Jane Luu v Bernard Chan Nominees Pty Ltd trading as Cabramatta Plaza and another

District Court of NSW|2005-06-16

CITATION: Jane Luu v Bernard Chan Nominees Pty Ltd trading as Cabramatta Plaza and another [2006] NSWDC 116

DECISION: Verdict and judgment for the plaintiff against the first defendant; Verdict and judgment for the second defendant against the plaintiff; Verdict and judgment for the cross-defendant against the cross-claimant; Order the first defendant to pay the plaintiff's costs, including costs payable by the plaintiff to the second defendant; Order plaintiff to pay the second defendant's costs; Order cross-claimant to pay the cross-defendant's costs

CATCHWORDS: Occupier's liability - Trip and fall in a carpark owned by shopping centre owner but let to Council - Who was occupier? - Whether occupier liable for defect in concrete between a raised kerb and a sloping ramp - David Jones Ltd v Bates [2001] NSWCA 233 - Turnbull v Alm [2004] NSWCA 173

CASES CITED: David Jones Ltd v Bates [2001] NSWCA 233 Turnbull v Alm [2004] NSWCA 173

Jane Luu (plaintiff) PARTIES: Bernard Chan Nominees Pty Ltd trading as Cabramatta Plaza (first defendant / cross-claimant) Fairfield City Council (second defendant / cross-defendant)

E. Welsh (for plaintiff) COUNSEL: R. Sheldon (for first defendant / cross-claimant) W. Reynolds (for second defendant / cross-defendant)

1 His Honour: The Plaintiff, Mrs Jane Luu of St John's Park, brings an action for damages for personal injury suffered by her on 4 July 2002 when she tripped and fell in what is known as the "Woolworths Carpark", part of the "Cabramatta Plaza" at Cabramatta. Her cause of action is in negligence. She brings that the action against two defendants, Bernard Chan Nominees Pty Ltd, the owner of Lot 13 in DP731003 on which stands both the buildings known as the "Cabramatta Plaza" and the "Woolworths Carpark" ("the owner") and Fairfield City Council to whom the owner granted a lease commencing on 1 July 1994 over the outdoor area of the lot open to the public known as the "Woolworths Carpark" ("the Council"). The plaintiff alleges that both the owner and the Council were the occupiers of the area where she tripped and fell. The major tenant of Cabramatta Plaza is a Woolworths supermarket and the Council erected signs identifying the carpark as the "Woolworths Carpark", but Woolworths has no involvement in the current matter. I shall refer to the "Woolworths Carpark" as "the carpark".

2 The owner became the registered proprietor of the land known as Lot 13 DP731003 on 11 December 1986. Whether the building(s) known as "Cabramatta Plaza" had then been erected the evidence does not disclose. The eastern boundary of the lot faces Railway Parade whence there is pedestrian access. The western side of the lot faces Park Road whence there is vehicular and pedestrian access. The southern side of the lot faces Hughes Street whence there is also vehicular and pedestrian access. The northern side of the lot adjoins other parcels of land, on one of which is erected the Fairfield City Library. At all material times Peter A Simon Real Estate of Bankstown have been the managing agents of the Cabramatta Plaza. One of their principals, Mr Andrew Kapos, gave evidence on behalf of the owner.

3 Cabramatta Plaza is very close to Cabramatta Railway Station. Unless the owner could limit the time within which vehicles could be left in the carpark, commuters would park there all day. An effective way of limiting carparking time is the imposition of a fine for overstaying. A private company could not impose a fine. A local council can. Hence the motive to let the carpark to the Council. The owner granted a lease to the Council for one year commencing on 1 July 1994, at a rental of $1-00 per annum. The evidence does not disclose the granting of any further lease. Clause 5.1 commences:

"Should the lessee continue to occupy the premises beyond the expiration of the term of this lease (otherwise than pursuant to the grant of a further lease), he shall do so as a monthly tenant only at a rental payable monthly in advance…"

4 The evidence persuades me that, at all relevant times, the Council continued to "supervise" the carpark in accordance with the lease which commenced on 1 July 1994 pursuant to a holding over in accordance with clause 5.1. That evidence is: (a) a council sign erected at the Hughes Street entrance to the carpark, shown on photographs Exhibits 2 and 3, in situ in January 2005 and for a number of years before that but removed shortly before the hearing of this matter. The sign stipulates parking restrictions. There may have been a similar sign at the Park Street entrance;

(b) the regular patrolling of the carpark by officers of the Council, for the purpose of fining those who overstay, as deposed to by Mr Kapos.

5 The lease is not a model of the draftsman's art. It appears to be a standard lease prepared for those renting shops on Cabramatta Plaza, "modified" for the current purpose. Clause 1.1(n) contains the following definition: "(n) "Parking Restrictions" in respect of the following area is defined as follows: Car spaces - 2 hour parking restrictions; Roadways and carriageways for motor vehicles - no standing at any time. Loading bay - restricted to the delivering, loading or unloading of the goods to or from the Lessee retailers of the shopping centre.

These restrictions shall be in force during the following times: 8:30 a.m. to 5:30 p.m. Monday to Wednesday, Saturday and Sunday, 8:30 a.m. to 9:30 p.m. Thursday and Friday."

