Stojan (No 9) Pty Ltd v Kenway

Stojan (No 9) Pty Ltd v Kenway - [2009] NSWCA 364 - NSWCA 2009 case summary — Zoe

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Adeels Palace Pty Ltd v Moubarak [2009] HCA 48 Armory v Delamirie (1722) 1 Stra 505; 93 ER 664 Australian Safeway Stores Pty Limited v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 Baxter v Obacelo Pty Ltd [2001] HCA 66; (2001) 205 CLR 635 Blacktown City Council v Hocking [2008] NSWCA 144 Blatch v Archer (1774) 1 Cowp 63 (at 65); 98 ER 969 Boyton v Nominal Defendant [1980] 2 NSWLR 509 Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council [2001] HCA 29; (2001) 206 CLR 512 Carolyn Adel Kenway v Ballina Shire Council and Stojan (No 9) Pty Ltd (District Court of New South Wales, Blanch CJDC, 27 November 2008, unreported) City of Keilor v O'Donohue [1971] HCA 77; (1971) 126 CLR 353, Clarke v Coleambally Ski Club Inc [2004] NSWCA 376 Commissioner for Railways v Halley (1978) 20 ALR 409 Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380; (2005) Aust Torts Reports 81-815 Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 Doubleday & Anor v Kelly [2005] NSWCA 151 Flower v Ebbw Vale Street, Iron and Coal Co Ltd [1936] AC 206 Fox v Percy [2003] HCA 22, (2003) 77 ALJR 989 Ghunaim v Bart [2004] NSWCA 28; (2004) Aust Torts Reports 81-731 Gordon Martin Pty Ltd v State Rail Authority of New South Wales & Anor [2009] NSWCA 287 Gorman v Wills [1906] HCA 84; (1906) 4 CLR 764 Hackshaw v Shaw [1984] HCA 84, (1984) 155 CLR 614 Ho v Powell [2001] NSWCA 168; (2001) 51 NSWLR 572 House v R [1936] HCA 40; (1936) 55 CLR 499 CASES CITED: Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 Kevan v Commissioner for Railways [1972] 2 NSWLR 710 Leichhardt Municipal Council v Montgomery [2007] HCA 6; (2007) 230 CLR 22 March v Stramare (E & M H) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 Maricic v Dalma Formwork (Australia) Pty Ltd & Anor [2006] NSWCA 174 Mobbs v Kain [2009] NSWCA 301 Multicon Engineering Pty Limited v Federal Airports Corporation (1997) 47 NSWLR 631 Permanent Trustee Co of NSW Ltd v Campbelltown Corporation [1960] HCA 62; (1960) 105 CLR 401 Phillis v Daly (1988) 15 NSWLR 65 Re application for a Writ of Certiorari against the Shire of Gingin; Ex parte Machlin (1999) 103 LGERA 21 Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330 Schubert v Lee [1946] HCA 48; (1946) 71 CLR 589 Sheahan v Jackman (1898) 4 Argus LR 47 State of New South Wales v Broune [2000] NSWCA 3 Thompson v Australian Capital Television Pty Ltd [1996] HCA 38; (1996) 186 CLR 574 Timberland Property Holdings Pty Ltd v Julie Bundy [2005] NSWCA 419 Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491 Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Rep 81-818 Western Suburbs Hospital v Currie (1987) 9 NSWLR 511 Wheat v E Lacon & Co Ltd [1966] AC 552 Wilkinson v Law Courts [2001] NSWCA 196 Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

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Statement of the case 4 The plaintiff was injured at about 6pm on the evening of 24 June 2003, when she fell on concrete stairs which led from a car park adjacent to the Alstonville Shopping Plaza (the "Plaza") to an unformed laneway across Elizabeth Ann Brown Park. The plaintiff fell while ascending the stairs from the car park to the public park, having misjudged, in the darkness, the location of the landing at the top of the first flight of the stairs. She was 58 years old at the time of the accident. The plaintiff conducted a store within the Plaza from premises she leased from Stojan. 5 Stojan was the registered owner of the Plaza. It occupied the car park from which the stairs ran. The Council had the care, control and management of Elizabeth Ann Brown Park at the top of the stairs. 6 The primary judge's findings as to the circumstances of the accident are not contested (primary judgment, at 1-3): "24 June of course is close to the shortest day of the year and at about 6 o'clock that evening she [the plaintiff] left her premises to go to her car to drive home. Apparently her husband had been there earlier and picked up some bags and taken them to the car and when she got to the car she realised that her husband had put the bags in the car and locked the car and her keys were in the bags locked in the car. Her husband had gone to a nearby hotel so it was necessary for her to go to him to obtain keys to get into the car to drive home. There were three possible routes she could have taken to go from where she was to the hotel. One of them was to walk out the driveway entrance into the car park and up the street. Another one was to go to a covered and lit walkway that was provided as an exit from the car park and a third was to go up some stairs which led to a park and then to walk cross the park to the hotel. Part of an expert's report was tendered which showed that to go via the stairway would be 198 metres. To go via the covered and lit walkway was 258 metres and to go out the entrance and up the street would have been 251 metres so that not great distances were involved but it is clear that the shortest route was the route via the stairway. The configuration of the stairway was such that there were a number of steps leading up to a landing and those stairs numbered seven. There was then a landing and the stairs then angled to the right and there were a number of stairs, about the same number, leading up to a park. The path that she was to travel across that park was not a concrete path. There appears to have been gravel at the top of the stairs and the plaintiff said that it was necessary for her to walk across grass to get to the hotel. Immediately beside the stairs were placed two charity clothing bins. The plaintiff's evidence was that there was a light coming from the car park and the plaza which provided some illumination to the first steps that she was taking as she was walking up the stairs. She had nothing in her hands and she was holding on to the handrail. She said that she went up a number of stairs until she found that there was no light at all for her to see the stairs, the light being obscured by the clothing bins. The photographs which have been tendered were photographs taken the next day and they clearly show the position of the clothing bins and they clearly demonstrate how the light would have been cut out by the clothing bins. Her further evidence was that she was aware that at the top of the stairs in the park there was another light so she was always going into a lighted area after she had negotiated the stairs. The problem that she had was that when she got to the second top step in the first flight of the stairs, she thought she had reached the landing. She let go of the handrail in order to walk across the landing. The handrail was provided on the basis that it went all the way around the landing. She chose to let go of the handrail in order, as I say, to walk across the landing but because she misjudged where the landing was, her foot caught on the edge of the landing and she fell down. She fell down on her left shoulder and suffered some significant injury. " (emphasis added) The clothing bins were Lifeline charity bins. 7 When the plaintiff was cross-examined, she gave the following account of the way she approached the stairway: "Q. Would you agree with me that had you just been a bit more cautious in placing your foot the fall would have been avoided?

