Mitrevski v A & A Lederer Pty Ltd

Background

1. The incident in question occurred at about 6.15pm on 9 April 2010 in the carpark of the Goulburn Marketplace Shopping Centre. There was evidence that sunset on that day was at around 5.46pm and, correspondingly, that "civil twilight" occurred at about 6.10pm. Mr Mitrevski, who had been to the shopping centre before, parked his car in a parking bay and walked between the rows of parked cars towards the shopping centre. At the end of that bay, two cars up from where he had parked, was the raised concrete barrier about 110mm in height which was referred to by the primary judge as a "concrete hob". It appears that its purpose was to separate the parking bays from the vehicular thoroughfare within the carpark.
2. Mr Mitrevski's evidence was that there were some large vehicles parked in the row of cars and that he walked in between the last two vehicles in the row, was looking to his right and left for cars, and that he tripped on the hob, stubbed his toe, stumbled and landed on his left foot, injuring himself. He gave evidence that the light at that time was "dark", "poor", "very dark" and that there were shadows but that above chest height the light was "okay" (see T 9.44; T 12.16, 19; T 13.32). He noticed that some of the floodlights on the light poles in the carpark were not working (T 14.38). The following day he returned to the carpark and took some photographs of the light pole nearest to where his car was parked. On that light pole there were three lights. Mr Mitrevski said that one of the lights was not working, the middle light was pointed away from him in the opposite direction (T 27.4) and the third was pointing face down but a little bit away from him (T 28.15).
3. Lederer employed an offsite shopping centre manager, Mr Hours. It had also entered into a cleaning services contract with a company (Bensley Cleaning Services) under which a caretaker, Mr Bensley, was required on a daily basis to check the operation of all lighting in the carpark and to report and/or attend to any faults. By the time of the hearing Mr Bensley had died. However, before he died he made a statement to the effect that he had not observed any deficiency in the lighting in the period leading up to the incident.
4. Mr Hours' evidence was that he was not aware of any issues with the carpark lights on 9 April 2010 prior to the incident. When he heard that somebody had tripped he asked Mr Bensley whether he had checked the light and was it working, to which Mr Bensley replied "yes" (T 90.29). (Her Honour made reference to this evidence but also noted that Mr Bensley did not know the exact area in which Mr Mitrevski had tripped.)
5. Mr Hours also gave evidence that on specific occasions if the "big lights" were out a cherry picker would be used (to replace the lights, presumably) and that because that would involve quite a bit of money when that happened he would arrange for all the lights to be checked (T90.48).
6. Lederer adduced expert evidence from a consultant architect, Dr John Cooke, including that it was good practice to provide a physical separation between vehicle circulation aisles (and roadways) and parking bays in a carpark; that a raised concrete strip is a potential trip hazard; that the general construction of the concrete strip were in accordance with general principles for separation of car parking bays and circulation isles/roadways; that the relatively high level of reflectivity of the concrete surface of the hob in comparison with the lower level of reflectivity of the tarmac surface of the road "contributed to the ease with which the concrete strip could be seen" at the relevant time (i.e., in relation to the end of civil twilight); that the recommendations in the applicable Australian Standard for lighting in an area such as the incident site were for a minimum of 2 lux; that his measurements of levels of illuminance revealed a lux reading on the surface of the concrete strip that amounted to at least five times the recommended minimum; and that his visual appraisal was that there were no deleterious shading effects and a good visual contrast between the surface of the concrete strip and the background. Dr Cooke was not cross-examined on the opinions contained in his report, nor was any expert evidence adduced by Mr Mitrevski as to the matters the subject of that report.

Primary judgment

1. Her Honour accepted Mr Hours as a reliable and thoughtful witness. Her Honour also accepted the evidence of Dr Cooke which was not challenged in cross-examination. However, as her Honour pointed out, Dr Cooke inspected the premises some four years after the incident.
2. Her Honour considered that Dr Cooke's evidence established that there was nothing inherently unreasonable in concrete hobs being installed in the carpark and that it was good practice to do so. Her Honour nonetheless accepted that the raised concrete strip was a potential trip hazard. Her Honour noted that Dr Cooke had visited the site some four years after the incident and that it was not clear whether the lights were the same or whether the carpark had been altered. (In that regard, the respondent in these proceedings notes that Mr Hours was not cross-examined to suggest that there had been any change in the lighting or configuration of the carpark.)
3. Relevantly, however, her Honour said (at p 10) that she could not conclude "that simply because a light or lights were out that the level of illuminance was inadequate". Beyond that, her Honour did not consider that she could take Dr Cooke's expert evidence much further.
4. Her Honour then identified five important issues that she said the evidence did not address and that were relevant to the question of breach of duty and causation. Those issues correspond to the issues regarded as of importance to the resolution of similar questions in an earlier tripping case (Penrith Rugby League Club Ltd trading as Cardiff Panthers v Elliott [2009] NSWCA 247 at [27]-[33] per Sackville AJA). In summary, they were as to: the reason or reasons that the light was inoperative when Mr Mitrevski tripped; the precise risk of failure of the lights against which Lederer might reasonably have been expected to take precautions; whether the light had actually come on that evening and then gone off before the incident; whether it was technically feasible to install a mechanism that might alert centre management to the failure of a light and the measures Lederer should reasonably have taken to remedy a failure in the lighting once any failure was discovered; and the steps that should reasonably have been taken, if any, to warn people in the carpark, assuming an inevitable delay in obtaining the services of someone to remedy a failure of the lighting once such failure was discovered.
5. Significantly, her Honour said that there was no evidence of anything that would have put Lederer on notice that there was a problem with the lights and that there was no record of any other accident or incident occurring in the carpark. Her Honour concluded that Lederer was not in breach of its duty of care to Mr Mitrevski.
6. The primary Judge addressed the question of contributory negligence on the assumption that she was wrong in her finding on liability. She found that Mr Mitrevksi had contributed to his own injury because he knew the carpark, had been there before and was watching the traffic and the pedestrians (not the ground). Balancing any negligence of Lederer in terms of the reasonableness of having the barrier in place in the first instance, her Honour assessed contributory negligence at 50%.
7. Her Honour assessed the damages that would have been applicable had a finding of liability been made. It is accepted in the present proceedings that the damages as so assessed are in the order of $86,000. Having regard to the findings as to contributory negligence, those damages would be reduced to about $43,000.

