Jacobe v QSR Pty Ltd t/as Kentucky Fried Chicken Lakemba

Issues 3Aside from the preliminary matters of credibility and reliability of testimony, and the determination of matters of disputed fact, the issues calling for decision are as follows: Issue 1 - Whether the circumstances involved an obvious risk within the meaning of s 5G of the CL Act; Issue 2 - Whether the defendant had breached the duty of care it owed to the plaintiff as occupier of the car park; Issue 3 - Whether there was contributory negligence on the part of the plaintiff, and if so, to what extent; Issue 4 - The assessment of damages.

Evidence overview 4In the case for the plaintiff, oral evidence was given by the plaintiff and his wife, Magdalena Tadros. The plaintiff also relied upon expert evidence from Mr Ian Burn, a consulting engineer. Mr Burn's report dated 11 August 2014 was tendered as Exhibit "C". A number of medical reports and records were also tendered in the case for the plaintiff: Exhibit "E". 5In the case for the defendant, oral evidence was given by Ms Mona Frihy and Mr Roderick Rohanna, both of whom were, from time to time, store managers rostered on duty at the premises. The defendant also relied upon expert evidence from Dr John Cooke, a consultant architect. Dr Cooke's reports dated 27 September 2013 and 29 August 2014 with annexures were tendered in a bundle as Exhibit "2". The defendant also tendered a number of medical reports and records in it's case: Exhibits "5" and "6". 6The experts Mr Burn and Dr Cooke met and conferred whilst the case proceeded. As a result of that meeting they narrowed the points of difference in their respective opinions. Exhibit "D". They subsequently gave their evidence concurrently. 7The residual area of dispute within the expert evidence related to first, whether or not a particular Australian standard applied to the wheel stops located in the car park, and secondly, the factual issue of whether or not the car park was adequately lit at the time of the plaintiff's fall. 8The first of those issues was dependent upon the date on which the wheel stop in question had been installed in the car park. In the course of the hearing this was later agreed as having occurred no later than 30 September 2002. 9The second of those issues requires an analysis of the factual accounts from the various witnesses who gave evidence.

Credit 10I found the plaintiff to be an honest witness who did not seek to overstate the effect of his injuries and disabilities. He gave candid evidence on factual matters, including some concessions he made fairly and against his interests. His recollection of the nature and extent of his pre-accident injury history was limited, which led me to conclude that the medical records were more reliable than his recollection on those matters. 11On the critical issue of whether the car park was lit at the time of the accident, the plaintiff's evidence must be evaluated alongside the evidence of his wife and that of Ms Frihy and Mr Rohanna. 12Mrs Tadros gave evidence that was corroborative of the plaintiff and claimed that the lights in the car park were off at the time of the plaintiff's fall. Although I found her to be an honest witness, her evidence along those lines must also be evaluated in a similar manner. 13I found both Ms Frihy and Mr Rohanna to be credible witnesses. There was nothing within their evidence that caused me to doubt the content or the veracity of their evidence. 14The evidence of Ms Frihy centred around the defendant's usual practice concerning the operation of the lighting at the premises. That evidence was not inherently improbable. 15The evidence of Mr Rohanna was similar to that of Ms Frihy concerning the operation of the external lighting including in the car park. He was the store manager who was on duty at the time of the plaintiff's fall. His evidence was not inherently improbable. He was no longer employed by the defendant and there was no apparent advantage to him in tailoring his evidence to suit the interests of his former employer. 16The foregoing credit conclusions indicate that the question of whether the external lighting in the car park was either on or off at the time of the plaintiff's fall stands to be resolved according to an analysis based on the balance of probabilities as to which of the two competing versions within the evidence on the lighting issue was likely to be the most reliable account. 17There were no credibility issues that emerged from the testimony of the opposing expert witnesses.

Facts 18Unless otherwise stated, my findings of fact are as follows.

Plaintiff's pre-injury background 19The plaintiff was born in 1957. At the time of his injury he was a disability pensioner aged 55 years. At the hearing he was in his 57th year. Before becoming a disability pensioner, he had been a salesman. 20Before the subject accident the plaintiff had a number of significant pre-existing health problems. These included morbid obesity, diabetes, sleep apnoea, and hip problems, for which he was awaiting hip replacement surgery. He was of relatively short stature, namely 156cms. 21On 2 August 2012, which was 3 months before the accident, the plaintiff's weight was recorded as being 129kgs, which must be taken as being very heavy for his height. Before the subject accident, on occasions, he required the use of a walking stick: T40.28. He also had a shortened left leg due to congenital factors. 22Before the subject accident the plaintiff had incurred a number of other injuries due to several falls. In August 2013, which was after the subject accident, he also sustained a neck injury in a motor vehicle accident.