6 Section 8 of the lease is headed "Lessee's use of the premises", the first three clauses of which are: "8.1 The lessee shall not use the premises or permit or suffer the same to be used for any purpose other than for the purpose of free public Shopping Centre carparking and not to restrict or permit any restriction to the use of the Demised Premises as a free public Shopping Centre carpark, subject to Parking Restrictions. 8.2 The lessee shall during the Term permit and reserve to the lessor and its servants, agents, customer suppliers and other persons authorised by the lessor and the servants, agents, customers suppliers and other authorised persons of any associated or related company of the lessor or any of the lessor's other lessees or sublessees of the centre, a right of carriageway (with or without shopping trolleys or vehicles) over and through the Demised Premises but subject to reasonable direction and control of the lessee to ensure reasonable minimum of traffic congestion.

8.3 The lessor does not in any way warrant that the leased premises are or will remain suitable or adequate for any of the purposes of the lessee and to the full extent permitted by law all warranties as to suitability and as to adequacy implied by law are expressly negatived."

7 Clause 8.4 contains a usual list of prohibitions found in many commercial leases. There is no clause 8.5. Clause 8.6 is:

"8.6 As general provisions regarding use of the lessee's premises, the lessee shall: (a) Should the lessee receive any notice from any statutory, public, municipal or other competent authority with respect to the premises, forthwith give notice thereof in writing to the lessor."

8 Section 9 is headed "Maintenance and Repairs ". Clause 9.1 is:

"9.1 The lessor will, during the whole of the term and otherwise so long as the lessee may remain in possession or occupation when, where and so often as need be maintain, replace, repair and keep any parking restriction signs and particularly all and any plate glass, machinery, plant, equipment, fixtures and things which at any time during the term or possession or occupation as aforesaid shall be erected installed or brought on therein by the lessee in good and substantial repair working order and condition."

9 One will note the incongruity of "any parking restriction signs and particularly all and any plate glass, machinery, plant" etc! Clause 9.2 is the usual "making good" clause at the expiration of the lease.

10 Section 10 is headed "Alterations and Lessor's Right to repair etc". The clauses in this section appear to be stranded clauses for the letting of a shop in a shopping complex. The lessee's right to make alterations or additions is limited to those approved by the lessor. The lessor's rights are paramount.

11 Section 13 contains a standard covenant for the quiet enjoyment of the demised premises: quiet enjoyment of a public carpark!

12 Section 14 contains "Indemnities". Clause 14.1 is:

"14.1 The lessee agrees to occupy, use and keep the premises at the risk of the lessee and hereby releases to the full extent permitted by the law the lessor and its servants, agents, employees and invite es i n the absence of any negligence on their part from all claims and demands of every kind resulting from any accident, damage or injury occurring therein and the lessee expressly agrees that in the absence of any such negligence as aforesaid, the lessor shall have no responsibility or liability for any loss of or damage to fixtures and/or personal property of the lessee." ( My emphasis )

13 Section 14.2 contains a number of indemnities in favour of the lessor. That number (d) is:

"(d) loss, damage or injury to property or person within or about the centre occasioned by any act, omission, neglect, breach or default in the lessee or of the lessee's servants agents or sub-tenants;" ( My emphasis )

14 Looked at as a whole, the only direct benefit of this lease to the Council would be income derived from the parking fines and, perhaps, a more efficient control of parking within the Cabramatta shopping centre. The direct benefit to the owner is the regulation of parking time within the carpark, for the benefit of shoppers and shopkeepers.

15 There is no direct evidence as to when the carpark was formed, laid out or paved. The inference to be drawn from the lease itself is that that had been done proper to its commencement, i.e. prior to 1 July 1994. There is no evidence of any actual construction or repair work having being done to the carpark by the Council. There is, in fact, evidence to the contrary. In cross-examination by Counsel for the Council, Mr Kapos said:

"Q. I take it therefore that that when you go three times a week, part of your time is walking about the carpark area? A. Yeah well yes, generally yes.

Q. And if you saw something that needed to be attended to - A. It would be attended to

Q. You would raise that either with the owner or if it fell within your scope of delegated duty, you'd deal with it yourself? A. That's correct.

Q. It's, as far as you are aware, it was your responsibility to make sure that any defects within the premises were attended to? A. Correct.

Q. It wasn't, as far as you were aware, it wasn't for any other person who was walking throughout the centre, to raise any of these defects with you? A. That's correct.

16 Exhibit K is a survey plan of the area in which the plaintiff fell on 4 July 2002. It was made on 28 January 2005. There have been major repairs (on one view of it) or renovations (on another view of it) since the time of the plaintiff's fall. This exhibit includes photographs of the situs of the fall since the repairs/renovations. About this work Mr Kapos said the following in cross-examination: Q. Do you know when that work was undertaken? A. That was done June 2004.

Q. And who organised to have that work done - that exterior work? A. Through the landlords we organised it.

Q. So your real estate - - A. That's correct.

Q. And the owner paid for it? A. That's correct.

Q. So the owner took it upon himself to maintain the walkways on the carpark? A. That is correct sir.

Q. What about the bitumen, the carpark surface itself? A. They will take the responsibility. Q. They took responsibility for that as well

WELSH : Q. Sir you said that the work was done, did you say June last year, June 2004? A. That's correct.

