HILL v CHIAVERINI

On appeal, the plaintiff submitted that it had been lawful and reasonable to cross the garden bed and that the defendant's system of cleaning and sweeping was defective and/or inadequately maintained.

HELD: per Mason P (McColl JA and Hislop J agreeing) dismissing the appeal:

1. There was a duty on the defendant to take reasonable care, bearing in mind that what is reasonable will vary with the circumstances of the plaintiff's entry upon the premises: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 referred.

2. A finding of breach requires a conclusion that the occupier has acted unreasonably in responding to the foreseeable risk of injury: Wyong Shire Council v Shirt (1980) 146 CLR 40 referred. · In determining what is required of the occupier one must take into account the law's expectation that the plaintiff would take reasonable care for her own safety: Phillis v Daly (1988) 15 NSWLR 65; Francis v Lewis [2003] NSWCA 152. · However, occupiers may not ignore the fact that accidents may occur due to an entrant's inadvertence.

3. The trial judge's conclusion that breach of duty was not established ought not to be disturbed. · The critical issue was the reasonableness of the plaintiff's response to the foreseeable risk that persons might suffer injury through crossing the garden. · In the circumstances, it was not unreasonable to have a twice daily cleaning system for the car park. · The evidence does not establish that the system broke down or suggest an inference to that effect: cf Brady v Girvan Bros Pty Ltd (t/as Minto Mall) (1986) 7 NSWLR 241, Kocis v S E Dickens Pty Ltd [1998] 3 VR 408.

ORDERS:

1. Appeal dismissed with costs.
2. Cross appeal dismissed with no order as to costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40637 of 2003 DC 59 of 2002

