What was reasonable in the circumstances?
57Both counsel refer to the evidence of the safety management and ergonomic consultant, Mr Adams (exhibit 4) and Mr Donohue, engineer and professional ergonomist (exhibit 11). Those expert reports were served during the hearing of the cross claim. There was no contest to the underlying facts on which the relevant experts gave their opinions.
58Mr Gracie relies on those reports to establish the reasonableness of what should have been done to prevent the injuries happening to Ms Budich. In particular, that the water-dispensing unit had a pronounced instability, which was inherent from its design configuration. That risk was further amplified by it resting atop a table which was itself a demountable, readily portable and lightweight table.
59Further, the table and the A-frame stand resting against the table were likely to be hit. The loose water and the unfastened container, within which the water was contained, as well as the unstable dispensers and the entire display on top of the table were inappropriate. The display was inappropriate given both the type of and the scale of the pedestrian traffic in the immediate area - see paragraph 2, exhibit 11. Those problems were added to by the height of the table - [5]. It was inappropriate for the tables to be used with that equipment without any clasp or snap-fit mechanism to ensure that the water container was not able to be easily dislodged from the dispenser base or that, if it did overturn, for it to remain clasped and hydraulically intact - [4].
60The foreseeable collisions included, clearly, shoppers moving in the immediate vicinity, with shopping trolleys or children running around. In those circumstances the location of the stand and the security of the stand were of fundamental importance - [19].
61The stability of the stand included security of items on the table and rigidity of both the stand and the table in all the circumstances. Further, the A-frame stand need not have been situated against the table. Any contact with the table would have inevitably impinged upon the legs and table itself - [20]. It could have been placed in a way such that, had it fallen over, it could have fallen away from the table - [23]. The table could have been made less insecure by the placement of a mat underneath it to give a greater degree of frictional force necessary for it to be dislodged - [32].
62Mr Donohue's report refers to the fact that the user, namely the franchisee, Mr Hancock, chose to position the dispenser on the unstable table, in a way that made it even more precarious. That defect should have been corrected - [42]. The report notes that the very existence of the A-frame stand in the context of the overall display, rendered it inherently unlikely to withstand further risks of spillage or discharge of fluid upon the surfaces. There were no procedures in place to limit the spillage - for example, by the placement of mats on the table or below it.
63The report also notes that the accident was not due to the table so much as arising from its configuration and design - [54]. The factors causing the collision - such as the shopper with the shopping trolley not paying attention - was a patent risk but that was only the case because of the defects in the assemblage - [54].
64The photographs included in Mr Adams report (exhibit 4) make it clear that shopping trolleys were an integral and expected part of the pedestrian traffic within the centre. There were ramps consistent with the use of trolleys. Trolley stands and container areas are visible immediately outside the entrance doors, adjacent to where the stand was set up and the incident occurred (exhibit 4 - photograph 3).
65The size of the area in which the stand was set up and its proximity to the doorway and the adjacent pharmacy are clearly evident in photographs 6 and 11. The dimensions are marked and show it to be a very cramped area for such a display to be set up and operated in such a thoroughfare.
66Mr Adams also lists reasonable preventative measures which should have been implemented or taken by the Centre Operator: exhibit 4, para 4.18 - pp 21-22. Those measures include provision of slip resistance on pedestrian surfaces, absorbent mats, replacement of the display stand in the more appropriate location elsewhere as well as suitable secure matting on the floor under and around the stand.
67The unchallenged opinion of Mr Adams was that it was entirely foreseeable for each of the defendants that a customer or worker in the Centre might experience a slip, loss of balance, fall or injury when gaining access to the main entrance. Further, that there were reasonable, preventative actions available to minimise the risk of injury.
68Mr Gracie submits that Mr Hancock notified the Centre Operator that he was planning to set up the stand and to bring both the water, table and containers onto the site. Thereafter the only thing that the Centre Operator did was to allocate the space.
69Mr Gracie submits that the apportionment of the sum of $180,000 as negotiated in the award of damages between Hancock and the Centre Operator should be 70% by Mr Hancock and 30% by the Centre Operator.
70Mr Torrington submits that the Cross-claim should be dismissed with costs on the basis that no liability rests with Mr Hancock. Further, that as between the potential tortfeasors (if that is what they are) any liability of Mr Hancock has been satisfied by Awesome Water.