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A. Because the - going into the riser here, the force of me - because I was moving forward remember. I wasn't expecting a step there. I was moving forward so I was charging. Would you call it charging because you know that you're going to hit the landing and go up again so I hit that very very hard with my foot which - I don't..(not transcribable)" 8 The plaintiff suffered an impacted fracture of her left humeral neck and head and experienced ongoing problems with her shoulder which ultimately required her to undergo a total shoulder replacement on 5 March 2007. There was no dispute at trial about the extent or nature of her injuries. The critical issues were Stojan and the Council's liability, if any, to the plaintiff, whether if either was liable she was guilty of contributory negligence, and the extent of the defendants' respective liability. 9 The plaintiff's case was that Stojan and the Council owed a duty of care towards her in their capacity as concurrent occupiers of "premises comprising concrete stairs, located at the western end of Alstonville Plaza". The Council was alleged to be an occupier of the stairs because they were said to be "located on a section of unformed road" under its care and control. Stojan was said to occupy the stairs "in its capacity of owner of a commercial shopping centre known as Alstonville Plaza, which shopping centre immediately abuts the stairs". The stairs were alleged to be for "the non-exclusive use of patrons" of the Plaza. The plaintiff alleged that while ascending the stairs at about 6pm on 24 June 2003, she became aware they were "not properly illuminated" after she had ascended approximately seven of them. She then formed the view that it was safer to continue to ascend, rather than descend, but as she did so she "tripped on the last riser before the middle landing, and caught her foot on the lip of the landing, and fell". 10 The plaintiff alleged that the Council had breached its duty of care to her in several respects, relevantly for the purposes of this appeal, in failing to provide any, or any adequate lighting within the immediate vicinity of the stairs. Although she alleged Stojan had also breached its duty of care in a number of respects, her case against Stojan of breach of duty was ultimately only pressed on the basis that it was negligent in allowing the clothing bins to be placed adjacent to the stairway in such a way as to prevent illumination of the stairs, from, relevantly, artificial lights. The plaintiff also alleged that these omissions occurred in circumstances where both the Council and Stojan had been put on notice by a letter from the New South Wales Police Service that the inadequate illumination of the stairs constituted a danger. 11 The Council admitted that it was a local government authority with powers in relation to the unformed road reserve adjacent to the western end of the Plaza, pleaded that it was a roads authority pursuant to the Roads Act 1993 (NSW), did not admit it was the occupier of the concrete stairs, denied constructing the stairs and asserted that Stojan undertook their day-to-day repair and maintenance. 12 The Council also pleaded that any risk of injury to the plaintiff was an obvious risk within the meaning of s 5F of the Civil Liability Act 2002 (NSW) and that the plaintiff voluntarily assumed any risk of injury. It pleaded that its functions were limited by the financial and other resources reasonably available to it and asserted that it was "exempt from liability pursuant to s 42" of the Civil Liability Act. It also alleged that any failure by it to take any of the steps the plaintiff alleged constituted its negligence, were excused by s 45 of the Civil Liability Act. 13 Stojan denied it was the owner or occupier of the stairs. 14 Both defendants pleaded that the plaintiff was guilty of contributory negligence particularly in failing to use the handrail provided, failing to ascend the stairs at as reasonable pace and failing to use an alternative route. 15 The Council and Stojan cross-claimed against each other seeking indemnity and/or contribution pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) (the "1946 Act").