Pre-accident medical issues 23The plaintiff had difficulty recalling details of his pre-accident medical history and the details of other injuries he had suffered in previous falls: T22 - T34. 24Notations within the general practitioner's file tendered on behalf of the plaintiff make reference to a range of pre-accident health issues, including a mental health plan, respiratory problems, dermatological conditions, diabetes and other endocrine problems, blood tests of various kinds, chronic obstructive pulmonary disease from smoking, neuropathy, and morbid obesity. 25The general practitioner's records tendered by the defendant, which were different to those tendered by the plaintiff, went back to 2007, and revealed a wider range of longstanding pre-accident medical issues, including hypertension, neck pain, low back pain, right knee pain, pulmonary problems, endocrine problems, and earlier hospital emergency department attendances. 26In December 2007, Mr Daniel Rowland, a psychologist, wrote to the plaintiff's general practitioner to outline some psychological issues the plaintiff was experiencing due to stress, for which he expressed a guarded prognosis. 27In early 2010, the plaintiff was issued with medical certificates concerning low back pain due to disc protrusions, lumbar spinal canal stenosis, and right knee pain. 28On 4 September 2010, the plaintiff attended the emergency department of Canterbury Hospital where he was treated for the effects of a fall when he tripped over the edge of a kerb, which resulted in bruising to his left forearm. 29On 22 October 2010, the plaintiff's general practitioner prepared a medical certificate addressed to Housing NSW stating the plaintiff had several medical and musculoskeletal conditions, including low back pain, morbid obesity, hypertension, sleep apnoea, Type II diabetes, osteoarthritis in both knees and carpal tunnel syndrome. He also recorded some behavioural issues concerning occasional depression, memory loss, social withdrawal, aggression, and disinhibited behaviour. 30On 31 May 2011, the plaintiff had seen Dr Geoffrey Rosenberg, a consultant orthopaedic surgeon. The presenting problems were noted to have been disabling pain in his right hip, with associated stiffness. It was noted the plaintiff had a short left leg due to collapse of the hip resulting from Perthe's disease in childhood. He was referred to Dr Ron Sekel for consideration of left hip arthroplasty. Instead, he was seen by another orthopaedic surgeon, Dr Rowland, who noted that there was a likelihood of the plaintiff being refused anaesthesia for that procedure because of apparent risks due to his conditions of health. 31On 12 January 2012, which was 4 months before the subject accident, the plaintiff attended the emergency department of Canterbury Hospital where he was treated for an avulsion fracture of his right ankle after slipping on a towel on a wet bathroom floor. He was given a CAM boot, crutches, analgesia, and advised to seek follow-up with his general practitioner. 32The plaintiff's claim for damages arising from the subject accident stands to be evaluated against that background.