MASON P McCOLL JA HISLOP J

Joanne Maree HILL v Mario CHIAVERINI & Ors JUDGMENT

1 MASON P: A trial in the District Court resulted in a verdict for the defendant. The trial judge (Sidis DCJ) assessed damages against the contingency that the plaintiff may succeed in an appeal. The plaintiff has appealed against the verdict and one component of the damages. The defendant has cross-appealed against the damages contingently assessed. 2 The plaintiff suffered a significant injury to her left knee by falling at premises owned and occupied by the defendants. 3 The premises are a small shopping centre at the intersection of Princes Highway and Calwell Avenue, Fernhill. The complex includes a chemist, a doctor's surgery, a take-away chicken shop and two residential units. 4 There are two car parks, one at the front and one at the rear. Access is provided by two driveways, each of 15 metres width. One is located on Caldwell Street, approximately 18 metres from the corner; and the other on the Princes Highway, 36 metres from the corner. Judge Sidis found that the driveways were "clearly more than adequate for passing vehicular traffic whilst leaving ample room for pedestrians". There is no dedicated or separate route for pedestrian access. 5 The front car park is bordered on its two road edges by a garden bed that is 260mm high and 790mm wide. The 490mm wide planting area is framed with 150mm wide dwarf walls built of synthetic stone. 6 On the car park side of the garden bed there is a broken line of concrete buffers 150mm high and 200mm wide: these serve as a kerb preventing cars running into the wall of the garden bed. The distance from the inside of the garden bed to the line of buffers is 600mm. 7 The garden bed is planted with shrubs that appear to be grevillea. They were planted reasonably close together apparently with the intention of forming a continuous hedge. In fact there are significant gaps and it is possible for pedestrians to step off the pavement onto the garden bed and into the car park at several spots. 8 The garden is mulched with small red or brown pebbles known as scoria. Pictures show that the pebbled surface of the garden is a little below the surface of the adjacent dwarf wall: this suggests that pebbles would not be easily kicked from the garden onto the car park, but obviously this could and did happen. There was also evidence that children are known to throw pebbles off the garden from time to time. 9 On 23 April 2000 the plaintiff went to the Royal Easter Show in Sydney with two friends. On their return to Wollongong, they parked off the Princes Highway opposite the premises. The plaintiff and her friend Mr Briffa had decided to buy take-away chicken from the shop on the defendants' premises. It was a busy time of the evening, approximately 6.30pm and dark at the time. 10 The plaintiff had been to the premises on previous occasions, but had always driven onto the site via the Princes Highway driveway. On this occasion the couple crossed at traffic lights and turned north along the highway adjacent to the car park. The most direct route of access to the chicken shop would have been to walk the 36 metres from the corner and then use the highway driveway entrance. 11 Mr Briffa took 8 to 10 steps north along the highway and then stepped onto the garden bed, over it and into the car park. The plaintiff followed him. Her version of the accident, accepted by the trial judge, was that she placed her right foot on the side wall, stepped over the garden bed, placing her left foot on the car park side wall of the garden bed. She then stepped with her right foot onto the car park. As she did so, her foot slipped from underneath, causing her to fall to the ground between two of the concrete buffers. Her left knee collided with the buffer to her left. 12 The plaintiff had a secure foothold on the boundary wall of the garden bed before she moved her right foot across to step down. The distance down is 260mm. She was looking down as she walked, but was not able to see what was on the ground at the time because it was dark. She slipped on what she later discovered were red pebbles that had been either kicked or thrown out from the garden bed. 13 It was common ground that it was dark where the plaintiff stepped down off the garden wall. Naturally, the parties sought to draw different conclusions from this primary fact. 14 The primary judge did not accept the plaintiff's evidence that she chose to cross the garden bed as a safer route of access than the driveways. Her Honour's conclusion was that it was more probable that the plaintiff had chosen the route as a shortcut as she followed Mr Briffa. In my view, nothing turns on this, because the defendants did not suggest that the chosen entry point was unlawful. This is not to deny that the content of the duty of care would disregard whatever likelihood existed that entrants would act as the plaintiff did. 15 The statement of claim averred wide-ranging particulars of negligence. Obviously many were not pressed. The plaintiff placed considerable reliance at trial upon the report of a consultant architect, Mr Walter Giles. He visited the site in November 2002. His report focussed on the site's design deficiencies, emphasising the absence of a dedicated pedestrian access near the traffic lights and separate from the vehicular access. The expert was also critical of the lighting in the car park, although he was unable to report on its effectiveness at the time of the accident. The defendants' expert, Mr Gilling, is also an architect. He also addressed design issues, commenting on aspects of Mr Giles' report. 16 Judge Sidis rejected the claim of negligence based upon poor design of the site. The two entrance ways offered adequately spaced, well lit access for both vehicles and pedestrians. Her Honour concluded that it was not unreasonable for the occupiers to have failed to provide dedicated pedestrian access through the centre of a car park used by frequently coming and going vehicles (Red 26-7). I do not understand the negligent design case to be pressed in this Court. 17 The case that is pressed was formulated as follows. The physical configuration meant that it was lawful and reasonable for pedestrians to choose a gap between the bushes on the garden bed as a means of access. There was nothing wrong with taking a shortcut. The defendants knew that this occurred from time to time. It was also known that from time to time pebbles were thrown or kicked out of the garden onto the car park, especially between the wall and the line of buffers. It was also known that this area was dark outside daylight hours. 18 None of these primary facts was seriously in dispute. From this springboard, the plaintiff argued that the defendants' system of sweeping the car park of pebbles was defective and/or inadequately maintained such that there was a want of reasonable care for the safety of persons like the plaintiff who chose to enter the premises by stepping over the garden bed. 19 This case was within the pleaded particulars. It took its flesh from the cross-examination of the third defendant, Mr Raffael Chiaverini. At the time of the accident he was a co-owner of the premises, he managed the complex generally and he was the manager of the chicken shop. He worked at the shop between 80 and 90 hours per week. He said that the plaintiff fell when it was a busy time for that shop with many cars coming and going. 20 Mr Chiaverini had seen children playing with the pebbles and occasionally throwing them, but he said that only small amounts were involved (CB 90, 95) and that they were picked up in the twice-daily cleaning of the car park (see below). He also conceded awareness that pedestrian entrants occasionally cut across the garden, but said that this was rare (CB 94, 95). 21 Mr Chiaverini gave evidence about the defendants' system of cleaning and maintenance at the time of the accident. 