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The Plaza and surrounds 16 The Plaza was constructed between Robertson Street and the intersection of the Bruxner Highway and Main Street, Alstonville. The car park in which the stairs were constructed was on the western side of what was described in a 1989 Plan as Stage 1 of the Plaza. The stairs were located in the north west corner of the car park. They led to a public park and public reserve known as the Elizabeth Ann Brown Park (Deposit Plan 6383) which occupied land owned by the Council to the north west of the car park. Directly to the south of Elizabeth Ann Brown Park was another area of land (DP 235088), also owned by the Council, on which a heritage building known as Crawford House was erected. It would appear that the stairs also provided access to that area of land. 17 According to a survey dated 21 February 2000, a lane described as "vehicle and pedestrian track" ran between Elizabeth Ann Brown Park and the land on which Crawford House was erected. The Plan also depicted at the eastern end of the lane "steps to Plaza". A Plan of Subdivision prepared in 1980 appears to show the same lane continuing in an easterly direction from the eastern boundary of Elizabeth Ann Brown Park and Crawford House with the Plaza car park, so as to run along the northern boundary of car park 2 of the Plaza, immediately to the south of Stages 2 and 3 of that development. 18 According to an undated Draft Concept Plan and Management Plan (which counsel informed the Court was created in June 2005) prepared on behalf of, or by, the Council in relation to Elizabeth Ann Brown Park and Crawford House the lane (described as a "road reserve") which separated the Elizabeth Ann Brown Park from Crawford House provided vehicular access to a dentist, whose premises appear to be located to the north of car park 1. The Plan observed that: "Whilst vehicular use is not frequent there are potentially unsafe conflicts with pedestrians." 19 Under the heading "Pedestrian Access and Circulation" the Plan stated: " Step access to the shopping centre is not visually obvious and is steep and potentially unsafe.

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The stairs 22 No direct evidence was adduced as to when the stairs were constructed, or by whom. The evidence disclosed that development approval to build the Plaza was granted to Stojan in 1976 by the then relevant local government authority, Tintenbar Shire Council, to whose functions the Council apparently succeeded. The conditions of approval included the "use of the unconstructed 6 metres of road reserve adjoining the development for parking", the road reserve being the area on part of which the stairs were constructed. 23 In response to a subpoena, Mr Campbell of L J Hooker Ballina, who had managed the Plaza on Stojan's behalf since its construction in 1976, stated: "The Plaza building and stairs was completed in approximately November 1976 (30 years ago). We do not hold any plans of stairs etc and the building company Alex Roberts Constructions has ceased operations I believe over 10 years ago." (emphasis added) 24 A site plan prepared by Stojan's architect for stage 3 of the development in 1989, depicted the stairs as being within "Carpark 1 (existing)". 25 On 4 May 2004, the plaintiff's solicitors asked the Council's Registered Surveyor to inspect the stairs. By letter dated 1 June 2004, the surveyor, Mr Kelly, advised that "he had inspected the site and determined the … stairs are located on a section of unformed road under the care and control of Council". 26 Mr Campbell admitted at trial that Stojan exercised relevant control over the car park, by providing a cleaning service and installing parking signs to regulate parking times in most of the car park. It also trimmed the trees and hedges on the western and northern sides of the car park. However, he said that Stojan had never treated the stairs as under its control, nor had management been involved in "anything concerning the stairs", that management did not receive any requests from anyone concerning lighting of the stairs, nor did he regard lighting of the stairs as Stojan's responsibility. He gave evidence that the cleaning service retained by Stojan was instructed to clean the car park, but not the staircase. He also noted, when asked about the frequency of use of the stairs: "A. It would be rare for any customers to use them very much, as certainly some school children used to run up that way to the school. It was like a double little flight of steps with a landing and a walk up and it wasn't, people would park down the bottom and wheel their shopping trolleys and I don't think anyone much would use that that came to our centre." 27 It was Mr Campbell who gave Lifeline permission to place the clothing bins on Stojan's premises. When asked about how long the clothing charity bins had been next to the stairway prior to June 2003, he said: "Look I guess it was a couple of years at least. I know the Lifeline people did ring us and I said that you - hey put them in the Wardell car park and I came one day and they were there on that site so. We did nothing more, they've just - there was never any arrangement, agreement to put the bins there. I just in my own mind presumed they'd seen council or something about it. They probably saw nobody, other than ring me." 28 Mr Campbell also indicated that he had directed Lifeline "to put them in our car park … but not to take up a car park anywhere". While he denied that he gave Lifeline permission to put the bins adjacent to the stairs, he acknowledged he knew the bins were there for about two years prior to the plaintiff's accident. 29 During cross examination, Mr Campbell was asked whether he considered whether the position of the bins would block the light over the stairs: "Q. Mr Campbell you didn't consider whether the position of the bins would block the light over the stairs, did you? A. I don't know why I would've, because the stairs weren't our property or anything like that, it's and they were very little used.

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The safety audit 30 The plaintiff relied on several pieces of correspondence received by the Council, which the Council had also forwarded to Stojan, that she alleged alerted the Council and Stojan to potential risks to pedestrians associated with the stairs. The first was a letter to the Council dated 3 September 1996 from a resident of Alstonville complaining of the state of the stairs, which stated: "Dear Sir, I wish to direct your attention to the state of the steps which lead from Elizabeth Brown Park to the Plaza, Alstonville. These are in a disgraceful and dangerous state. Indeed they are rarely otherwise, being covered in soil, stones and leaves, making ascent and descent difficult and dangerous. In wet weather they become extremely slippery. The whole situation is a disaster waiting to happen. Remedial measures need to be taken to rectify the situation. Meantime they could at least be cleaned regularly." 31 On 4 November 1996, the Chief Engineer of the Council replied, advising the writer that the Council believed that, "given that the steps are within the car parking area of the Alstonville Plaza, [their] maintenance … is the responsibility of the Plaza". On the same day, he sent the Centre Manager of the Plaza a copy of the letter of complaint and the Council's reply. Mr Campbell could not recall receiving that correspondence. 32 On 27 February 2002, the Police Crime Prevention Officer for the Richmond Local Area Command, Senior Constable Michael Hogan, conducted a safety audit of Elizabeth Ann Brown Park, apparently following a discussion with the Council's General Manager. In a letter to the Council dated 28 February 2002, he advised that there were "several issues that need to be addressed as a matter of urgency, as well as consideration of the redevelopment of minor areas to improve natural surveillance". Among his list of recommendations for Council action was the following: " Serious trimming of vegetation around the stairway entrance from Plaza Carpark to remove entrapment/hidden areas. Install lighting to highlight the cenotaph area, swings and stairway areas to encourage more frequent patronage of the park thus creating more natural surveillance (People seeing in and out). The light on the Western side of the park needs to be lifted in height or remove the vegetation to make it more effective as it shines into the tree.

