Jennings v George Harcourt Management Pty Ltd [2018] ACTCA 50

Jennings v George Harcourt Management Pty Ltd [2018] ACTCA 50 | Case summary | Zoe

At about 7:15 PM on Friday, 15 May 2009, the appellant parked her car in the outdoor gravel car park at the George Harcourt Inn (the Inn) and walked towards the Inn, where she intended to attend a function. Lying horizontally across the car park was a low line of railway sleepers designed to organise the areas where cars were to park. The appellant decided to walk across the line of sleepers, towards steps that led to the Inn. Near a small gap between two sleepers, the appellant tripped and fractured her ankle. She was not affected by alcohol.
The appellant litigated proceedings against the respondents, the occupier and owner of the car park (the second and third defendants in the trial proceedings), claiming that the car park had been inadequately inspected and maintained and/or inadequately illuminated. However, she presented no evidence against the third defendant. She discontinued proceedings against the first defendant.
McWilliam AsJ (the primary judge) found that the accident had occurred when the appellant had stepped over a sleeper (which she had seen) and into a shallow pothole or depression the size of a dinner plate (which she had not seen before she stepped into it).
The primary judge gave judgment for the respondents in Jennings v George Harcourt Management Pty Ltd [2018] ACTSC 33. Her Honour summarised her conclusions as follows:
For reasons set out below, even if it were accepted that there was a pothole in the vague terms described by the plaintiff, the evidence was not sufficient to establish that the second defendant failed to discharge its duty of care to the plaintiff, either by failing to maintain the car park so that the hole was discovered and repaired, by failing to warn patrons, or by failing to provide better lighting in the car park so that the hole could be seen. 12. Further still, assuming there was a hole and that the occupier failed to maintain the ground to an acceptable level or provide better lighting, there is insufficient evidence to establish that reasonably improved maintenance would have identified the hole alleged, or that lighting to a reasonable standard (assuming such a standard was identified in the evidence) would have alerted the plaintiff to the state of the ground at the very particular spot where she chose to step. 13. It follows that even if the plaintiff had established breach of the duty of care owed, there was insufficient evidence to enable a finding that any such breach caused the fall.
The primary judge determined that, had the appellant succeeded on liability, the appropriate award of damages would have been $211,580.70. No issue was taken with the assessment.

43 Precautions against risk—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 deciding whether a reasonable person would have taken precautions against a risk of harm, the court must consider the following (among other relevant things): (a) the probability that the harm would happen if precautions 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 creating the risk of harm. 44 Precautions against risk—other principles In a proceeding in relation to liability for negligence— … (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which it was done; and … 45 General principles (1) A decision that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the happening of the harm (‘factual causation’); … 46 Burden of proof In deciding liability for negligence, the plaintiff always bears the burden of proving, on the balance of probabilities, any fact relevant to the issue of causation. … 168 Liability of occupiers (1) An occupier of premises owes a duty to take all care that is reasonable in the circumstances to ensure that anyone on the premises does not suffer injury or damage because of— (a) the state of the premises; or (b) things done or omitted to be done about the state of the premises. (2) Without limiting subsection (1), in deciding whether the duty of care has been discharged consideration must be given to the following: (a) the gravity and likelihood of the probable injury; (b) the circumstances of the entry onto the premises; (c) the nature of the premises; (d) the knowledge the occupier has or should have about the likelihood of people or property being on the premises; (e) the age of the person entering the premises; (f) the ability of the person entering the premises to appreciate the danger; (g) the burden on the occupier of removing the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person. …