22 The garden bed was cleaned and maintained monthly. This work included removing pebbles that got onto the Princes Highway footpath or the car park surface and either putting them back in the garden bed or throwing them away. He conceded that this was done to make the place look tidy and also to keep it safe (CB 90). 23 Secondly, staff from the chicken shop used to clean the car park twice daily. This included sweeping pebbles from the car park. It is this system and/or its breakdown that was the focus of submissions in the appeal. 24 Various photographs taken by the plaintiff were put into evidence (CB 118-134). Some show smallish quantities of pebbles on the footpath or the car park. These were taken in September 2000 (CB 125, 127) and in late 2000/early 2001 (CB 129, 130). It was effectively put to Mr Chiaverini in cross-examination that these were indicative of the situation around the time of the accident. He did not entirely agree as to the quantities, but readily accepted that pebbles got onto the footpath and car park from time to time. He said that the staff who cleaned the car park twice daily were supposed to remove these pebbles. 25 The evidence is not entirely clear, but I read his answers as asserting that this was what was actually done as part of the normal cleaning system. This is how the trial judge regarded Mr Chiaverini's evidence, which she summarised in the following terms (Red 20-21): As far as a system of cleaning the site was concerned, he stated that in April 2000 the system required staff to clean the car park twice a day, removing rubbish and keeping it tidy. As far as gardening was concerned, he and his brother and his father had attended to the garden bed monthly. Mr Chiaverini was shown a number of the photographs which indicated that there were pebbles in the area of the car park adjacent to the wall of the garden bed. He had stated that he had seen children from time to time playing with the pebbles, and throwing them occasionally, but said that they involved small amounts of pebbles only. They were rarely present, and they were picked up in the course of the maintenance inspections undertaken twice daily by his staff. Having seen the photographs, Mr Chiaverini conceded that there were more pebbles than he had previously noticed, and he accepted that the pebbles should have been seen and picked up by his staff. He denied, however, that it was likely that those pebbles had been disturbed by persons walking over the garden beds. He said that most of his customers arrived by car. He agreed that he had seen pedestrians walk across the gardens on very rare occasions and irregularly, stating that most of them walk around and access the premises using the driveways. The driveway he said he had used many times as a pedestrian without difficulty. At fifteen metres wide he said the driveways had ample room for cars travelling in both directions, and for pedestrians to walk on. He said his car park was as safe as most car parks. He had never received a complaint concerning pedestrian use of the garden beds or any pedestrian use of the car park itself. 26 I infer that her Honour accepted this evidence. 27 Her Honour's conclusions as to liability were as follows: Those driveways are clearly more than adequate for passing vehicular traffic whilst leaving ample room for pedestrians. The Princes Highway access provides direct access to the chicken shop with much less conflict between the pedestrian and the motor vehicles. In my view it is more probable that the plaintiff was undertaking what was described by Mr Giles as a shortcut into the premises. There is a clear obligation on occupiers of commercial premises to take reasonable care to protect entrants upon them from harm by reason of dangers which exist on those premises. At the same time much emphasis has been placed in recent authorities on the requirement that plaintiffs act reasonably. Issues of contributory negligence do not arise unless there is first a finding of negligence on the part of the defendant to the proceedings. In this case I cannot agree that in circumstances where the access provisions at this site, providing as they did adequate lighting, space and minimal pedestrian and vehicular conflict, it was unreasonable for the occupiers to have failed to provide dedicated pedestrian access through the centre of a car park used by frequently coming and going vehicles. Whilst there is evidence to suggest that the maintenance of the site may not have been as appropriate or up to a standard that was acceptable, I do not regard this failure to maintain as the cause of the plaintiff's accident. The cause of her accident was that she was crossing the garden bed in an attempt to obtain access in an area where she should not have been. She could not see where she was going and she could not see where she was placing her foot. In those circumstances I am not able to conclude that there was a duty of care on the part of the occupiers to protect the plaintiff from harm in the circumstances which existed at the time of her fall. In those circumstances there will be a verdict for the defendant. 28 Senior counsel for the plaintiff/appellant, Mr Walker SC, accepted that the final paragraph should not be read as denying a duty of care, but should be construed as a finding that breach was not established having regard to the content of the duty in the particular circumstances. In my view, this concession was properly made in light of the remarks in the second paragraph of the passage just quoted, the unlikelihood that an experienced trial judge would deny a duty of care in this most commonplace situation and the circumstances in which judgment was given. The trial took place in the country and it lasted two days. Judgment was delivered the following day. 29 The plaintiff was a lawful entrant to commercial premises owned and occupied by the defendants. There was an undoubted duty to take reasonable care, bearing in mind that what is reasonable "will vary with the circumstances of the plaintiff's entry upon the premises" (Australian Safeways Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 487-8). A finding of breach requires a conclusion that the occupier has acted unreasonably in responding to the foreseeable risk of injury, having regard to the well-known considerations referred to in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-8. 30 In determining what the defendants were required to do, acting reasonably, the occupiers could take into consideration what Mahoney JA described in Phillis v Daly (1988) 15 NSWLR 65 at 74 as "the law's expectation that the plaintiff would take reasonable care for [her] own safety" (see also Francis v Lewis [2003] NSWCA 152). 31 This is not to assert that occupiers may ignore the fact that accidents occur due to entrants' inadvertence. Some criticism was directed at the trial judge's statement that "much emphasis has been placed in recent authorities on the requirement that plaintiffs act reasonably". In my view, this was a fair observation based upon recent appellate jurisprudence as to the content of the duty of care and issues of breach in various circumstances (cf Liftronic Pty Ltd v Unver (2001) 179 ALR 321 at 333[60], Brodie v Singleton Shire Council, Ghantous v Hawkesbury City council (2001) 206 CLR 512 at 580[160], Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 at 474[44]-[45], University of Wollongong v Mitchell [2003] NSWCA 94 at [33], Van der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 at [74], Richmond Valley Council v Standing [2002] Aust Torts Reports ¶81-679 at [29], Francis at [40], Waverley Municipal Council v Swain [2003] NSWCA 61 at [114], Temora Shire Council v Stein [2004] NSWCA 236). Her Honour was not asserting that a plaintiff's failure to act reasonably negates the duty of care or otherwise necessarily disentitles a plaintiff to damages for negligence. 32 Criticism was also directed at Sidis DCJ's observation that: Issues of contributory negligence do not arise unless there is first a finding of negligence on the part of the defendant to the proceedings.