Q. There would have been - was it part of a general overhaul of the centre? A. Of that corner, that corner as shown in the area there - -

Q. Just that particular area - - A. - - the entrance of the centre.

Q. Right so just the area you can see in the photograph? A. Yes.

Q. Photographs I should say. A. Yeah. Q. There would have been a bit of planning leading up to the work being performed? A. Yes.

Q. And discussions prior to that before the work's been planned? A. Yes.

Q. How far back did the planning process go? A. We had to submit it to the council.

Q. Was it years? A. Could be two years, could be a year (?), I can't recall exactly.

Q. At least two years? A. Mm, I would say.

17 As I shall seek to make clear below, the plaintiff alleges that her fall was due to her placing her right foot in a cavity between two concrete areas of the carpark (which includes the pedestrian means of access and buffers between that access and roadways, between carparking spaces themselves and between carparking spaces and traffic islands/plantings [see Exhibit K]). The cavity (or hole or discontinuity) appears to have resulted from the way in which the carpark was formed or laid out, although it could, possibly, be due to wear and tear. There is no evidence nor any available inference that it was due to any act or omission of the Council. The lease did not require the Council to repair, remedy or rectify any pre-existing vice in the carpark's construction or any deterioration due to wear and tear. The owner had the right under the lease to effect maintenance and repairs and, on the evidence of Mr Kapos, did so. If the plaintiff establishes liability the responsible party will be the owner and not the Council.

18 The owner's cross-claim against the Council alleges that it is liable to indemnify the owner pursuant to clauses 14.1 and 14.2 of the lease. I have already cited clause 14.1 of the lease. The proviso which I emphasised negates the indemnity because if the plaintiff establishes negligence, the negligence is that of the owner. Clause 14.2(d) is also inapplicable because there is no evidence of any of the matters I emphasised when quoting that provision above.

19 The owner's cross-claim also claims contribution from the Council pursuant to Law (Miscellaneous Provisions) Act 1946, section 5. The particulars of negligence given are: " (i) Failure to properly inspect the property; (ii) Failing to inform the Cross-Claimant of any repairs or maintenance to be carried out;

(iii) The Cross-Claimant repeats and relies upon the claims made in paragraph 5 of the Statement of Claim".

20 It is clear from the evidence of Mr Kapos that he attended the Cabramatta Plaza about three times per week, during which he would, inter alia, walk around the carpark and inspect the property to see if any repairs or maintenance needed to be done. In those circumstances, and bearing in mind the relationship between the owner and the Council concerning this carpark, it is not, in my view, open to the owner to criticise or seek to make liable the Council for that which it itself did. That deals with the first two particulars of negligence. As to the third particular of negligence a restatement of the plaintiff's allegations, I have already made a finding that any such negligence was that of the owner. Accordingly, the Council is entitled to a verdict against the plaintiff and a verdict against the owner on the cross-claim.

21 On 4 July 2002, around 9am, the plaintiff was seeking to enter the Cabramatta Plaza shopping complex from the entrance from the carpark. She entered the carpark from Hughes Street, the southern boundary of the property. For approximately two years before this time the plaintiff had a part-time job in a chicken shop, described as Obo, in the shopping complex, working approximately three times each week. However, she did not normally enter the complex from the carpark, but from Railway Parade. She admitted using the Hughes Street access a few times but "seldom".

22 As she entered the carpark, on foot, from Hughes Street, there was a walkway on her right (the eastern side of the access into the carpark), adjoining a western wall of the complex. That western wall has a driveway into the loading dock. Between the walkway and the carriageway is a concrete "buffer" or island similar to those seen on city streets where there is a divided carriageway. Each of the walkway and island appears to me (from photographs - there are no measurements available) to be about one metre wide. At its northern end the island appears to me to be about 20cms higher (approximately) than the carriageway to the west, the walkway to the west and the pavement to the north. However, the island is not at the same height, at its northern end, from the other three surfaces I have described.

23 The western wall I have described, containing the entry to a loading dock, is one of the two western walls of the complex. It is the shorter western wall. The longer western wall is to the north but further east. Joining these two western walls together is a wall running east to west at the right angles to the two western walls. The main entrance to the complex from the carpark is the right angle between the longer western wall and the eastern end of the east-west wall. A pedestrian entering the carpark from Hughes Street, in order to enter the complex from the carpark, needs to make a right-hand turn at the end of the shorter western wall in an easterly direction. That, clearly, was the plaintiff's intended route.

24 The northern end of the island I have described is on the same alignment as the east-west wall. From the entrance to the complex, the pavement along the east-west wall slopes gently down towards the carriageway that leads from Hughes Street. This gentle slope allows shopping trolleys to be pushed down from the complex, onto the carriageway and carparking spaces. From joints in the concrete, it appears that each of the walkway along the shorter western wall, the island and the sloping pavement along the east-west wall were separately formed or laid. The northern end of the island has a rounded end, as does the concrete at its base, on the same level, approximately, as the sloping pavement. That sloping pavement, however, has a straight edge on its southern side. That leaves a "gap" between the concrete of the sloping pavement on its north-western edge and the concrete of the sloping pavement on the south-western edge. This is clearly shown in photographs, Exhibits F to H and is best shown in Exhibit J. The floor of this gap, cavity or hole appears to be bitumen over which the sloping pavement and/or concrete island has been said. The shape of this gap could be described as a wedge, the point of which is at its eastern end, approximately in the middle of the northern face of the island and the base of which lies on the eastern edge of the carriageway. The northern edge of this wedge is straight, the southern edge is circular. This gap offers a potential hazard to pedestrians and also to anyone trying to push a shopping trolley into the shopping complex.