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The Primary Judgment 36 The primary judge delivered an ex tempore judgment. He found: "The shopping plaza was built in 1976. There was a laneway owned by the Council which came down from the park past the area where the steps are where the fall was and into the car park area associated with the Alstonville Shopping Plaza. In the course of the construction of the Alstonville Shopping Plaza the stairs were constructed presumably by the people who constructed the plaza but they are constructed on property which belongs to the Council. The property belonging to the Council which is used as part of the car park has always been cleaned and attended to by the second defendant, that is, the plaza. The steps however seem to have fallen into a no man's land between the plaza and the Council." 37 He concluded (26 November 2008, at 2), that photographs tendered in the plaintiff's case, "clearly show the position of the clothing bins and…clearly demonstrate how the light would have been cut out by the clothing bins". 38 The primary judge then set out the evidence given by Mr Campbell as to the frequency of usage of the stairs and Stojan's view of the stairs as the Council's responsibility, the correspondence relating to the safety audit and Mr Campbell's evidence as to Stojan's response, or, rather, inaction on receipt: primary judgment, 26 November 2008, at 5-8. 39 After referring to Mr Campbell's evidence that he regarded the stairs "as the Council's business" his Honour found that although the stairs were not exclusively used for the purpose of accessing the Plaza, it was "a safe conclusion that the stairs significantly related to the Plaza itself." Further, he noted (primary judgment, 26 November 2008, at 8) that despite Mr Campbell's evidence that few people used the stairs as a method of entering or exiting the car park, "It is clear in my view from the evidence that at least some people did use the stairs from time to time. It is not possible on the evidence in this case to say how many people but the stairs were there obviously not simply as an ornament. They were there as an invitation for members of the public to walk up the stairs and use them as a means of going from the car park to the park above . It is true as has been pointed out by [Stojan], that there are other means perhaps preferable means of exiting the plaza but there is no getting away from the fact that the steps are there and were put there for the very purpose of inviting people to use them as a means of leaving the car park and going up to the park which then gave ready access to the shops along the street." (emphasis added) 40 The primary judge considered the first principle of law he should apply was Heydon JA's statement in Wilkinson v Law Courts [2001] NSWCA 196 (at [32]), that, "stairs are inherently but obviously dangerous. Many measures might have been taken to make the stairs as safe as human skill could possibly make them: but the duty is only to take care which is reasonable under the circumstances". Secondly, he applied the proposition that pedestrians ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards: Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council [2001] HCA 29; (2001) 206 CLR 512 (at [163]) per Gaudron, McHugh and Gummow JJ. 41 The primary judge made no explicit finding as to which party occupied the stairs. However he appeared to accept that the Council occupied them, albeit as a highway authority in the following passage: (primary judgment, 27 November 2008, at 3): "As to the stairs themselves they clearly were on the laneway which belonged to the Council and the Council has acknowledged in a letter to the plaintiff's solicitors which has been tendered that the stairs were on 'a section of unformed road under the care and control of the Council.'" 42 It is apparent from the following passage, that his Honour also found Stojan occupied the stairs (primary judgment, 27 November 2008, at 3): "On the other hand it is perfectly clear that although Mr Campbell did not regard the stairs as having anything to do with the plaza the stairs were there for the purpose of people coming and going from the plaza's car park and a means of movement between that car park and the plaza and the rest of Alstonville shopping centre." 43 On this basis his Honour concluded that both the Council and Stojan owed the plaintiff a duty of care, saying (primary judgment, 27 November 2008, at 2-3): "In my view there was a duty of care owed by both the Council and the plaza to the plaintiff in this case. She had been a long time tenant of the plaza and she was a person who might be expected to be using these stairs. It is pointed out that there are other means of moving from the shopping centre to other areas of Alstonville including other shops in the Main Street but the stairs were an open invitation to people who were coming from the plaza and going through the car park to use those stairs in order to walk up to the park and through the park to commercial premises and other premises through the park. " (emphasis added) 44 The primary judge found that the Council breached its duty of care by failing to ensure that there was adequate lighting over the stairs, having been alerted to two problems by the safety audit letter: the need to install lighting in the park and to remove the clothing bins to "allow better 'entrance/exit vision'". He noted the Council had responded to the safety audit letter by advising its author that it was "limited by funds with respect to lighting requests and a cost effective design will need to be undertaken for estimating purposes … then submitted for budget consideration purposes". However his Honour formed the view that the letter was dealing with a broader requirement than merely lighting the stairs as to which the plaintiff's evidence "indicate[d] that the cost of putting a light at the stairs was around $8,500". He found that this amount, applying the test set out by Mason J in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 (at 47-48), "was not a significant expense for the council and … something which could easily have been done". His Honour also held that the Council's action of forwarding the safety audit report to Stojan was insufficient to discharge its duty of care (primary judgment, 27 November 2008, at 4): "The council appears in those circumstances to have simply passed the responsibility on to the plaza and then not done anything further to either rectify the situation itself or to check on whether the plaza had done anything to rectify it nor had it done anything to require the plaza to do something about it which the Council could have done bearing in mind that the bins were placed on property under the control of the Council. Because of that in my view there has been a breach of the duty of care by the Council. The remedy was an easy and relatively inexpensive remedy and in my view it should have been taken particularly in light of the knowledge the Council had of the situation." 