This observation was perfectly correct, in my view. It is to distort her Honour's extempore reasons to suggest that she was implying that the defendants could not be found negligent once it was established that the plaintiff failed to have regard to her own safety in stepping off the dwarf wall onto the darkened surface of the car park. Her Honour addressed the reasonableness of the defendant's conduct in the ensuing paragraphs of her reasons. 33 In my view, the trial judge's conclusion that breach of duty was not established ought not to be disturbed. The likelihood of pedestrians crossing over the garden and slipping upon pebbles or other loose debris and the foreseeable magnitude of likely injuries from such eventualities did not made it unreasonable to have a twice daily cleaning regime for the car park. The evidence does not establish that such a regime broke down or suggest an inference to that effect (cf Brady v Girvan Bros Pty Ltd (t/as Minto Mall) (1986) 7 NSWLR 241, Kocis v S E Dickens Pty Ltd [1998] 3 VR 408). All that is known is that the plaintiff slipped on pebbles lying on the portion of the car park between the wall and the kerb when she stepped down in the dark. These pebbles could have been kicked there by Mr Briffa or by some other person who was there since the last regular sweeping of the car park earlier on the day in question. They did not present a danger of the same magnitude as slippery droppings in a crowded supermarket. 34 As indicated, the experts joined issue about matters of design. There was no evidence as to practices or standards concerning the sweeping of a car park of this nature. 35 The high point of the plaintiff's case in relation to keeping the car park clean was the cross-examination of Mr Chiaverini. When shown photographs indicating (smallish) quantities of pebbles on the footpath or car park, he accepted that this was material that his staff was supposed to clean up in their twice-daily cleaning of the outside area. In particular there was the following evidence (CB 93):