Accident circumstances 33Over the course of a number of years, the plaintiff had been to the defendant's premises on many previous occasions without incident: T34.35. He also knew that the car park tarmac had a number of concrete wheel stops fixed to its surface: T37.14. 34On the evening in question, the plaintiff had been driven to the premises by his wife: T89.40. She had parked in the disabled parking place in a front-to-kerb position adjacent to the front entrance (T96.23), as had occurred on many previous occasions: T36.39; T40.46. 35The position of the vehicle parked by the plaintiff's wife is demonstrated in the scene depicted in the following photograph which comprises Figure 4 copied from Exhibit "C": 36The plaintiff claimed that on the night in question, the external lighting that normally illuminated the car park of the premises during night time trading hours had been switched off, although the lights within the premises were on: T37.30; T43.45; T46.34; T49.46; T50.3; T51.4. 37The plaintiff claimed that the premises "always had them [the external lights] off": T37.38 - T38.32. He also stated that an outside advertising sign located on a pole outside the premises was illuminated: T38.49; T49.49; T50.7. He said that such outside lighting from the street provided very little light, which was dull: T55.23; T54.47. 38Mrs Tadros also claimed that the car park lights were off and that it was dark in that area: T90.42; T93.19; T93.35; T93.46; T95.42; T96.35. 39The plaintiff and his wife had been in the premises for what the plaintiff thought was about 30 minutes and for a time that Mrs Tadros thought was longer, during which time they consumed a meal. On finishing the meal the plaintiff walked from the front door towards the car park. In that regard, Exhibit "A" page F shows the plaintiff's exit pathway, albeit as seen in daylight, to be as follows: 40That photograph also shows the relevant concrete wheel stop located on the tarmac of the premises. 41On leaving the premises, the plaintiff took the right pathway whilst walking with his walking stick in one hand and a can of soft drink in the other hand: T41.2 - T41.4; T42.44. He claims that in darkness, he walked down the right pathway, across a garden bed and he then stepped down onto the tarmac: T41.41. The route he took in that regard is shown by the thin red line that he had applied to Exhibit "A" at page G when he gave his evidence, as follows: 42The plaintiff arrived at the tarmac without incident. He then walked around the front of the parked vehicle and towards the passenger side: T39.18. The route that he had taken on that occasion was marked with a thick black line as is shown in Exhibit "A" at page B, as follows: 43When the plaintiff walked past the front of the vehicle he then turned to the left to proceed towards the passenger side of the vehicle when he tripped over the concrete wheel stop located near the front left passenger wheel: T54.27. At that time he said he could see the vehicle, and said that was "about it": T54.50. He said he did not see the concrete wheel stop: T55.45. He also added that he did not look at the area where he was intending to walk: T55.49. 44In those events, the plaintiff said he had not remembered the presence of the wheel stop on the tarmac from his previous visits and he said that he had not seen it on this occasion: T56.41; T57.39. It is plain that he did not see the wheel stop because he had not looked in that direction. He agreed that in those events he had been careless: T56.50. He also agreed that he had not looked down before he turned to the left, tripped and fell: T59.19. 45When the plaintiff fell, his left shoulder struck the passenger side mirror which then broke. In those events, the plaintiff fell to the ground and screamed in pain. The store manager, Mr Rohanna, then came out and quickly assisted the plaintiff to his feet. He enquired after the plaintiff's wellbeing, asked him whether he needed an ambulance, and when this was declined, he provided the plaintiff with a bottle of water. 46The plaintiff said that at the accident scene he had asked Mr Rohanna why the car park lights had not been switched on at the time of his fall. Mr Rohanna denied that after the plaintiff had fallen the plaintiff had asked him why the premises were so dark: T118.23; T124.22. 47The question of whether those lights were on or off must be determined from a comparative analysis of the evidence of the plaintiff, his wife, Ms Frihy and Mr Rohanna. 48Ms Frihy's evidence was limited to describing the lighting configuration of the external signs and in the car park, which were operated by a single switch from inside the premises which, according to her training, was switched on each afternoon before dark, whenever she was on duty for the evening shifts: T99.7; T100.5 - T100.36; T101.50 - T103.5; T104.12; T105.17. 49Mr Rohanna's evidence as to the operation of those lights by a single internal switch was along similar lines: T112.22; T112.40 - T112.44; T114.3; T120.10 - T120.19. He had never experienced a situation where the external lights on the power poles were off, but at the same time the external KFC advertising signs were illuminated: T114.8. He said on the night of the plaintiff's fall, that lighting was on: T115.34. He could not recall any instance of a malfunction in the lighting: T120.27. 50Although Mr Rohanna could not say exactly what time the lights were activated on the day of the plaintiff's fall, other than by reference to what he would normally have done on the day (T121.25), I do not see that as a sound basis for rejecting his evidence that the lights were on at the time of the plaintiff's fall: T115.21 - T115.34. 51In evaluating the competing versions as to whether or not the car park lighting was on, I consider that the plaintiff and his wife were mistaken in their evidence to the effect that the lighting was off. I consider it was unlikely that the lighting was "always" off at night as stated by the plaintiff. I consider the plaintiff's description in that regard reveals an important inaccuracy in his evidence which has also affected the evidence of Mrs Tadros. 52I have given careful consideration to the evidence of Ms Frihy and Mr Rohanna as to the usual practice for switching on the car park lights and the advertising lights for the evening shift at the premises. They described, and I accept, that there was a common switch for those lights. 53I accept the evidence of Mr Rohanna that those lights were on at the time the plaintiff fell. I find that the evidence of the plaintiff and his wife, to the effect that the car park lights were off although the external advertising sign lights were lit, to be most improbable in the absence of evidence of a malfunction of those lights or of the associated switching mechanism that controlled those lights. 54The evidence of the respective experts must be considered in conformity with that finding.