45 In relation to Stojan, the primary judge was "satisfied … that it [was] the clothing bins and [their] placement … which obstructed the light which in turn caused [the plaintiff] to become confused as to where the landing was". His Honour found that because the bins were placed in the car park at Stojan's invitation, and Mr Campbell had restricted the places where the bins could be put, Stojan breached its duty of care by failing to respond to the safety audit letter which "clearly alerted the reader … to a need to move the bins and to the difficulty with lighting in the park generally and on the stairs". His Honour said (primary judgment, 27 November 2008, at 5): "It is quite clear from Mr Campbell's evidence that the plaza simply ignored the communication from the Council. They did not do anything about it themselves. There was no suggestion that they checked the stairs or the bins and they did not even write back to the Council and say to the Council that the bins were on the Council's property, they did not intend to do anything about it but that they invited the Council to do something about it. As I say the communication was simply ignored. In my view the ignoring of that communication was a gross breach of the duty of care owed by the plaza." 46 Stojan argued at trial that the plaintiff's injuries were not caused by any breach of any duty of care it owed the plaintiff. It relied for that submission on the same matters it raised in relation to the argument both it and the Council advanced, that the plaintiff was guilty of contributory negligence in (a) failing to take an alternative, safer route; (b) failing to take reasonable care on the stairs once she realised visibility was low by either retreating from the stairway or by feeling forward with her foot to determine where the landing was; and (c) by failing to continue to hold onto the handrail although she believed she was stepping onto the landing and making a right hand turn. 47 The primary judge rejected all three of the causation/contributory negligence arguments. In relation to (a), he noted (primary judgment, 27 November 2008, at 6): "…the route the plaintiff chose to take was the shortest route, there is not a lot of difference in it in the sense the route she chose was not much more than 50 metres less than the other routes that were available. On the other hand looked at in another way the other routes were at least 25 to 30 per cent longer than the one that she chose. In my view she was entitled to chose [sic] that route. The stairs were not there as mere decorations, they were there as an invitation for people to use them to move from one place to another. It was the shortest route for her to take and seeing as she did that there was light at the bottom of the stairs for her to start mounting the stairs in any view her actions in taking that route were perfectly reasonable and what one might expect people to do in the circumstances." 48 In relation to (b), he stated (primary judgment, 27 November 2008, at 7): "It can always be said in hindsight in respect of falls that the person could have avoided the fall if the person had done something else. The question is whether what she did was a reasonable response in the situation. She believed that she had reached the landing and what she did was to let go of the handrail to walk across the landing to turn right to go up the next flight of steps. She made a mistake about that but in my view there is nothing to criticise her about in the way she proceeded in the sense of continuing to walk the few steps that she expected to have to take across the landing. It was reasonable for her to continue in my view rather than turn around and go back down the stairs and the problem occurred purely because of the fact that she could not see the step because the light was obscured by the bins. As to whether she should have inched forward with her foot of course that is always a possibility but in my view it is not reasonable to have expected her to do that in this situation." 49 In relation to (c), he concluded (primary judgment, 27 November 2008, at 7-8): "It would be highly unusual for somebody walking up the stairs to walk all the way around the landing in order to make the right hand turn. What she was obviously intending to do was simply walk across the landing and then walk up the next flight of stairs holding onto the railing again. I say that because [she] was being careful to hold on to the railing when she went up the first flight of stairs. In my view that was a reasonable course for her to take." 50 Accordingly, the primary judge found that causation was established and there was no contributory negligence on the part of the plaintiff: primary judgment, 27 November 2008, at 8. 51 The primary judge also found that the statutory defence under s 45 of the Civil Liability Act was not available to the Council on the basis that the Council had actual knowledge of the relevant risk as "the report by the police officer of the safety audit…alert[ed] the Council to the need for lighting to be installed in the area generally and in particular the removal of the clothing bins to provide better entrance/exit vision" and "they did not have to be alerted in specific terms by the safety audit report to the fact that because of the bins and because of the lighting somebody might fall down the stairs": primary judgment, 27 November 2008, at 10-11. 52 In relation to apportionment, the primary judge stressed that the greater responsibility for the plaintiff's accident lay with Stojan because it had arranged or allowed the bins to be placed in the car park and had failed to do anything in response to the Council's letter warning them of the dangers involved. His Honour noted that "the Council did at least bring the letter to the attention of the Plaza although not having heard anything about it, it did not do anything about it". Accordingly he apportioned responsibility 80 per cent against Stojan and 20 per cent against the Council, and dismissed the cross-claims by each defendant: primary judgment, 27 November 2008, at 11-12.

