Penrith Rugby League Club Ltd trading as Cardiff Panthers v Elliot - [2009] NSWCA 247 - NSWCA 2009 case summary — Zoe

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Penrith Rugby League Club Ltd trading as Cardiff Panthers v Elliot

[2009] NSWCA 247

Court of Appeal (NSW)|2009-07-31|Before: Ipp JA, Basten JA

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Source facts

Court

Court of Appeal (NSW)

Decision date

2009-07-31

Before

Ipp JA, Basten JA

Source

Original judgment source is linked above.

Judgment (26 paragraphs)

[1]

BACKGROUND 5 The appellant occupies premises in Cardiff on which it conducts a licensed club. The premises include a car parking area. 6 On 4 September 2004, the appellant attended the club with her son and daughter. They had lunch there and stayed until about 6.30pm. The appellant did not drink alcohol. She left the club with her son about five minutes after her daughter had left. 7 The respondent and her son left the club via the rear entrance/exit which led to the car park. The surface of the car park was covered with asphalt. At the time, there were no lane markings to guide pedestrians through the car park. The primary Judge found that the surface of the car park did not contribute to the respondent's fall and there is no challenge to that finding. 8 At a point approximately 4.6m from the door through which she had left the club, the respondent said that she felt her feet move on something as if they were on a roller. She fell forwards onto her hands and knees and fractured both of her wrists. There was evidence that some twigs or sticks were on the ground at or near the point at which the respondent fell. 9 The respondent's case at the trial was that the car parking area where she fell was inadequately lit and that the appellant's system of cleaning and maintenance was inadequate to remove accumulations of the twigs or sticks that caused her to fall. The primary Judge found that if the lights had been functioning at the time the respondent fell, he would not have regarded the presence of small twigs or sticks on the surface of the car park as a significant hazard which the appellant was required to take further steps to mitigate. In this respect it was enough that the car park was cleaned daily. The respondent does not dispute this finding. 10 The primary Judge made the following findings in relation to the appellant's case based on the inadequacy of the lighting:

[2]

[13]

Appellant 14 Oddly enough, neither the primary judgment nor the written submissions of either party on the appeal referred expressly to the Civil Liability Act. Mr Watson, in his oral submissions on behalf of the appellant, contended that the primary Judge had failed to apply the correct test as to the duty owed by the appellant to the respondent. Mr Watson accepted that there was a foreseeable risk of harm to patrons of the club, in that they were at risk of injury from a fall if the lighting in the car park area was inadequate (Civil Liability Act, s 5B(1)(a)). He also accepted that the risk was not insignificant (s 5B(1)(b)). He submitted, however, that the primary Judge had applied an incorrect standard in finding that a reasonable response to the risk of harm was to ensure that the external lighting was in fact functioning by the time it was dark. 15 According to Mr Watson, the primary Judge did not identify the precautions that a reasonable person in the appellant's position would have taken to guard against the risk of harm. By simply requiring a system of ensuring that the external lights were functioning by the time darkness fell, the primary Judge applied too high a standard and did not specify the measures that a reasonable person in the appellant's position would have adopted. 16 Mr Watson submitted that there was no evidence on which the primary Judge could find that the appellant had breached its duty of care to the respondent. There was no evidence as to what caused the two external lights not to come on or to cease operating. Nor was there evidence of past failure of both lights simultaneously such as to require a system of inspection or constant monitoring, as distinct from a system that reacted to reports of failure. 17 Finally, Mr Watson pointed out that there was no finding or evidence as to whether the external lights simply had not operated at any time after sunset on 4 September 2004 or whether the lights had come on at sunset but, for some reason, subsequently ceased to illuminate the car park area. Even if the appellant was under a duty to check that the external lights had come on at sunset, there was nothing to indicate that the lights did not in fact come on at that time or that any failure of illumination had not occurred subsequently. The respondent therefore had not established on the balance of probabilities that any breach of duty by the appellant had caused her injuries (Civil Liability Act, s 5E).

[17]

The Primary Judge's Approach 22 As is pointed out by D Villa, Annotated Civil Liability Act 2002 (NSW) (2004) Law Book Co, at [1A.5B.050], s 5B of the Civil Liability Act does not itself impose an obligation on a person to exercise reasonable care to avoid harm to another person. The section sets out requirements that must be satisfied before the first person can be found to be "negligent in failing to take precautions against a risk of harm" (s 5B(1)). As Villa observes, "[s]atisfaction of the conditions is a necessary, but not a sufficient prerequisite for civil liability to arise." 23 In Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Reports ¶81-818, Ipp JA (with whom Spigelman CJ and Tobias JA agreed) held (at [11]) that the trial Judge in that case had erred when describing the Council's duty in terms of "ensuring" that a child would not fall through a skylight installed in the roof of a community centre. The content of the Council's duty was limited to taking reasonable steps to prevent persons falling through the skylight. 24 In the present case, the primary Judge proceeded on the basis that a reasonable response to the foreseeable risk of harm would have been to provide a system that ensured that the external lights that operated by an automatic system were in fact functioning by the time it was dark. Having expressed the duty in these terms, her Honour identified the appellant's breach as its failure to provide adequate lighting for the car parking area at the time the respondent was injured. Her Honour did not explain why the evidence justified a finding that a reasonable person in the position of the appellant would or, for that matter, could have established a system that ensured that the floodlights in fact functioned at nightfall each evening. Nor did her Honour explain why, in the absence of evidence as to the cause of the floodlights not operating at 6.30 pm on 4 September 2004, the system she considered to be a "reasonable response" would have ensured that the lights were on some 50 minutes after sunset.