Injuries 55After the plaintiff's left shoulder had made contact with the passenger side mirror of the parked vehicle, he fell forward, in a twisting movement, and in doing so, he fell onto his right knee, right ankle, and his feet. His whole body, particularly his right shoulder, made contact with the ground: T13.45; T14.14; T14.20. His right shoulder was also bruised in the fall: T15.42.

Treatment and subsequent assessments 56At the accident scene, the plaintiff declined Mr Rohanna's offer of a call for an ambulance to assist him. At some later stage the plaintiff saw his general practitioner who referred him for an x-ray examination. 57On 10 May 2012, at the request of his general practitioner, the plaintiff underwent an x-ray of his left shoulder and right ankle. This revealed mild osteoarthritis in the shoulder and the presence of a small bony fragment in the anterior aspect of the head of the talus bone. The context of those investigations was not made clear. 58On 11 May 2012 the plaintiff attended his general practitioner who recorded a history of a fall with injuries to an unspecified shoulder and ankle. He was prescribed rest and analgesia, and referral to a Dr Fong. 59The general practitioner's records form part of Exhibits "E" and "6". They show some 19 consultations between 11 May 2012 and 4 July 2013. Not all of those consultations were injury related. 60On 2 August 2012, the general practitioner's records tendered on behalf of the plaintiff show the plaintiff weighed 129kgs. Those notes also record the plaintiff subsequently weighed 143kgs. 61On 24 September 2012, at the request of his solicitor, the plaintiff was assessed by Dr Mathew Giblin, a consultant orthopaedic surgeon. Dr Giblin considered that the accident in question had caused the plaintiff to suffer soft tissue injuries to his neck, left shoulder, right knee and right ankle. He also considered the plaintiff had suffered an aggravation of pre-existing problems regarding his low back and right hip. At that time Dr Giblin considered that the plaintiff required further investigations and stated that he had not yet reached a stage of maximum medical improvement. 62On 19 September 2013, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Frank Machart, a consultant orthopaedic surgeon. Dr Machart considered that in the subject accident, the plaintiff had suffered a strain to his left trapezius muscle above the shoulder, and implied that the other areas of the plaintiff's complaints concerning bodily discomfort had a later onset due to underlying arthritis, the passage of time and the plaintiff's obesity. 63Neither of those experts were called to give oral evidence or for cross-examination on their respective reports. This created a difficulty in analysing the content of their reports in light of the plaintiff's current complaints.

Disabilities 64The plaintiff currently has continuous pain in his left shoulder. He describes that pain as feeling like electric shocks in his left arm. At times these problems keep him awake at night. He described such problems as getting worse over time. He also experiences similar problems in his right shoulder, but the left shoulder was worse than the right. 65The plaintiff has ongoing pains in his right knee and right ankle, with frequent cramps in both legs. His hip pain has become worse since the subject accident. He frequently takes strong pain killing medication on a daily basis. He has not experienced any improvement in his overall condition. 66The plaintiff has become less active since the subject accident. He now requires help around the house and with lawn mowing, although no monetary claim is made for the cost or value of such assistance. 67In view of the very limited medical evidence as to the plaintiff's past history and treatment, together with the plaintiff's poor recollection of his pre-accident problems, which were clearly present to a significant degree, I find it difficult to ascribe all of the plaintiff's complaints to the fall at the defendant's premises on 9 May 2012. In examining the medical reports I consider that Dr Machart's report as summarised above is the most recent, and is unchallenged, I consider that it most accurately and aptly sums up the plaintiff's situation. 68Since the subject accident, and since 2013, when he feels able to do so, the plaintiff occasionally works as a hire car driver. He has been informing Centrelink of any earnings he intermittently derives in that regard.