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Issues on appeal and cross-appeals 53 Stojan appeals against the primary judge's findings on liability on the basis that, first, there was insufficient evidence to enable the primary judge to conclude that it was an occupier of the stairs on which the plaintiff fell. Secondly, it complains that the primary judge's finding that it owed the plaintiff a general duty of care was not open on the pleadings. Thirdly, it argues that the primary judge erred in finding that correspondence from the Council enclosing the safety audit report alerted Stojan to the risk of the bins obstructing light on the stairs. Fourthly, it complains that the primary judge erred in finding that it breached any duty of care. 54 Stojan also challenges the primary judge's apportionment of 80 per cent liability to it, asserting that it was unreasonable and manifestly excessive. 55 The Council cross appeals on the basis that his Honour erred in finding that the Council owed a duty of care to the plaintiff, that any such duty required it to provide lighting to the stairway on which the plaintiff's accident occurred, and in failing to find that the Council discharged any duty of care it owed to provide adequate lighting to the stairs by forwarding the safety audit correspondence to Stojan. The Council also complains that the primary judge erred in finding that the safety audit correspondence alerted the Council to the risk of the bins obstructing light on the stairs and/or constituted notice to remove the clothing bins. 56 The Council also appeals on the ground that the primary judge erred in finding that the Council's duty of care required it to take steps to ensure the safety audit correspondence was "followed up"; or required it to do something to ensure the clothing bins were removed. The Council further complains, in so far as the primary judge made those findings, that they were not pleaded against the Council. 57 The Council originally sought to challenge the primary judge's finding that it had not established statutory immunity pursuant to s 45 of the Civil Liability Act. However it abandoned those grounds at the outset of the appeal. 58 The Council also seeks, in the alternative, for judgment to be entered on its cross-claim against Stojan for 80 per cent of the verdict. 59 Both Stojan and the Council appeal against the primary judge's failure to find the plaintiff guilty of contributory negligence.

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Submissions 60 Ms A Katzmann SC, who appeared for Stojan on appeal, made three principal complaints about the primary judge's findings on duty, breach and contributory negligence. 61 First, she complained that the primary judge erred in stating that Stojan was sued not only as occupier but also "arising from its general duty of care". She contended that the plaintiff's case against Stojan had only proceeded on the basis that Stojan was a concurrent "occupier" of the stairs with the Council. Accordingly she submitted Stojan could not be found to have breached any duty of care to the plaintiff unless it was found to be an occupier of the stairs. She contended that the primary judge made no explicit finding on the question whether Stojan was an occupier of the stairs, although she accepted that his Honour appeared to have assumed it was on the basis of his statement that "the stairs were constructed presumably by the people who constructed the plaza but they are constructed on property which belongs to the Council." 62 Next, Ms Katzmann challenged the primary judge's assumed finding that Stojan was an occupier of the stairs. Ms Katzmann relied on Mr Campbell's unchallenged evidence that Stojan exercised no control over the stairs. She submitted that it was not sufficient to make Stojan an occupier of the stairs that it benefited from their position merely because, as the primary judge found, their presence invited people to use them as a means of leaving the car park to access the park to which they led, and the shops beyond them. Ms Katzmann argued that while there was no evidence about who built the stairs, the evidence pointed to the Council as being both their owner and occupier. She drew attention to the Council's letter to the plaintiff's solicitors of 1 June 2004. 63 Secondly, Ms Katzmann disputed the primary judge's finding that the safety audit letter alerted Stojan to the risk (obstruction of lights from the car park) which eventuated (injury to the plaintiff due to darkness). She pointed out that the letter arrived 17 months before the incident, referred to bins on the stairs and that that could not have been a reference to the bins located in the car park at the time of the plaintiff's fall. She also argued that the letter was concerned with a different risk namely the opportunity they presented for concealment, which in turn related to security considerations affecting the public park. She argued that the risk that ultimately materialised was irrelevant to the risk referred to in the safety audit letter. 64 Ms Katzmann complained that while the primary judge found that Stojan owed a general duty of care to the plaintiff as a person who might be expected to have used the stairs, his findings gave no content to that duty. She contended the primary judge could not properly consider the questions of breach and causation without identifying the content of the duty Stojan was said to owe the plaintiff. Further, she complained, the primary judge did not refer to the criteria identified in s 5B, 5C or 5G of the Civil Liability Act. 65 As to s 5C of the Civil Liability Act, Stojan submitted that that provision made it clear that inaction was an available course. It argued the plaintiff had to show it was negligent in failing to respond to the safety audit letter and had failed to discharge that burden. Stojan also contended that the absence of illumination on the stairs, once the plaintiff reached the mid-point was an obvious risk of which, in any event, s 5G of the Civil Liability Act presumed her to have been aware. 66 Next, Ms Katzmann contended that in considering breach, the primary judge did not give sufficient weight to the degree of probability of the occurrence and the magnitude of the risk in circumstances. She contended that it was reasonable for Stojan to do nothing given that there were alternative well-lit and safe means of leaving the car park, the handrails on the stairs and the fact there was no evidence that anyone else had fallen on the stairs at any time and that there had been no complaints about the position of the bins. 67 Ms Katzmann contended that Stojan's duty to provide a reasonably safe means of access to and from the car park was discharged by the provision of lighting in the car park itself, alternative routes of exiting and if Stojan were to be found responsible for the stairs, a staircase free of defects. She also submitted that the primary judge had no basis for concluding that it was the bins that blocked the light from Elizabeth Ann Brown Park, it having been put in the plaintiff's evidence at trial only as an assumption she made. 68 Next Ms Katzmann submitted that even if Stojan did owe the plaintiff a duty of care, it was entitled to assume she would act reasonably: Phillis v Daly (1988) 15 NSWLR 65 (at 74). She submitted the risk in the circumstances was an obvious one and the plaintiff had failed to prove on the balance of probabilities that she was not aware of it: s 5G, Civil Liability Act. 69 Alternatively, Ms Katzmann submitted that the plaintiff either caused the accident herself or was guilty of contributory negligence in not having used, or considered using, safer, practicable alternatives to exit the car park, in continuing to ascend the stairs when she encountered the risk, and then in letting go of the handrail and "charg[ing] forward", when she knew it was dark and could not see where she was going. She relied on the plaintiff's concession that if she had been more cautious and felt with her foot, she could have avoided the fall, submitting that evidence either supported a finding that the plaintiff caused her own injury, or a 100 per cent reduction for contributory negligence: s 5S, Civil Liability Act. Alternatively she contended that applying s 5R of the Civil Liability Act should have led to the primary judge making a substantial discount for contributory negligence. 