As to maintenance, at [60]–[62], the primary judge found:
The system of maintenance was casual…. It appears tasks such as filling holes in the car park were undertaken on an ad hoc basis, once the number of irregularities was sufficient to warrant the cost of the contractor coming out to fill, compact and grade the surface. … … 62. The system of maintenance in the car park was thus insufficient to identify the particular hazard. However, that finding ought to be distinguished from the legal question of whether the system that was in place fell short of the standard required to discharge the second defendant’s duty of care. (Emphasis added)
At [69]–[72], the primary judge said: 69. On the [authority of Phillis v Daly (1988) 15 NSWLR 65 (Phillis v Daly)], a sleeper in the day time lying in a dirt or gravel car park was an obvious, ordinary risk. The small shallow hole next to a sleeper may also have formed part of the obvious, ordinary risk in a dirt car park. 70. As discussed below, an obvious risk may change under the cover of darkness. … 71. The danger here was neither the sleeper nor the pothole by itself, but the combination of the pothole behind the sleeper. Further, it was that combination faced by a person approaching it in the dark. 72. The risk for the occupier to guard against may thus be identified as the risk that a person might injure herself by stepping over a sleeper into a small hole, because she could not see it in the dark.
At [89], her Honour found:
Here, the prospect of a 63 year old woman coming to grief in stepping over a sleeper into a hole in a dark car park, even taking reasonable care for her own safety, was both reasonably foreseeable and the harm was plainly not insignificant …
The appellant submitted that important errors occurred at [98]–[101] of the primary judge’s decision.
In relation to maintenance, at [97]–[103], her Honour said:
The vague description of the hole causes difficulties for this assessment. Although the plaintiff has the benefit here of my acceptance of her evidence that there was a small shallow hole the size and shape of a dinner plate, that description is still difficult in terms of proof that there should have been a better system of maintenance to not only identify the hole, but repair it. 98. While I am prepared to find that better maintenance of the car park was required to assist patrons to the Inn at night (particularly given that was the peak trading time for the Inn), I am unable to be satisfied on the evidence that in the circumstances of this case, an occupier acting reasonably would have taken the precaution of identifying and repairing every small hole, of shallow depth, on the surface of a dirt car park (see s 43(1)(c) of the Act). …. 100. Was the existence of the hole something the occupier, acting reasonably, ought to have known about? The evidence did not establish that it was. There was cross-examination of the defendant’s witnesses as to the frequency with which the car park was maintained, and the system of inspection and repair emerged as casual and ad hoc. However, the evidence did not establish that the occupier ought to have conducted more frequent examinations of the car park generally, and in particular of the area on either side of the sleepers for small shallow holes. 101. In the absence of any evidence as to what a reasonable occupier would have done, my own evaluative judgment is that such a person, inspecting regularly and thoroughly enough to discover irregularities in the car park surface and taking all reasonable care to maintain the surface of the car park, would not have considered it necessary to fill every small shallow hole behind a sleeper in order to guard against the risk of injury arising from a misjudged step. 102. This was an uncovered dirt car park attached to an Inn, with all the rustic charm that accompanies that setting and the appeal that attracts patrons to such an establishment on an autumnal Friday night in Canberra. The car park surface was inherently imperfect. … 103. In any event, it was not submitted that either the car park should have been paved or that ‘all reasonable steps’ included removing the sleepers so as to make any holes that had developed around the sleepers more easily visible. The submission was that the hole should have been discovered and repaired. …
In summary, the primary judge’s findings about maintenance were that:

In Waverley Council v Ferreira [2005] NSWCA 418 (Ferreira) at [47], Ipp JA counselled against conflating a finding of foreseeability of risk with a conclusion that a reasonable person would have taken precautions against the risk.
The mere fact that an accident is foreseeable does not mandate a conclusion of negligence; it is also necessary to inquire whether the defendant has failed to respond to the risk by taking the precautions that a reasonable person would have taken. These distinct inquiries are set out in s 43(1)(a) and (c) of the Act. The need to make separate inquiries is emphasised by s 44(b), which provides that the mere fact that a risk of harm could have been avoided by doing something in a different way does not, of itself, give rise to or affect liability for the way in which it was done.
The primary judge was alive to the need to make separate inquiries under s 43(1)(a) and (c) and to make the further “not insignificant risk” inquiry under s 43(1)(b). The need for separate inquiries was expressly acknowledged at [62] of her Honour’s decision (see [22] of these reasons) and at [91]–[92], where her Honour referred to Brozinic v ISS Facility Services Australia Ltd [2014] ACTSC 8 at [58] and Tame v New South Wales [2002] HCA 35; 211 CLR 317 at [99], noting at [92] that:
… In some circumstances, faced with a reasonably foreseeable risk of harm, it may nevertheless be reasonable for an occupier to do nothing.
The structure of the primary judge’s reasons emphasises that her Honour separately considered the questions of foreseeability and reasonable response.
Under the heading “the risk was foreseeable and not insignificant”, at [80]–[89], her Honour first considered the issues under s 43(1)(a) (whether the risk of harm was foreseeable) and s 43(1)(b) (whether the risk of harm was not insignificant) and was satisfied that the risk of harm was both foreseeable and not insignificant.
Under the heading “what the second defendant should have done in response to the risk”, at [90]–[112], her Honour considered the s 43(1)(c) reasonable response issue and concluded that the appellant had not established that there should have been a maintenance system that enabled better identification of the hole and required that the hole be repaired: at [97] and [101].
Indeed, the primary judge’s findings themselves demonstrate that the questions were dealt with separately. On the issues of foreseeability and significance of risk of harm, her Honour found in favour of the appellant. On the issue of reasonableness of response, her Honour found against the appellant.
This asserted error is not made out.