25 This gap has now been removed by the works carried out in June 2004 as is clearly shown on the photographs on Exhibit K. Those works were more extensive than merely eliminating a gap. However the gap could more easily and more cheaply and more quickly have been removed with a shovelful of concrete and some basic trowelling.

26 I return now to the plaintiff's journey on 4 July 2002. She walked along the walkway from Hughes Street. After passing the loading dock entry, she found the walkway obstructed by a number of cardboard boxes. Se thought there were 7 or 8 of them between the northern end of the loading dock and the northern end of the shorter western wall. I can accept the cardboard boxes might accumulate near a loading dock. Exhibit H is a photograph of the entry to the loading dock blocked by two large industrial waste containers, the sort that could only be lifted by a heavy truck, from which rubbish has spilled onto the carriageway. Being unable to walk through the cardboard boxes, the plaintiff stepped up onto the island and continued her journey northwards. When she reached the northern end of the island, she looked to her right. She stepped off the island with her right foot which went into the gap, causing her to fall to her right, landing on her right arm/shoulder. The fall lead to her injury.

27 As to keep a lookout, the following evidence was given in chief: "WELSH: Q. Were you keeping a look-out? A. Yes.

Q. What were you looking out for? A. I wanted to see whether there are people pushing trolleys out or there were people walking out to watch me.

Q. When you got to the end of the concrete what were you meaning to do with your feet? A. I was going to step down.

Q. When you went to step down, first of all - I withdraw that - when you went to step down - what happened? A. I was going to step down, I could not see the broken hole. My leg was caught and I fell down."

28 In cross-examination, the plaintiff said that she did not know the gap (or "hole" as she described it) was there. She was pressed as to why she did not look where she was placing her right foot when she stepped off the island. She gave this evidence in answer to questions by Counsel for the owner:

"Q. Because you weren't looking where you were placing your feet you can't say where they were when you fell, can you? A. I was looking for a person or things coming. When I saw nothing was coming that's why I stepped down.

Q. What I am suggesting to you is that because you were looking for things coming, as you put it, you don't know where your feet were? A. Yeah agree I did not."

29 Later, she said that she did not see any person or shopping trolley in her immediate vicinity. In answer to questions by Counsel for the Council she said this:

"Q. Yes and then having looked to determine whether anybody's coming from your right you were in a position to take your step off the raised section by devoting, or by turning your attention to looking at where you were going to step to, isn't that right? A. But I did not look. I thought it was flat.

Q. I know you did not look but there was nothing to stop you from looking if you wanted to? A. But then I did not look.

Q. But could you just turn your attention to my question. I know you did not look but you could have looked at that point, couldn't you? A. Yes, yes. Q. And again just accepting - I accept that you didn't look but if you had have looked you would have seen the surface area of where you were placing your feet, isn't that right? A. Yes."

30 I accept that the plaintiff did not know of and had not previously seen the hazard I have described as the gap. I accept that when she reached the northern end of the island the plaintiff was very properly looking to her right, keeping a lookout for approaching pedestrians, and especially pedestrians pushing shopping trolleys, and to find the entrance to the shopping complex. It is clear from two photographs, Exhibits F and J, that shopping trolleys are left near the entrance to the complex and their presence needed to be seen in order that she avoid walking into one or more of them. There were a number of valid reasons to attract her attention to her right rather than to watch where she was placing her foot as she stepped off the island. Equally, I accept that if she had looked down, she would have seen the gap but very few of us always look where we place each of our steps.

31 It is quite foreseeable that a pedestrian might walk along the island. Indeed, no submission was put to the contrary. The pathway might be obstructed by rubbish (as in the present case) or by, for example, an abandoned trolley (a common occurrence in modern life!). A pedestrian might walk along an island to overtake another walking more slowly or to pass another leaving the carpark, perhaps pushing a trolley. The island might provide a drier route in times of rain. The island was clearly wide enough to be used as a footway.

32 The number of cases in this area of the law is legion. I was referred to:

David Jones Ltd v Bates [2001] NSWCA 233 Richmond Valley Council v Standing [2002] NSWCA 359 Hastings Council v Giese [2003] NSWCA 178 Penrith City Council v Parks [2004] NSWCA 201 Turnbull v Alm [2004] NSWCA 173 Sutherland Shire Council v Henshaw [2004] 386 Owners of S.P 63477 v Ross [2005] NSWCA 162

33 David Jones and Turnbull gave the most assistance as they concerned the liability of occupiers of commercial premises. The same liability was involved in S.P 63477 but that case was decided on the basis of there being no nexus between the alleged negligence and the plaintiff's injury. In David Jones, Davis AJA, with whom Heydon JA (as he then was) agreed, said:

"17 In the case of commercial premises, such as retail stores, and in the case of residential premises the duty is more onerous than that which applies to highway authority. Nevertheless, it remains a duty to take that care which a reasonable person would take having regard to foreseeable dangers. As Fitzgerald said in Rasic v Cruz [2000] NSWCA 66 at [42]: 'A shopkeeper owes a duty of care even to careless customers. However, a duty of care is not a general duty to protect careless people from a consequence of their own carelessness. The test of reasonable care is not whether the safety of the shop could be improved.' 18 Mahoney JA expressed the same view in Phillis v Daly (1985) 15 NSWLR 65, where his Honour said at p 74: 'There is, in my opinion, a further matter to be taken into account. A person coming upon another's premises is expected to act reasonably. And this is relevant in deciding what it was reasonable for the occupier to do.' In one classic passage in Indermaur v Dames , Willes J (at 288) said:

'And, with respect to such a visitor at least, we consider it settled law, that he, using reasonable care on his part for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger, which he knows or ought to know;…'

This passage, and the words 'using reasonable care on his part for his own safety', have been the subject of frequent examination. The words were used, I think, to indicate that the standard of the care expected of an occupier - and therefore what dangers he was expected to deal with - were affected by the law's expectation that the plaintiff would take reasonable care for his own safety. This, in my opinion, is still a matter for consideration."

"60 In Ghantos , the High Court judges made it clear that, ordinarily, a pedestrian walking on a footpath on daylight needs to look after himself or herself and has little to complain about if he or she falls because of a slight unevenness in the surface. Callinan J said at [355], a passage in which the other Justices at least implicitly concurred: 'The world is not a level playing field. It is not unreasonable to expect that people will see in broad daylight what lies ahead of them in the ordinary course as they walk along." Gleeson CJ added to his concurrence a passage from the passage of Cumming-Bruce J in Littler v Liverpool Corporation [1968] 2 All ER 343, 345:

'Uneven surfaces and differences in level between flagstones of about an inch may cause a pedestrian temporarily off balance to trip and stumble, but such characteristics have to be accepted. A highway is not to be criticised by the standards of a bowling green.'

61 There is no reason why these utterances should not apply, at least generally, to a person walking across a floor in a shop. However, there is at least the difference, as Mr Semmler QC pointed out, that the customer in a shop is, as intended by the shopkeeper, focussing on the goods rather than the floor."

35 It should be noted, however, that in the present matter I am dealing not with some irregularity in a floor or footpath but rather with a hazard at the base of a riser that a pedestrian was seeking to descend: something which could not be scanned or viewed from afar, from a number of paces away.

36 The facts of the current matter are more analogous to those in Turnbull. Mrs Turnbull owned a small shopping centre at Dubbo, comprising four shops and some paved areas. Mrs Alm, whilst shopping after dark, tripped and fell in a hole 4 inches wide, 6 inches long and 1 inch deep in an otherwise regular concrete footpath. Bryson JA, with who, Giles and Tobias JJA concurred, said at [36]:

"36 In my opinion Mrs Turnbull owed Mrs Alm a duty to take reasonable care for the safety of Mrs Alm; the care to be taken was such care as was reasonable in all circumstances of the case, which included the nature of Mrs Turnbull's control over the concrete footpath, her entitlement to control and its basis in her ownership, her interest in the presence of persons such as Mrs Alm who made use of shops and the common area, the lawful and ordinary nature of Mrs Alm's activity, the means available to Mrs Turnbull, and also to Mrs Alm, of knowing of the presence of the hole in the footpath, and the means available to Mrs Turnbull of bringing it about that the footpath was repaired and kept in good repair. The principal authoritative statements of the relevant law are found in Australian Safeway Stores Ltd v Zaluzna and in Phillis v Daly (1988) 15 NSWLR 65 at 72C-D, 75B-C. Further stages of decision are required after it has been decided that a risk of damage is reasonably foreseeable and that means of preventing the risk are available; it is always necessary to apply the process commonly referred to as Short Calculus ( Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48) and to come to a view on the standard or scope of duty, that is to say, on the response to the risk of a reasonable person in a position of control."

"42 In Waverly Municipal Council v Swain [2003] NSWCA 61 at [114] Spigelman CJ noted decisions from which it is possible to identify a change in the law in the direction of greater weight's being given to the proposition that people will take reasonable care for their own safety. This is a proposition for consideration, with other considerations, which present themselves when addressing the succession of questions which a negligence case rises, including the question of reasonable response to foresight of risk: it is not a rule of law and does not impose a clear or "bright line" limit to responsibility. Allowance must be made for inadvertence: Brodie v Singleton Shire Council ; Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512; and a shopkeeper owes a duty of care even to careless customers: see David Jones Ltd v Bates [2001] NSWCA 233 at [17] to [19] (Davies AJA) and authorities there cited.

43 In the Shirt Calculus the consideration that a duty is owed to a person who takes ordinary care for their own safety is only one of the elements in the calculus; the nature and the difficulty of the measures which would overcome the risk, and the likelihood that the risk will come to realisation at some time in the course of use of the footpath by the public are also elements in the calculus; all have to be taken together. The decisions to whether Spigelman CJ referred include decisions relating to the liability of highway authorities and also to the liability of occupiers: these are different areas of the law of negligence, with different histories and different considerations affecting foreseeability of risk and also reasonable response to foresight of risk. To my mind there is no easy transition between decisions and judicial experience relating to highway authorities, with their context of public duty, public resources and legal right to use the road, and decisions and experience relating to occupier's liability, in particular for commercial and retail premises where entrants are present with the permission and, however indirectly, in the interests of an occupier who is entitled to control and (as a matter of right) to forbid their presence but allows their presence in a context which includes that their access and presence suit occupier's interests. While an adjudication on what is reasonably required should take place in each case on the facts and circumstances of each case, and the development of standard responses and patterns of interpretation for recurring situations of fact should be received with caution, what should be regarded as reasonable care for their own safety and as acceptable inadvertence on the part of entrants to retail premises, even on the periphery as in this case, is likely overall to be less exacting of them than what is regarded as reasonable care for their own safety on the part of persons exercising their legal rights to use roads over which public authorities have powers of maintenance and repair imposed by public law. The relationships are completely different, and the calls for self-regarding vigilance are different.