70 Finally, in relation to apportionment, Ms Katzmann submitted that the factual findings of the primary judge did not support his apportionment of liability in the proportions of 80 - 20 against Stojan and the Council. She argued his Honour's apportionment was unreasonable and manifestly unjust within the principles in House v R [1936] HCA 40; (1936) 55 CLR 499. She contended that the problem that gave rise to the risk was the absence of lighting on the stairs and the primary judge did not find that Stojan had any responsibility to light the stairs. She contended that if the Council had discharged its responsibility to illuminate the stairs, the risk of injury would have been eliminated. Ms Katzmann also complained the primary judge's grounds for apportionment erred in assuming that Stojan was alerted to the dangers involved by the receipt of the safety audit correspondence. 71 The Council also challenged the primary judge's findings that it owed the plaintiff a duty of care which it had breached. Mr S Glascott, who appeared for the Council at trial and on appeal, submits that the primary judge correctly found that the council was a "roads authority" for the unformed road/lane in which the stairs were situated, the unformed road being a "public road" within the meaning of the Roads Act. He argued that if the Council did owe the plaintiff a common law duty of care, it owed that duty as a "road authority" within the meaning of the provisions of the Roads Act to which I will refer and that the relevant source of its powers to install lighting on the unformed road was found in s 87(3) of the Roads Act. Mr Glascott argued that, as a road authority, the Council's duty of care was not analogous to that of an occupier of privately owned land. 72 Mr Glascott also submitted that the Council had granted the use, and therefore the relevant control of the relevant part of the unformed road, to Stojan and that the latter had assumed control of the car park and therefore the stairs since the car park's (and presumably the stairs') construction in 1976. 73 In relation to breach, Mr Glascott first contended that the primary judge erred in finding that the Council breached its duty by failing to install lighting over the stairs. He challenged the primary judge's finding that the safety audit letter alerted the Council to the risk posed by the clothing bins and the necessity for their removal to allow better vision. He contended, like Stojan, that the only issue about the clothing bins referred to in the letter related to their potential for concealment and that the lighting issues the letter raised were directed to other areas in the park not in the vicinity of the stairs. 74 Secondly, he argued that installation of light to the stairs was not a reasonable or practicable response when, upon assessment of the situation, the simple removal of the clothing bins with no extra cost would have restored artificial light to the stairs. He contended that if the latter was the reasonable response, the Council in fact discharged its duty of care by asking Stojan to remove the bins. Mr Glascott contended that it was reasonable for the Council to refer this matter to Stojan given the history of control exercised by Stojan over the car park. He contested the primary judge's finding that the Council was negligent in failing to check whether Stojan had done anything in response to the safety audit letter, contending that the Council was entitled to assume Stojan would act reasonably in considering the letter. 75 The Council adopted Stojan's submissions in relation to the primary judge's assessment of contributory negligence. As to the issue of apportionment it submitted there was no basis on which the Court should interfere with the primary judge's exercise of his discretion in this respect. 76 Mr D E Grieve of Queens Counsel who appeared for the plaintiff on appeal with Mr G Radburn, but not at trial, submitted that the plaintiff's case against Stojan at trial was that Stojan was the occupier of the car park which included the stairs upon which the plaintiff fell, and that Stojan breached its duty of care in allowing clothing bins to be placed in the car park next to the stairs and obstructing the light. Accordingly, the primary judge's findings in relation to the existence of a duty of care and breach of that duty were open on the pleadings. Mr Grieve also took issue with Stojan's submission on appeal that the bins may not have been the object that obscured the light to the stairs, contending that as the plaintiff's case was run entirely on this basis, Stojan should have raised this argument at trial. He contended that the issue of breach in relation to Stojan was simple: had it removed the bins, light would have been restored to the stairs. 77 Mr Grieve acknowledged that the primary judge had not expressly referred to various provisions of the Civil Liability Act, but contended that he determined the issues of liability and breach by reference to the principles those sections mandated: Doubleday & Anor v Kelly [2005] NSWCA 151 (at [15]). 78 Mr Grieve contended that the Council owed the plaintiff a duty with respect to providing safe passage on the stairs not only because of its status as a "roads authority" with respect to the road, but also because the stairs were a means of access to its public park. 79 In relation to breach by the Council, he submitted that the safety audit correspondence related to increasing available light for safety as well as surveillance purposes. Further, Mr Grieve pointed to the Council's claim on 26 March 2002 that it would make a cost effective design for lighting requested in the letter from the New South Wales Police and would submit it for budget consideration. There was no evidence adduced by the Council to demonstrate further consideration of the matter. He submitted the Council could not absolve itself of responsibility for the stairs by saying it had referred the safety audit letter to Stojan. Rather, having been alerted to the risk, it should have ensured Stojan remedied the situation. 80 Mr Grieve contended that the primary judge's findings on causation and contributory negligence do not warrant interference. In particular, he contends that the submissions by Stojan and the Council on contributory negligence impose a standard for avoidance of risk that can only be justified by hindsight reasoning. He submitted that the plaintiff had reacted in a reasonable manner to a situation in which she was placed because she was enticed to go up the staircase in the belief that it was sufficiently illuminated. 81 On the re-apportionment orders sought by the plaintiff's cross-appeal, Mr Grieve contended that as the concurrent occupiers of the land in question both Stojan and the council owed a duty of care to persons who chose to use the staircase at night. He contended that the unlit staircase constituted a patent defect in the condition of the property which was or ought to have been obvious. Accordingly, the breach did not rest on the fact that they received the letter from New South Wales Police or otherwise had notice that the lack of lighting constituted a danger. In this way, Mr Grieve asserted, Stojan and the Council were equally responsible for the accident.