Expert evidence 69The experts carried out their separate examinations of the accident site well after the event and not in identical conditions. Furthermore, by the time they visited the site, the maintenance and lighting conditions at the site had changed since the plaintiff's fall. 70In their oral evidence, the experts moved on from the initial reports which they had respectively provided, and they recorded their areas of agreement into a document: Exhibit "D". The essence of those agreements is as follows: (1)From 1993, the applicable Australian Standard was AS2890.1:1993. That Standard provided for wheel stops to be no longer than a maximum of 2 metres: Exhibit "D";T64.45 - T64.50; (2)From 2004, the subsequent Australian Standard known as AS2890.1:2004 provided for the maximum length of a wheel stop to be 1650mm, plus or minus 50mm: Exhibit "D"; T65.8; (3)From 1999, Australian Standard AS1156.3.1 provided that the lighting standard for disabled parking is to be greater or equal to 7 lux: Exhibit "D"; (4)From 2005, Australian Standard AS1153.3.1 provided that the lighting standard for disabled parking is to be greater than or equal to 14 lux: Exhibit "D"; (5)At the accident site, the shaded lighting measurement carried out in conformity with AS1680.0:1998 Appendix C was estimated at 10.6 lux: T66.41 - T67.5; (6)At the accident site, the unshaded lighting measurement carried out in conformity with AS1680.0:1998 Appendix C was estimated at 25.8 lux: T66.41 - T67.5; (7)The measurements in (5) and (6) above were not taken in circumstances that precisely simulated the conditions which prevailed at the site of the plaintiff's accident on 9 May 2012. 71The experts were careful to note that the standard for measuring illuminance in both shaded and unshaded conditions according to AS1680.0:1998 Appendix C applied to interior lighting and not to outdoor car parks, although it was their view that standard provided some guidance to the measurement of lighting in such areas. 72In the oral evidence of the two experts given concurrently, the following matters were agreed: (1)In interpreting the applicable standard, the lighting requirements for an unshaded disabled car park space was 25.8 lux and 10.6 lux for a shaded disabled car park space: T66.41 - T67.5; (2)A single lux is defined as the amount of light from a full moon on 1 square metre of ground at the equator so that on a full moon, the lighting is described as being roughly 1 lux: T69.29; (3)By way of analogy expressed in practical terms, illumination of 14 lux (as provided by AS1153.3.1) is the equivalent of what can be observed in circumstances of atmospheric darkness when standing under a 6m to 7m high 40 watt single globe street light when the observer is positioned 5m away from that street lamp: T71.20; (4)To assist in a comparative understanding the above evidence as to illumination levels: (a)Office space requires an illumination of 160 lux; T69.44; (b)The court room illumination was estimated to be between 100 lux to 150 lux: T69.42; (c)Battery operated emergency lighting in a stairwell or fire escape of a city building would be expected to be a minimum of 0.2 lux: T70.7 - T70.46; (d)Fire stairs lit in non-emergency conditions in a city building would normally be lit at the level 20, 30 or 40 lux: T70.47; (e)Stairs in a city building are required to be lit at 80 lux or thereabouts: T70.49; (f)Stair landings in a city building would be expected to be lit at 40 lux: T71.7. 73As to the photographs Mr Burn had incorporated into his report, these were taken without a flash at normal shutter speeds which he thought were "pretty close to what the human eye would see" (T75.34) but there would be variations expected in the rate at which eyes would accommodate to the low light conditions, including age variations: T76.45 - T77.8. 74Questions of visual adaptation of the eyes to low light conditions are always difficult: T78.8. In my view, without specific, suitably qualified, and focussed expert evidence on the eyesight and visibility issues, the expert evidence on that lighting question was of very limited utility in the context of this case due to its inherent lack of precision. 75The experts proffered differing views on the significance of the different provisions for the appropriate lengths for wheel stops. Mr Burn thought that if the wheel stop was 30cms shorter than it was, then there would not have been a protrusion beyond the width of the vehicle, so that the plaintiff would not have encountered the protrusion: T79.21. That view was necessarily subjective as it depended upon the selection of the position in which the vehicle was parked within the available space in the disabled parking spot: T79.8. 76In contrast to that position, Mr Burn also agreed that assuming adequate lighting, a larger protrusion due to a 2m long wheel stop afforded a pedestrian such as the plaintiff a better opportunity to see it: T79.48; T80.16. 77Dr Cooke indicated that there was no indication for shortening the 2m wheel stop unless a safety audit report required that to be done in the event a hazard had been identified: T81.45. There was no evidence of such an audit having taken place within the relevant time frame: T82.1. 78In this case, in the absence of an identified hazard in a safety audit, there was no indication that required a shortening of the wheel stop on which the plaintiff tripped, from 2m on the 1993 Standard to 1.65m +/- 50mm on the 2004 Standard: T82.1 - T82.30. Otherwise, Dr Cooke did not consider that a shorter wheel stop would have been a significantly lesser trip hazard: T82.50; T83.49. 79Dr Cooke was unaware as to why the Standard had been changed from 2m to 1.65m: T83.1. Significantly (at T83.30 to T83.37), Dr Cooke identified the purpose of the Standard to be as follows: "WITNESS COOKE: Yes, I do. The function of the wheel stop in the disabled car space is the same as that of other wheel stops and that is, it's really, has three purposes. It prevents vehicles from causing damage to the building by running into the side of the building. It prevents, and also it prevents injury to pedestrians that might be on the pathway, for example, in this case in front of the car space. And it prevents damage to vehicles caused by running into the building. As I say, the standard requires wheel stops to be provided for those purposes." 80It was a curiosity that the car park in question had a number of wheel stops of different lengths as was observed by the experts. In my view nothing turns on that fact. Instead, the critical issues are the consideration of the dimensions and the placement of the wheel stop upon which the plaintiff tripped and fell in terms of visibility, foreseeability of hazard, and accident prevention.