44 In Mrs Alm's circumstances I am of he view that her not observing the hole should not be regarded as a failure to take ordinary care, or a failure to take reasonable care for her safety. It is not a correct view to ask, with the knowledge of hindsight, whether she would have observed the hole in the footpath of she had specifically looked for it in the footpath; there was nothing in the circumstances to direct her attention to such a possibility, and there were other claims on her attention which she had to yield to if she were to avoid colliding with other persons.

45 Counsel for Mrs Turnbull sought to rely on contributory negligence alleged against Mrs Alm. Although this defence was raised in the pleadings and at the trial, it was not referred to in express terms in the trial judge's judgment. While considering what were the duties and responsibilities of Mrs Turnbull and the City Council in relation to the footpath his Honour said: "The evidence was that to Mr Treloar the hole in the footpath was obvious, he had clearly seen it and had complained about it. But that does not mean that a casual member of the public who ventures onto the area when other pedestrians are walking along would see it clearly; Mr Treloar was working adjacent to it so had good reason to note to whereas it is unreasonable to expect a non regular member of the public to be so observant or to be aware of the hazardous nature of the hole when meeting up with other persons in the area." Although these findings were made in a different context, they are inconsistent with the contention that Mrs Alm was guilty of contributory negligence; this inconsistency may well explain the absence of any explicit reference to contributory negligence later in the judgment. In my view the finding relating to what was to be reasonably expected of a person in Mrs Alm's position is well based on the evidence and is correct, and should not be disturbed. In deciding whether Mrs Alm was guilty of contributory negligence, regard has to be paid to the whole of the claims on her attention, the presence of other pedestrians and her need to negotiate her way in the presence of other pedestrians, as well as to the state of lighting and otherwise highly regular state of the footpath on which she was walking. In my opinion the Court of Appeal should not find that there was contributory negligence on the part of Mrs Alm."

38 In Sutherland Shire Council Bryson JA, with whom Sheller and Hodgson JJA concurred said at [67]:

"67 A rule of law which meant, or had the effect that if a hazard on a road is so obvious that a pedestrian can observe it, the high way authority is not obliged to do something about it on the calculation that pedestrians will take reasonable care for their own safety has an air of parody; that the hazard was so bad that nothing needed to be done about it. Only in a Savoyard parody should a highway authority maintain that its own negligence was so egregious that everyone should have observed the hazard which it produced, and that as a result the highway authority had no responsibility to the users of the road. Such a rule would create an incentive for a highway authority not to take remedial action to deal with a known danger in the footpath, a consequence of the previous law on misfeasance and non-feasance to which the leading judgment in Brodie referred at 572 [135] as showing that the previous law was unsatisfactory."

"88 The concept of an obvious risk is very elusive. What is obvious depends first on what the risk physically is. What is obvious also depends greatly on physical conditions: night, day, fog, driving rain; and on what the pedestrian is doing, which may or may not be reasonable, or sensible: walking, running for a bus, chasing a toddler, jogging, running from the police, carrying an armload of goods, dodging a bicycle, responding to a noise which could indicate a danger, marching in step in a procession: and on characteristics of the pedestrian: infant, aged, sober, drunk, blind, lame. The pedestrian might be blind outside a Blind Institution where obviously there are many blind pedestrians, and might be drunk outside a hotel. What is foreseeable about a hypothetical able-bodied fully-sighted sober pedestrian at a walking pace in daylight serene weather is inadequate as a test of the duty of care of a highway authority, whose consideration must be generalised and abstract: its inadequacy is obvious, and interpretation of judicial opinion which seems to make such foresight a test of duty must be mistaken interpretation.

89 What I understand to be established by the preponderance of opinion in the Court of Appeal, and by adherence to principle so far as principle can be seen, is that courts should approach the disposition of cases like the present case on the view that the question whether a pedestrian who was making reasonable use of a road, such as by walking on a footpath, took reasonable care for his or her own safety does not determine the existence of a duty of care, but is relevant to the standard of care or scope of duty and to whether there was breach of duty by the highway authority. In relation to those questions inadvertence and momentary inattention of a pedestrian are within the range of risks foresight of which may move a highway authority to take such a action as regularly inspecting footpaths and carrying out repairs, subject to the considerations of reasonableness. To my reading only a single sentence of the majority judgment in Brodie supports the other view, while passages at [150] to [152], [158] to [160], [169] and the general tenor of the reasons do not. Due regard must be paid to the formulation in para [150] in terms of which show that it is a considered statement of the position overall. The second sentence of para [150] states the duty in terms which do not make the conduct of the road user a condition of the existence of the duty: to my reading, what a pedestrian might do is brought under consideration when deciding what are reasonable steps to address the risk. Paragraph [160] is part of the exposition commencing at para [150] and is not departure from it."

