- [45]The defence alleges that the plaintiff was guilty of contributory negligence in failing to keep a proper lookout and failing to take any or any proper steps for her own safety.
- [46]I have already dealt with the way in which the plaintiff moved through the area and the effect of the distraction of the glare. The plaintiff was not moving at an excessive speed or failing to keep a proper lookout but was distracted by the glare as I have said. There was, in my opinion, no other measure which she could reasonably have been expected to take to reduce the risk to her.
- [47]I would not reduce the damages for contributory negligence.
- [48]The Court of Appeal referred the question of the defendant's liability to pay the plaintiff the damages assessed by Cullinane J in the Supreme Court to this Court for determination.
- [49]I determine that the defendant is liable to pay the whole of the damages assessed by Cullinane J to the plaintiff. I will hear submissions as to any other orders that are required and as to costs.
Footnotes
[1] See Hackshaw v Shaw (1984) 155 CLR 614 at 662 to 663