[20]

Absence of Evidence 27 The question is then whether, on the findings of primary fact made by her Honour and on the evidence adduced at trial, it should be inferred that the appellant breached its duty of care to the respondent and that, if so, the breach caused the respondent's injury. The difficulty facing the respondent is the absence of evidence or findings on matters relevant to the resolution of these issues. The evidence did not address five important issues. 28 Firstly, there was no evidence or finding as to the reason or reasons the two external floodlights were inoperative when the respondent fell and sustained her injuries. The respondent adduced no evidence as to whether the absence of external illumination was due to a failure of the sensor, vandalism, the use of an override switch, a power failure or some other cause. 29 Mr Henry, the Team Leader of maintenance at the appellant's club, gave evidence on behalf of the appellant and was briefly cross-examined. He said (as the primary Judge found) that the floodlights came on automatically at sunset by means of the photo-electric cell installed on the roof of the club's premises. He also said that in the period he had worked full time at the club (from March 2004 to the date of hearing in November 2008), the photo-electric cell had been replaced only once, in 2008, about four years after the accident. (Mr Henry had previously worked part-time at the club as a cleaner, from around 1997 to 2004). He also said that prior to the accident, to his knowledge, both floodlights had never been inoperative at the same time. When one light was out it was because of a "blown globe" or vandalism. Mr Henry was not asked in cross-examination about the cause of the apparent double failure on 4 September 2004. 30 Secondly, apart from Mr Henry's evidence (which was not helpful to the respondent), there was no evidence as to the precise risk of failure of the floodlights against which the appellant might reasonably have been expected to take precautions. The respondent did not adduce, for example, expert evidence as to the likelihood of a malfunction in the sensor or of a power failure. Indeed, the evidence did not address, otherwise than in the most general terms, how the floodlights actually worked. For that reason, neither counsel was able to answer clearly the Court's questions as to the mechanism by which the photo-electric cell triggered the operation of the floodlights or the time, in relation to sunset, that the floodlights ordinarily became operational. 31 Thirdly, there was no evidence as to whether the floodlights had failed to come on at any time after sunset (5.38pm) on 4 September 2004, or whether one or both had come on at sunset but had ceased to function before 6.30 pm. 32 Fourthly, there was no evidence as to whether it was technically feasible to install a mechanism that would alert staff of the club to the failure of both floodlights at any given time, irrespective of the cause of the failure. Nor was there evidence as to the cost of installing such a system (assuming it to be feasible): cf Civil Liability Act s 5(2)(c). 33 Fifthly, there was no evidence as to what measures the appellant should reasonably have taken to remedy a failure of the external lighting once any such failure was discovered. Depending upon the cause of the failure, the exercise of reasonable care might have resolved the problem almost immediately after the failure was discovered. However, even the exercise of reasonable care might have involved a delay before the specific defect could be identified and rectified. On the assumption that there would inevitably be a delay in obtaining the services of an electrician or other tradesperson, there was no evidence as to what steps the appellant should reasonably have taken, if any, to warn patrons as they left the club in darkness. Indeed, the respondent's statement of claim did not allege, in the particulars of negligence, that the appellant had failed to warn her of the danger of traversing an unlit car park.

[21]