Issue 1 - Whether the risk was obvious 81Before considering whether there was a breach of the duty of care owed, it is necessary to first determine whether at the time, the risk of tripping in the car park was, in the circumstances, an obvious one to a reasonable person in the position of the plaintiff. It is necessary to examine this issue first because the defendant did not have a duty to warn the plaintiff of risks of injury that were obvious to him: s 5G and s 5H of the CL Act. 82Section 5G of the CL Act provides: "5G Injured persons presumed to be aware of obvious risks (1) In proceedings relating to liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk. (2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk." 83Section 5H of the CL Act relevantly provides: "5H No proactive duty to warn of obvious risk (1) A person ("the defendant" ) does not owe a duty of care to another person ("the plaintiff" ) to warn of an obvious risk to the plaintiff. ..." 84The plaintiff had been in the car park in question on a number of occasions before the subject accident. As a result, I consider that he ought to have been aware of the presence of the concrete wheel stops on the car park tarmac. 85The plaintiff claimed that on the evening of the accident he had not remembered that there were concrete wheel stops located on the tarmac. However, given he had previously attended the premises and had used the car park on many previous occasions, I do not consider that it could be reasonably said and acceptably found that he was not aware of the risk of tripping and falling on the concrete wheel stop: s 5G(1) of the CL Act. 86In those circumstances, I find that from the plaintiff's background knowledge, and from what must have been visible in the car park, a reasonable person in the position of the plaintiff at the time would have been aware that there was an obvious risk of tripping and falling over a wheel stop such as the one in question in this case: s 5G(2) of the CL Act. 87The plaintiff must therefore be presumed to have been aware of the risk of injury due to tripping and falling in the manner that he did on the day of the subject accident: s 5G(1) of the CL Act. 88As I have found that the risk in question was an obvious one, the defendant did not owe the plaintiff a duty to warn him of the presence of the wheel stop in the car park: s 5H(1) of the CL Act.

Issue 2 - Duty of care and alleged breach 89The defendant owed the plaintiff a duty to exercise reasonable care for his safety whilst he was in the premises. Although the claim was pleaded in both tort and contract, there is no material difference in the nature or the content of the duty that was owed by the defendant in the circumstances. 90In his further amended statement of claim filed in court by leave at the commencement of the hearing, the plaintiff alleged that the defendant was in breach of that duty, as summarised below: (1)Failure to provide the plaintiff with sufficient lighting to the car park for him to identify objects that could obstruct his path whilst he was walking in the car park; (2)Failure to warn the plaintiff of the danger of walking in the car park at night; (3)Installing a concrete wheel stop on the tarmac that was too long, and which protruded beyond the width of a motor vehicle, thus creating a hazard to pedestrians in the car park, and which did not constitute an obvious risk. 91The question of whether the defendant had been negligent requires a consideration of the evidence within the framework of s 5B of the CL Act, which provides as follows: "5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm."

As to (1) - adequacy of lighting 92Given my finding that the car park lighting was on at the time the plaintiff fell, from which it follows that the wheel stop could have been readily seen at the time the plaintiff was walking in that vicinity, the issue of whether the defendant was negligent falls to be determined by a consideration of the expert evidence. 93It is plain from the evidence of the experts that the wheel stop would have been visible to the plaintiff even at relatively low levels of external lighting. 94This lighting would have been from the external car park lights, the external advertising sign, and to a lesser extent, from light emanating from within the premises through the glass windows adjacent to the car park. 95According to the requirements of s 5B of the CL Act, nothing further was required of the defendant by way of precautions reasonably required to alert the plaintiff to the presence of wheel stops on the tarmac of the car park.