Proposed grounds of appeal

1. Mr Mitrevski seeks leave to appeal on the findings as to liability and contributory negligence. In summary, as to liability he contends that the primary judge erred: 1. in finding that Lederer did not have knowledge of the carpark lights not functioning, or not being correctly positioned, before the accident and at a time when it could reasonably have remedied those matters which constituted a reasonably foreseeable risk of harm (ground 1(a)); 2. in failing to find that the caretaker would not in any event have identified that the carpark lights not functioning or not being correctly positioned was a risk of harm that reasonably required remedying to avoid a foreseeable risk of harm (ground 1(b)); 3. in failing to find that the carpark lights did not provide reasonable illumination to persons walking through the carpark in the dark (ground 1(c)); 4. in accepting Dr Cooke's evidence as establishing that there was reasonable illumination (because Dr Cooke had not considered the impact of vehicles parked in the carpark throwing shadows and his assessment was conducted many years after the incident in different lighting conditions and depended on lux measurements taken at height from the ground and not at the level of the concrete hob or when shadowed by vehicles) (ground 1(d)); 5. in concluding that Mr Mitrevski had failed to adduce evidence on five important issues when none of those was determinative of the questions arising under the Civil Liability Act 2002 (NSW) (ground 1(e)); and 6. in failing to find that, on her Honour's findings as to the need to use a cherry picker to change or re-position the lights and that those works would take time, that feature of the lighting system [i.e., delay between failure of the lighting and its remediation] meant that a reasonable response to the risk of harm implicit in the carpark lighting system constituted by the poorly illuminated low lying concrete barrier which would be further shadowed by shadows thrown from a parked car was to paint the concrete barriers with high visibility paint so as to remove that risk of harm (ground 1(f)).
2. As to the challenge to the finding of contributory negligence, it is contended that her Honour erred both in making the finding and in the assessment of the level of contributory negligence. It is contended that at the time of the accident the concrete hob was not reasonably illuminated and was in shadows thrown by parked cars and that, because it was not painted with a high visibility paint, Mr Mitrevski did not, and a reasonable person in his position would reasonably not, discern its presence.
3. The lux measurements taken by Dr Cooke, admittedly some four years after the incident, measured the lux reading not only as at the surface but as at 1m above the surface and that Dr Cooke observed no deleterious shadows. His report also made observations as to the visibility of the hob based on a comparison of the reflectivity of the surfaces. Moreover, he was not cross-examined as to what effect, if any, the presence of larger sized vehicles in the parking bays might have on the lighting of the area where the accident occurred. Nor was it suggested to Mr Hours that high visibility paint might have been used as a reasonable precaution.

Determination

1. While there are not exhaustive or rigid rules of practice governing the grant of leave to appeal (Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170) what is generally required is that the applicant demonstrate that there is a question of principle, or a matter of public importance involved, or where an injustice is demonstrated which goes beyond that which is merely arguable (see Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69; Lee v New South Wales Crime Commission [2012] NSWCA 262 at [12]).
2. The requirement for leave to appeal from a judgment where the quantum in dispute is less than $100,000 implicitly recognises the importance of keeping in mind the proportionality of the dispute. Where there is no question of principle and only a small amount in dispute, leave to appeal will usually be refused (see Jaycar Pty Ltd v Lombardo [2011] NSWCA 284; Zelden Sewell Henamast Pty Ltd [2011] NSWCA 56).
3. In the present case, unless the finding of contributory negligence is overcome the quantum in dispute in the present case is less than half the relevant monetary threshold. Even assuming no contributory negligence, the quantum in question remains below the $100,000 threshold.
4. There is no substantial issue of principle in this matter. While not referring to the applicable statutory provisions, her Honour made a finding (in Mr Mitrevski's favour) that the concrete hob was a potential risk hazard and it may be inferred that she proceeded to consider the questions of breach and causation on the basis that there was a reasonably foreseeable and not insignificant risk of harm. The complaints made as to her Honour's findings go essentially to the question of breach and causation.
5. On the evidence of Dr Cooke, which was not challenged in cross examination, her Honour was unable to conclude that the level of illumination was inadequate. Thus even accepting that the light was not functioning Mr Mitrevski did not establish that the lighting in the area where he tripped was inadequate. Further, Senior Counsel for Mr Mitrevski confirmed that there is no challenge to the finding at p 12 of her Honour's reasons that there was nothing to put Lederer on notice that there was a problem with the lights on the day the incident occurred. In those circumstances there is nothing to suggest that her Honour erred in finding that Mr Mitrevski had not shown a breach of Lederer's duty to exercise reasonable care to prevent injury to customers using the car park. There was no evidence of breach of a duty of care by Lederer.
6. In these circumstances, the Court is not satisfied that Mr Mitrevski has shown that he would be likely to succeed on an appeal if leave was granted. There is nothing to suggest that a refusal of leave would cause injustice to Mr Mitrevski.
7. For those reasons, the application for leave to appeal was dismissed with costs.

Amendments 29 September 2015 - Typographical errors to paragraphs 19 and 23 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: 29 September 2015