It is well-established that “accident prevention is one of the responsibilities of those who, for reward, direct or indirect, invite or permit members of the public to attend their premises”: Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241 (Brady) at 254.
But that is not to say that whenever an economic entrant is injured in a foreseeable way one must infer that the occupier was negligent in failing to prevent the accident.
Yet the appellant made that submission. The appellant reasoned that, as the accident was foreseeable and could have been prevented by repairing all defects in the car park or fully illuminating all areas of the car park, the occupier must have been negligent; as the accident was the materialisation of a foreseeable and not insignificant risk, negligence must be inferred. In effect, the appellant submitted that the primary judge had failed to conflate the concepts of foreseeability of risk of harm and reasonable response to the risk.
As discussed above, the issues of foreseeability and reasonable response should not be conflated. The primary judge did not fall into that error; the issues were considered separately.
In Neindorf v Junkovic [2005] HCA 75; 80 ALJR 341 (Neindorf), an entrant had tripped on an uneven surface in the driveway of the appellant's home while attending a garage sale. The High Court found that there had been no breach of the occupier’s duty of care. At [97], Hayne J said:
It is only when the particular event of the respondent's stumble is known to have happened that it appears reasonable to take steps to reduce or eliminate the danger presented by unevenness in the driveway surface. Only with that knowledge does it appear reasonable to point out or cover that irregularity. But that is to look at the problem with hindsight. That is not the question the statute … presents. That question is what would have been the reasonable response of the occupier before the accident happened.
The appellant’s approach invoked hindsight reasoning. The proper approach was to reason prospectively. Not knowing that an accident was to occur at a particular location in a particular way, a reasonable occupier would have considered what precautions should be taken in relation to the car park generally, acknowledging that different precautions may be needed in different parts of the car park.
The appellant submitted that Mr Miller, the licensee, had given evidence of a system of inspection of the car park that would have been appropriate.
That submission was incorrect. Mr Miller gave evidence of the system existing at the time of the accident, which the primary judge found to be ad hoc and generally inadequate.
The appellant relied upon a passage in Brady at 255 where, addressing circumstances where reasonable care would require “a system of almost constant inspection and cleaning up of spillages”, McHugh JA said:

The primary judge was cognisant of the need to consider each relevant matter in ss 43(2) and 168(2) of the Act, including the commercial nature of the premises (as required by s 168(2)(c) of the Act).
At [83]–[89], her Honour considered the factors in ss 43(2)(a) and (b), and 168 (2)(a) of the Act: the probability that harm would happen if precautions were not taken; the likely seriousness of the harm; and the gravity and likelihood of the probable injury, respectively. At [87], her Honour observed that “People can be injured badly in falls on hard surfaces” and at [89] her Honour observed that “the harm was plainly not insignificant”.
In relation to inspection and repair, at [96], her Honour noted that s 168(2)(g) of the Act required an assessment of the burden on an occupier of removing a danger or protecting the entrant (which is similar to the issue raised in s 43(2)(c)). At [97], her Honour noted the difficulty of making that assessment in the present case, given the vague description of the pothole. In relation to improved lighting, at [107]–[109] her Honour observed that, without knowing what lighting precaution was propounded, one could not determine the burden of remedying the deficiency.
At [102], the primary judge considered the social utility of the activity creating the risk of harm (the matter under s 43(2)(d) of the Act), referring to the aesthetic and rustic charm of a country inn, while noting that such matters “cannot be taken too far in the calculus of negligence”.
As to the weight to be attached to the commercial nature of the premises, the appellant relied on Brady and other authorities that discuss the need for regular, proactive inspections of shopping malls and other premises to which members of the public are invited for commercial purposes. It is well-established that a higher standard of care may apply to those with an economic interest in the presence of an entrant: Neindorf at [63] (Kirby J).
The primary judge did consider the particular commercial nature of the premises, noting that the car park was for commercial use (at [81]), that Friday and Saturday nights were the busiest nights (at [82]), that night-time was the peak trading time (at [98]) and contrasting the rustic nature of the impugned commercial premise to that of an urban supermarket (at [102]).
In her submission, the appellant neither elaborated upon the concept of “inadequate weight” nor explained how a greater emphasis on the commercial nature of the premises would have altered her Honour’s evaluation of the adequacy of the system of inspection and repair.
These asserted errors are not made out.