As to (2) - no need for a warning 96In view of my findings at paragraphs [81] to [88] above concerning the obviousness of the risk of tripping on the wheel stop, the defendant did not have a duty to warn the plaintiff of that risk: s 5H of the CL Act.

As to (3) - length of wheel stops 97According to the evidence of Dr Cooke, which I accept, the length of the wheel stop was an irrelevant factor in the circumstances of this case. It was not a hidden trap or hazard that was concealed from view. Had the plaintiff looked down to where he was placing his feet, in the lighting conditions that prevailed at the time, he would have seen the wheel stop which was in plain view. 98In my view that conclusion is supported by Mr Burn's concession that a longer and protruding wheel stop was more readily observable to a pedestrian negotiating that area: T79.48; T80.16.

Conclusion on alleged negligence 99The findings in paragraphs [89] to [98] above lead to the conclusion that the plaintiff has failed to establish that the defendant was negligent as claimed.

Issue 3 - Contributory negligence 100The defendant also relied upon an alternative defence of alleged contributory negligence, a condensed summary of which is as follows: (1)Failure to take the most suitable and appropriate route whilst using a walking stick; (2)Failure to observe the wheel stop which was stated to be white in colour and clearly visible against the contrasting black tarmac surface, thereby failing to keep a proper lookout and take adequate care for his own safety:

As to (1) - alleged inappropriate choice of route for walking 101As to (1) above, the basis of the defendant's allegation that the plaintiff took an inappropriate route for walking through the car park was that the plaintiff had chosen to turn right at the exit door of the premises instead of the arguably more prudent course of walking straight ahead and down the paved ramp to the tarmac area. 102This allegation was relied upon by the defendant because, in order for the plaintiff to arrive at the position in the car park where he could enter his wife's parked vehicle after taking that right hand pathway, he had to walk to the edge of the retaining wall adjacent to the garden bed (which he achieved by uneventfully walking across the garden bed) and then step down onto the tarmac of the car park in order to walk around the front of the vehicle so he could get to the passenger side door. 103The defendant's argument was simply that if the plaintiff had not turned right on exiting the KFC premises, and if he had instead simply walked straight out of the premises using the splayed concrete walkway onto the tarmac, he would have walked behind the parked vehicle. He would have then been able to enter the left passenger side door without encountering the concrete wheel stop on which he ultimately tripped. 104In my view that argument should not be accepted as it is an opportunistic one driven by convenient but inappropriate hindsight considerations: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442, at [124]. 105The entire area of the car park tarmac was available for use by pedestrian traffic except at the points involving the obvious risk of tripping, such as the raised structures that comprised the concrete wheel stops. In those areas, pedestrians keeping a proper lookout for their own safety would have to step over those objects. 106Once the plaintiff had safely reached the tarmac area, at whichever point adjacent to the vehicle, either at the front or at the rear of the vehicle, he was then entitled to walk towards the passenger side of the vehicle by whichever route he chose to follow. This was subject to the overriding duty he had to take reasonable care for his own safety. 107In my view, no contributory negligence arises from the plaintiff's choice of route to get to the passenger side of the parked vehicle. This view may well have been different if, for example, the plaintiff had fallen whilst stepping down from the high kerbed edge of the pathway onto the tarmac, especially given his intermittent need to use a walking stick for support, his shortened left leg, and because of the unusual and awkward height of that step down onto the tarmac.