40 I have set these dicta out at some length because they go not only to the primary liability but also to the allegation of contributory negligence.

41 In my view the plaintiff is entitled to succeed against the owner, without any finding of contributory negligence. Shortly stated my reasons are: (1) The owner was the registered proprietor of the land on which the carpark stood, and, despite the form of the lease granted to the Council, maintained effective control and management of the carpark, as witnessed by regular inspections of Mr Kapos and work carried out in June 2004; (2) It was in the commercial interests of the owner to maintain a free carpark with limited-duration parking to entice customers to the shopping complex; (3) The plaintiff was lawfully in the carpark in order to go shopping in Woolworths, the owner's major tenant; (4) The owner therefore had a duty to take reasonable care for the safety of the plaintiff; (5) The hazard caused by the gap was reasonably foreseeable and it was reasonably foreseeable that a pedestrian might be injured whilst seeking to traverse it; (6) The gap offered a hazard to many types of people in many types of circumstances: to the young and the old, to the healthy and to the disabled, the weak and the feeble, by day and by night, in good whether and in the bad, in good light and in bad light, to those sheltering behind umbrellas in driving rain and to those whose vision was impaired by glaring light, to those in a hurry and to those ambling whilst gossiping; (7) The existence of the gap ought to have been known to the owner from the regular inspections of Mr Kapos, it had clearly been there for some time (many years) before the plaintiff's fall; (8) The gap could easily, swiftly and cheaply removed by filling; (9) As to contributory negligence: there were a number of claims to the plaintiff's attention as she sought to turn the corner where the island ended; it was more prudent, in my view to keep watch for approaching pedestrians and trolleys than to look for an irregularity in the paving beneath the edge of the island of which irregularity she had no notice and which could not be seen except when she was at the edge of the island.

42 The plaintiff was born in Vietnam on 25 September 1962. She was 39 years old at the time of her injury and is now 43 years old. Just over three and a half years have elapsed since that time. She graduated from high school in her native land in 1977 but did not enter the workforce before coming to Australia in 1979.

43 In 1980, she commenced full-time work in a factory manufacturing leather goods. She left the workforce prior to the birth of her first chid in 1986. She had another child in 1992. She later re-entered the workforce doing part-time work in approximately 1999. That was in a chicken shop known as Obo within Cabramatta Plaza. She was earning about $200 per week but that, as her Counsel freely admitted, was in the "cash economy", i.e. these payments were not being reported to relevant authorities and no taxation payments were being deducted from them. She was working 9 hours per day, 3 days per week.

44 After her fall the plaintiff attended the surgery of Dr Frank Keh in Hughes Street. He diagnosed a fracture of the right humerus and told the patient to report to the local hospital. She presented to Fairfield Hospital at 10:15am and was assessed 5 minutes later. The preliminary diagnosis was a fracture to the shaft of the right humerus, an oblique, hairline fracture going to the humeral head. The orthopaedic registrar discussed the plaintiff's condition on the telephone with Dr Chandra Dave, an orthopaedic surgeon. A slab and sling were applied to the right upper arm. The plaintiff was discharged from the hospital at 5:05pm, with a referral letter to Dr Dave and medication.

45 On 10 July 2002, she first saw Dr Dave. He described the fracture as comminuted. He recommended a new type of splint and that X rays be taken on a weekly basis. He saw her again on 29 July, 21 August and 2 October 2002. By that time Dr Dave thought that the X rays showed satisfactory callous formation (indicating healing of the fracture) and noted that the plaintiff had 90 per cent range movement of her right arm. He recommended that the plaintiff continue to undergo physiotherapy at the Fairfield Hospital. Dr Dave has not seen the plaintiff since, according to his report of 10 January 2003. He offered a good prognosis and thought the plaintiff should regain most of the function of her right arm but that she might have some stiffness of the shoulder as a sequela of this accident.

46 In the meantime, the plaintiff had sought the care of her usual general practitioner, Dr Ben Lau. The plaintiff consulted him for the second time, concerning her right arm, on 23 October 2002. By that time the splint and sling had been removed. The plaintiff complained of pain in her right shoulder which interfered with her sleep. Elevation of her right arm was restricted in the last 20º by pain. He recommended the plaintiff to continue physiotherapy. The plaintiff again consulted Dr Lau on 18 December 2002, 29 July and 28 October 2003 and 27 January 2004. Essentially, Dr Lau's opinion is that the fracture healed but the plaintiff has been left with residual pain which hinders full elevation of the shoulder and forceful use of the right arm. He thought the plaintiff could "cope with her [usual] activities".