Breach of Duty 34 As I have noted, the primary judge did not identify the precautions that a reasonable person in the position of the appellant would have taken to avoid the risk of failure of the external lighting illuminating the car park. Her Honour's formulation of the appellant's duty, in terms of implementing a system to ensure that the floodlights came on by the time it was dark, perhaps suggests that she was thinking of a visual check of the floodlights at or very shortly after sunset. Mr Roberts SC, who appeared with Mr Edwards for the respondent, appeared to support this interpretation of the judgment and, in any event, submitted that this Court should find that the appellant should have instituted such a system of visual checks. He was careful however to disclaim any suggestion that the appellant was obliged to institute a system of continual observation, so long as the club remained open at night. 35 In the absence of evidence as to the nature and source of the risk that the floodlights would fail, it is difficult to discern the evidentiary basis for the suggested finding. There would be little point, for example, in a visual check at or soon after sunset if the evidence suggested that the risk of failure of the photo-electric cell mechanism was remote and that no other foreseeable risk (such as vandalism) had ever occurred during the day. In these circumstances, a visual check at sunset would not be a reasonable precaution for a person in the appellant's position to take in order to guard against the foreseeable risk of injury to patrons. The precaution would not be responsive to the nature of the foreseeable risk. 36 Subject to what is said below on causation, it is possible that the regime suggested by Mr Roberts would have detected that the floodlights were not working at some time between 5.38 pm and 6.30 pm on 4 September 2004. But that possibility does not establish that a reasonable person in the position of the appellant would have instituted a system of inspection at about sunset to guard against the foreseeable risk of injury to patrons using the car park by reason of the floodlights not working at night. The danger of extrapolating from the particular circumstances that have resulted in an injury to a plaintiff a duty on the defendant to have prevented that injury was identified by Fitzgerald JA in Rasic v Cruz [2000] NSWCA 66, at [43]: "An infinite variety of circumstances produce a foreseeable risk of injury which could often be eliminated or reduced. The current tendency to consider only individual circumstances which produce injury and the means by which those circumstances could have been changed and the injury avoided is redefining the foundation of the law of negligence by impermissibly expanding the content of the duty of care from a duty to take reasonable care to a duty to avoid any risk by all reasonably affordable means. Such an approach pays insufficient regard to the degree of the risk of injury from the particular circumstance which caused injury and to the time, effort and cost of avoiding the risk of injury from all circumstances which might have caused injury and the financial capacity of a defendant to undertake such a task. A situation immune from criticism by an imaginative forensic engineer cannot be achieved by the removal of isolated risks but necessitates the removal of all sources of risk." 37 The evidence in the present case is simply insufficient to justify a finding that a reasonable person in the position of the appellant would have instituted a system of visual inspection of the floodlights at or shortly after sunset. The burden was upon the respondent to adduce evidence supporting such a finding, but she did not do so. 38 Mr Roberts, appreciating the paucity of evidence before the primary Judge, invited the Court to find that the most likely cause of the failure of both floodlights was that someone had turned off a master or override switch. The only evidence bearing on this question was given by Mr Henry as follows: "Q. Do you remember when it was in 2004 you went full time into maintenance? A. It was approximately March 2004. Q. And when did you become a Team Leader? A. That day, when I was put on full time. Q. I see; sorry, I misunderstood you. And were the light switches for the foyer and the exterior lights in the car park all on the same switching panel, or were they a (sic) different -- A. No, they're different. Q. Where would the switches for the exterior lighting be, can you tell us? A. The switch for the foyer light or exterior lights are behind the reception area, and for the floodlights, the sensor is up on the ceiling, on the roof area in the car park. Q. And if the photoelectric cell did not work for some reason, there was no way of knowing that unless somebody came in and said, 'Hey, the lights aren't on'? A. Yes." 39 Mr Henry's evidence did not address whether any switch located behind the foyer could override the sensor. Moreover, Mr Henry appears to have distinguished between "external lighting" and the "floodlights". Read in context, his evidence appears to indicate that it was only the switch for the external lighting (other than the floodlights) that was located behind the foyer. In any event, there is no evidence to warrant an inference that the failure of the floodlights was due to someone turning off an overriding switch.

[23]

Causation 42 In view of the conclusion I have reached, it is not necessary to consider the appellant's submissions on causation. Nonetheless, in my opinion, it is appropriate to record that even if the respondent was able to establish that the appellant breached its duty of care by failing to institute a system of visual inspection of the floodlights at sunset, she did not discharge the onus she bore in relation to causation (Civil Liability Act, s 5E). 43 There are two difficulties confronting the respondent on this question. First, in the absence of evidence as to the reason for the failure of the floodlights, the evidence does not demonstrate that visual inspection in the manner proposed by the respondent would have detected the failure of both floodlights. The evidence is consistent with the floodlights having come on as usual at or shortly after sunset but, for some unknown reason, ceasing to operate before the accident occurred at 6.30pm. In these circumstances, even if the appellant had complied with the duty of care as formulated by the respondent, it has not been shown on the balance of probabilities that the appellant's injury would have been avoided. 44 The second difficulty is that, even if a visual inspection had taken place at sunset and revealed that the floodlights were not working, there is no evidence that the exercise of reasonable care by the appellant would have rectified the problem by 6.30 pm and thus prevented the injury to the respondent. As I have noted, depending upon the nature of the problem, even the exercise of reasonable care might not have enabled the appellant to rectify the problem within 50 minutes and it was not part of the respondent's case that the appellant failed to warn her of the dangers of crossing the car park in darkness. For this reason, too, it has not been shown on the balance of probabilities that compliance by the appellant with the duty of care formulated by the respondent would have prevented the respondent from sustaining her injuries.