Q. But if the staff were cleaning the car park twice a day they wouldn't deal with pebbles, because they were a landscaping matter? A. They wouldn't? Q. They wouldn't? A. No, they're supposed to. Q. So if there's that many pebbles in the car park, as shown in the photos, that means that the staff aren't doing their job properly? A. Well then they're supposed to keep --- Q. So you agree that it means that they're not doing their job properly? HER HONOUR: Q. Was there an answer? A. The pebbles should have been cleaned.

36 Mr Chiaverini made several concessions favourable to the plaintiff's case and his testimony generally seems to have been accepted by the primary judge. Mr Walker SC invited this Court to read this passage as an admission that the cleaning system was not in place or had broken down at the time of the accident. In my view, that is going further than can be fairly inferred. The cross-examination did not establish more than that the pebbles shown in the photos taken well after the accident were the sort of debris that ought to be cleaned. Mr Chiaverini admitted as much. It was not however suggested in cross-examination that the pebbles in the photos had been in place for any period of time. The questioning was not related to the time of the accident or to the cleaning practice generally. 37 Senior counsel for the appellant focussed critical attention upon the following passage in the reasons of the primary judge: Whilst there is evidence to suggest that the maintenance of the site may not have been as appropriate or up to a standard that was acceptable, I do not regard this failure to maintain as the cause of the plaintiff's accident. The cause of her accident was that she was crossing the garden bed in an attempt to obtain access in an area where she should not have been. She could not see where she was going and she could not see where she was placing her foot. 38 This represents the nub of her Honour's reasoning in relation to the aspect of the plaintiff's claim that is still pressed. Making due allowance for the fact that her Honour was delivering judgment after reserving overnight during a country sitting, the reasoning is unsatisfactory in at least two respects. It rejects the plaintiff's claim on an inadequately explained causation basis and it appears to treat the plaintiff's lack of care for her own safety as relevant to the breach issue. The critical issue was the reasonableness of the defendants' response to the foreseeable risk that persons such as the plaintiff might suffer injury through crossing the garden, particularly when it was dark. This called for an assessment of the totality of the defendants' conduct, informed by consideration of all relevant factors according to the calculus in Wyong Shire Council v Shirt at 47-8. 39 The plaintiff still had to establish that any defect in the cleaning system contributed to her fall, in the sense of showing the probability that a reasonably adequate system would have removed the offending pebbles (cf Kocis at 430-433 per Hayne JA). This is likely to be the thinking lying behind her Honour's brief reference to causation. 40 In my view the fatal defect in the plaintiff's case is the absence of any basis for a finding about a defective cleaning system. The first sentence of the passage quoted at par [37] went no higher indicating the trial judge's opinion that there was evidence suggestive of inappropriate or unacceptable site maintenance. There was no finding to this effect. More importantly, there was in my view no basis for any such finding in light of the evidence as I have analysed it at pars [35]-[36]. 41 The defensive cross appeal proceeded essentially on the written submissions. It took up no extra time at the hearing. In the circumstances, it is unnecessary to address it. 42 The cross appeal should be dismissed with no order as to costs. The appeal should be dismissed with costs. 43 McCOLL JA: I agree with Mason P. 44 HISLOP J: I agree with Mason P.

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