At [55]–[59], the primary judge said:
The lighting in the place where the plaintiff stepped was undeniably poor. First, at 7.15pm in May in Canberra, it was dark, although not pitch black. 56. Second, there was one light in the car park and it was nowhere near the location of the fall. No one said it threw direct or indirect light on the relevant part of the car park. 57. Third, there was a light at the Inn which cast light back into the car park, but again, the evidence was that the light did not directly illuminate the spot where the plaintiff fell. 58. Fourth, the plaintiff was navigating her way between large bushes on her left and a large tree on her right, between parked cars and the sleepers themselves, which all impacted on the indirect light that was thrown on the critical area, namely just behind the sleepers. 59. I make no finding as to whether the lighting fell below any particular standard for outdoor car parks, because such a standard was not in evidence.
At [90]–[93], the primary judge identified that a significant difficulty with the appellant’s case was her failure to identify with some precision what the reasonable occupier would have done in response to the risk in relation to both maintenance and lighting.
At [105]–[111], the primary judge turned to the question of what a reasonable occupier should have done in relation to lighting by way of response to the risk. Her Honour said:
The real question is whether, given the imperfect surface of the car park, the reasonable occupier would have ensured the car park had better lighting. As stated above, the evidence on this issue was insufficient to establish the standard by which a reasonable occupier was to be judged. That in turn prevented an assessment of the burden of meeting that standard. 106. This is not a case where there was no light at all so that no one could see the ground. All witnesses said they could see the sleepers. Some witnesses said they could see the ground and one witness said she could see the potholes on the ground. In that way, the facts of this case are different from those in Upper Lachlan. 107. If it be accepted that the lighting was poor and that it should have been improved, what was required? How bright is reasonable in the circumstances? … [T]he second defendant is entitled to know what level is being suggested is reasonable. 108. These questions are left drifting on the evidence …. There was no expert evidence led on lighting levels. There was not even an Australian standard put into evidence or evidence of other lighting levels in dirt car parks in the ACT. The Court cannot speculate on such matters. 109. … [I]f an allegation of inadequate lighting is made, in this particular case information of the type described would have been necessary to give content to that allegation, because part of the balancing equation on reasonableness is the cost of the improved lighting. 110. In the circumstances of this case, to achieve a particular level of lighting that would reach the location where the plaintiff fell, it may have been necessary not just to buy more powerful light globes or redirect an existing spotlight, but to install lamp posts in different areas in the car park. The feasibility of that being done is not limited to cost. There are environmental and planning factors that may be relevant. That is why the Court cannot speculate as to what would have been the reasonable precaution here. 111. Without such information or evidence, the Court is unable to make a finding on what level of lighting would have constituted “all care that was reasonable in the circumstances.”
It is accepted that in some cases it will be unnecessary to call expert evidence concerning proper lighting standards. However, in any case, there must be some evidence from which an appropriate lighting standard can be deduced with some particularity.
In this case, there was some lighting but no expert evidence concerning what would have been a reasonable standard of lighting. The task of the primary judge was to decide whether, on the balance of probabilities, the appellant had established a failure to install reasonable lighting. The evidence was simply inadequate for the primary judge to conclude that a reasonable occupier would have installed better lighting. Among other difficulties, in the absence of a reasonably particular lighting proposal for the car park generally, the primary judge was unable to assess the affordability of improved lighting.
The asserted error is not made out. Ground 4: Causation

The failure to refer to material evidence may show that a judge has erroneously overlooked or discarded material evidence; this is another way of saying that a trial judge must engage with the cases presented by each party: Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [116].
However, it cannot be inferred that evidence has been overlooked just because a judge has failed to make particular reference to it; it may be apparent from a decision that the judge has concluded that they did not need to discuss the particular evidence: Gregory v Qantas Airways Limited [2016] FCAFC 7; 241 FCR 72 at [38].
While not specifically addressing the statement made on 29 May 2009, the primary judge did engage with the evidence of Ms Knight and Mr Miller that, immediately after the accident, the appellant stated that she had tripped (or “must have” tripped) on a sleeper, but on 14 June 2009 she gave a different account. At [44], her Honour concluded that the appellant’s first reaction was to think that she must have “tripped over” a sleeper. However, on 21 May 2009 when she completed the workers compensation form, the appellant stated that she had “stepped over” (rather than “tripped on”) a sleeper. On 14 June 2009, the appellant gave a comprehensive account of the accident that was consistent with the version given in evidence.
The document of 7 November 2009 was completed well after the accident and, for that reason, was probably thought to have less evidentiary significance than more contemporaneous statements.
The primary judge engaged with the conflicting accounts that were most contemporaneous with the accident (and therefore of most evidentiary significance) and dealt with them.
The primary judge gave adequate reasons for her decision on the central factual matter: how the accident occurred. Although the conflicting earlier accounts cast a shadow over the reliability of the appellant’s later account of how the accident had occurred, the primary judge was entitled to assess the appellant as a reliable witness and prefer the account of the accident that the appellant gave in evidence (and in her statement of 14 June 2009) to the earlier accounts.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

Parties

Legislation Cited (2)

Cases Cited (3)