47 The remaining opinions before me are from two qualified witnesses, Dr Peter Conrad, a general surgeon, and Dr J.M. Ellis, an orthopaedic surgeon. The defendants have qualified Dr James Vote, an orthopaedic surgeon, and Dr Brian Porter, a general surgeon, but their reports were not tendered nor were they called. Accordingly, there is little dispute about the plaintiff's condition. Each of Dr Conrad and Dr Ellis has examined the plaintiff on two occasions, each at the end of 2003 and each at the end of 2004. The most recent examination is that of Dr Ellis on 15 December 2004. At the examination, Dr Ellis noted the following movements: (a) Flexion: 150 º

48 As I understand it, this displays a restriction of movement both in flexion and abduction, and perhaps in internal rotation. Dr Ellis diagnoses traumatic capsulitis and disuse changes in the right shoulder joint. Dr Ellis accepts that the plaintiff is likely to have some permanent limitation of movement of her right shoulder, even accepting some possible future improvement. Essentially, the plaintiff's complaints to me show little improvement beyond December 2004 and I accept Dr Ellis' assessment that the plaintiff will have some permanent, albeit small, restriction of movement of her right shoulder joint. On the question of fitness for work, Dr Ellis said this:

"She is unable to use her dominant right hand above shoulder height and the right arm is weaker than it was prior to the accident. She is short, slightly built, speaks little English and she is unfit for work requiring strenuous use of the right arm."

49 I accept the opinion as well, which is consistent with what the plaintiff told me, and with her presentation to me.

50 The plaintiff has not returned to any work. She will not look for any full-time work until her children have finished high school. In cross-examination she conceded that she could have returned to work in the chicken shop i.e. December 2003, had she been called up. I accept that the plaintiff was unable to return to her part-time employment between 4 July 2002 and December 2003. Since that time she could do her former part-time work if it be available to her. I also accept that when she seeks to return to the workforce full-time in 2010, she will be disadvantaged because of her problem with her dominant right arm. However, she would by then be 47 years old and jobs requiring the strenuous use of the right arm are not readily available for ladies of that age (and, indeed, men of that age who are not used to doing such work).

51 The plaintiff asked for an award of between 25% and 30% of the most extreme case (MEC). The owner submitted that this matter was "on the cusp of 15% of a MCE". As I earlier stated the plaintiff was aged 39 years at the time of her injury and she is now 43 years old. At the time of addresses (17 June 2005) the life expectancy (if normal) was 41.8 years, although the plaintiff has previously been found to have lipids. Nevertheless, I can accept a life expectancy of approximately 40 years. Compared to a MEC, the plaintiff's experience of pain and suffering immediately at the time of the accident and shortly thereafter was not great. However there have now been three and a half years in which the plaintiff has suffered intermittent symptoms in her dominant right arm and that is the picture for the next 40 years. Whilst the extent of the symptoms may not be great, their duration is lengthy. The symptoms interfere with her sleep, some of her domestic activities, her ability to play sport with her children and her ability to re-enter the workforce. I allow her a 20% of a MEC which results in 3.5% of the statutory maximum i.e.$14,500.

52 The plaintiff, by her counsel, made no specific claim for past economic loss nor any specific claim for future economic loss. I was merely asked to award a "cushion" or "buffer" to cover both the past and the future. There was no claim, for example, for $200 per week from 4 July 2002 to 4 December 2003 ($200 x 78 = $15,600) less income tax which ought to have been deducted. No attempt was made to show how, in economic terms, the plaintiff's return to the full-time workforce in 2010 might be affected. I was merely asked to award between $25,000 and $50,000 under this item of damages. The owner submitted that bearing in mind the terms of the Civil Liability Act 2002, section 13 a claim for future economic loss was merely "speculative". Doing the best I can, I allow a cushion of $20,000 half of which I attribute to the past and half to the future. The plaintiff's continuing problem in her dominant right arm will hinder her in re-entering the full-time workforce in 2010 making it harder for her to find a suitable job.

54 This is the only remaining head of damages claimed. The plaintiff asked for a "few thousand dollars". There are some suggestions from Dr Ellis on this topic but Counsel did not seek to justify an award based on the data provided by him. Doing the best I can, I allow $2000.

55 The above findings provide this algorithm: (i) $14,500.00 (ii) $20,000.00 (iii) $ 1,007.65 (iv) $ 2,000.00

56 Verdict and Judgment for the Plaintiff against the First Defendant for $37,507.65.

57 Verdict and Judgment for the Second Defendant against the Plaintiff.

58 Verdict and Judgment for the Cross-Defendant against the Cross-Claimant.

59 It was indicated at the conclusion of addresses that there might be arguments about costs. I shall hear counsel on costs. Without pre-empting such arguments or prejudging any evidence that might be adduced in the question of costs, I make the following observations in order to save time.

60 The plaintiff commenced proceedings on 22 October 2003 against the owner only. On 19 January 2004 the owner filed a defence in which it did not admit that it was "the occupier of the footpath and ramp leading from the street and carpark adjacent to the Plaza to the Plaza itself". At the pre-trial conference on 28 January 2004, the owner obtained leave to file and serve any cross-claim by 20 February 2004. That was filed on 3 February 2004, and is the one with which I have dealt. It alleges that the Council was the occupier of the site of the plaintiff's fall. By an amended statement of claim filed 28 May 2004, the plaintiff joined the Council as the second defendant. It seems that the plaintiff is entitled to a Bullock or Sanderson order. Subject to further evidence or argument it seems to me that the following costs orders are appropriate:

61 Order the First Defendant to pay the Plaintiff's costs, including costs payable by the Plaintiff to the Second Defendant.

62 Order Plaintiff to pay the Second Defendant's costs.

63 Order Cross-Claimant to pay the Cross Defendant's costs.

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Judgment (118 paragraphs)

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Cases Cited (12)