As to (2) - alleged failure to keep a proper lookout 108As to (2) above, the plaintiff admitted that he had tripped over the concrete wheel stop at a time where, beforehand, he had not looked down to where that wheel stop was located. He had not looked where he was going before stepping toward the wheel stop, and he then tripped. 109I have found that on the evening in question, the lighting in the car park was sufficient for the plaintiff to have observed the presence of the concrete wheel stop had he looked down towards where it was located on the tarmac and before he had stepped towards that structure. The concrete wheel stop was more probably than not of a much lighter appearance to the surrounding tarmac, which would have been of a much darker appearance. 110In those circumstances it is not necessary to determine whether the wheel stop was painted white, or whether it was simply a natural light grey concrete colour, as appears in the various photographs that were taken much later. 111In that regard, the photographs tendered are not a particularly useful guide to that issue because of the well-settled limits to which inferences may be drawn from such evidence. This is especially so given that the photographs significantly post-dated the plaintiff's fall. Absent evidence as to the maintenance or structural history of the area between the time of the plaintiff's fall, and evidence of the time when the photographs were taken, other than to conclude that the wheel stop was clearly visible, it is difficult to draw precise inferences as to the appearance of the colouring of the wheel stop as at the time of the plaintiff's fall: Blacktown City Council v Hocking [2008] NSWCA 144. 112However, it is plain that a material cause of the plaintiff's fall was that he tripped on the wheel stop. This constitutes factual causation: s 5D(1)(a) of the CL Act, but that is not the end point of the analysis. 113In my view, the plaintiff would not have tripped and fallen on the wheel stop if he had first looked down and seen that object, and then adjusted his gait and his approach, to avoid tripping on it. In my view, this indicates that the defendant has established the relevant scope of liability or legal causation necessary for a finding of contributory negligence against the plaintiff: s 5D(1)(b) of the CL Act. 114Those circumstances therefore mandate that there must be a finding of contributory negligence on the part of the plaintiff.

Apportionment 115Notwithstanding my finding that the plaintiff has not established that the defendant had been negligent, lest it be held on appeal that my finding in that regard involves error, in accordance with convention, it is necessary to say something concerning the just and equitable apportionment of the respective culpabilities of the parties: Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALR 529; s 5R and s 5S of the CL Act. 116Section 5R of the CL Act provides: "5R Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time." 117Section 5S of the CL Act provides: "5S Contributory negligence can defeat claim In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated." 118A reasonable person in the position of the plaintiff would have looked where he was walking before turning at the tripping point where the plaintiff fell. This is because the premises were adequately lit and the plaintiff ought to have known that the wheel stops were present and posed a potential tripping hazard to him: s 5R(2)(b) of the CL Act. 119In weighing those considerations, I find that the overwhelming cause of the plaintiff's fall, and his related injury, was his failure to look to see where he was placing his feet as he walked towards the parked vehicle, and his related failure to avoid the wheel stop. This must be reflected in any apportionment. 120In considering the just and equitable apportionment of the respective responsibilities for the plaintiff's injury, I find that the plaintiff's contributory negligence totally eclipses any assumed negligence of the defendant, and it should be assessed at 100 per cent on the part of the plaintiff, and zero per cent on the part of the defendant: s 5S of the CL Act.

Issue 4 - Assessment of damages 121Notwithstanding my finding that the plaintiff has not succeeded on the liability issues, lest it be held on appeal that my liability findings involved error, and in accordance with convention, it is also necessary to record my findings on the assessment of the plaintiff's damages on the assumption that he had succeeded in showing negligence on the part of the defendant. 122The only damages claim the plaintiff makes is for non-economic loss which must be assessed pursuant to s 16 of the CL Act. 123The parties made disparate submissions on that issue. On behalf of the plaintiff, it was submitted that such damages should be assessed at between $20,000 and $40,000: T4.9. On behalf of the defendant, it was primarily submitted that such damages do not exceed the assessment threshold of 15 per cent of a most extreme case, as is required by s 16 of the CL Act, but alternatively submitted that any damages assessed pursuant to that section should be assessed at the lower end of any range at no more than $10,000: T6.4. 124Having regard to the medical evidence that I have reviewed and summarised at paragraphs [23] to [31] and [55] to [63] above, and having regard to my findings at paragraphs [64] to [68] above as to the plaintiff's disabilities and the effect the injuries have had on the plaintiff's life, and his ability to enjoy the amenity of his life, I assess those damages at 18 per cent of a most extreme case, which, on the applicable scale referred to in s 16 of the CL Act, is the monetary equivalent of $14,000. 125If the plaintiff had established an entitlement to a verdict and judgment in his favour, his damages would have been assessed in the amount of $14,000.

Disposition 126The plaintiff has failed to establish that the defendant was responsible for his injuries. The defendant is therefore entitled to a verdict and judgment in its favour.

Costs 127The defendant is entitled to have its costs of the proceedings paid by the plaintiff on the ordinary basis unless a party can show an entitlement to some other costs order.

Orders 128I make the following orders: (1)Verdict and judgment for the defendant; (2)The plaintiff is to pay the defendant's costs of the proceedings on the ordinary basis unless either party can show an entitlement to some other order for costs; (3)The exhibits may be returned; (4)Liberty to apply on 7 days notice if further orders are required. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 September 2014