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[70] It will be a question of fact in each case whether there is a sufficient degree of control to make the person an occupier…." 83 It should be noted, as Young CJ in Eq (as his Honour then was) observed in Clarke v Coleambally Ski Club Inc [2004] NSWCA 376 (at [59]), that in Wheat v E Lacon & Co Ltd [1966] AC 552 (at 579), immediately after the passage to which Mason P referred, Lord Denning said: "There are other people who are 'occupiers,' even though they do not say 'come in.' If a person has any degree of control over the state of the premises it is enough." 84 The facts of this case insofar as Stojan is concerned, bear a resemblance to those considered by the High Court Gorman v Wills [1906] HCA 84; (1906) 4 CLR 764. In that case, according to the headnote, the defendants were lessees of the ground and first floors of a building which they occupied for the purpose of their business. The only means of communication between the two floors was by a staircase leading from a room on the ground floor. The lease authorised the lessees to use another staircase in an adjoining building for access to their premises above the ground floor. The building consisted of more than two floors but it did not appear whether the other floors were occupied or not. The lease, which contained a covenant by the lessees to keep the premises in repair, did not in terms include the staircase in the building. This staircase was used daily by the lessees and their servants. The female plaintiff, having called to see the lessees on business, was invited by one of their servants to go from one floor to another by the staircase, and, while doing so, she tripped on one of the steps, fell down, and was injured. She brought proceedings in negligence against the lessees, who denied that the staircase was in their possession or control. The trial judge granted a nonsuit, on the ground that the defendants were not shown to be in possession of the premises or of the staircase in such a way as to impose upon them any legal responsibility for their condition. The High Court held that there was evidence to go to the jury that the staircase was in the possession or control of the defendants in such a way as to make them responsible for its condition to persons invited by them to use it. Barton J said (at 775 - 776): "… [F]or the purposes of their own business the defendants brought the female plaintiff into a situation which a prudent person in their position would know to involve a certain risk to her. So far as they could reasonably exercise any control of that situation which would save her from damage, the result of a danger which they ought to have observed, it was their duty to exercise that measure of control. Assuming in their favour that they were not entitled in law to exercise the complete physical control or care which would be involved in keeping or putting the staircase in reasonably safe repair, and so preventing, or when it existed removing, the danger to which business visitors to their offices were exposed, then were they relieved of all duty ? Would it have been out of their power to exercise within reasonable bounds any saving control of the situation? Clearly it would not have been out of their power. So long as a danger existed which they ought to have known, and which they were inviting business visitors, who knew nothing of it, to incur, it was at least their duty to protect them, as far as possible, against that which they, if their law is good, had no legal right to physically prevent or remove . The least onerous form in which they could discharge that duty was to warn the female plaintiff. That minimum of care or control does not, at the present stage of the evidence, appear to have been exercised by them. Until the facts stated in evidence on the part of the plaintiffs are rebutted, as they may be when the evidence for the defendants comes to be heard, I am of opinion that these circumstances are such as to constitute a prima facie case of negligence, and so to require an answer before the defendants can be absolved; and that they come within the meaning of the remarks of Brett M.R. in Heaven v. Pender [51] , at p. 509, cited in Mountney v. Smith ". (emphasis added) 85 In Kevan v Commissioner for Railways [1972] 2 NSWLR 710 Jacobs P (Hope and Reynolds JJA agreeing) held (at 713), applying Gorman v Willis that "[a] right to invite a person to go over the land of another…denotes a degree of possession or control over that land sufficient to require the invitor to be classified as an occupier vis-à-vis any of his invitees". Jacobs P also referred (at 713), with approval, to Lord Denning's statements in Wheat v E Lacon, to the effect that "it is not necessary, in order to be an occupier, that a person should have entire control over the premises. He need not have exclusive occupation. It suffices that he has some degree of control." In Kevan, the necessary degree of control was found (at 713 - 14) in "the legal right to extend an invitation to the plaintiff" even though the legal obligation of repair was placed contractually upon a third party company. In his Honour's view, that fact "did not reduce or displace the right of the Commissioner for Railways to repair the right of way himself, if the company did not perform its contractual obligation". 86 It needs hardly be said that the fact Stojan did not consider it was the occupier of the stairs or that it bore any responsibility in relation to their maintenance and, accordingly, set to one side correspondence received from the Council alerting it to issues concerning the safety of the stairs does not detract from the conclusion that it was the occupier, even if not exclusively, of the stairs. 87 In my view, the primary judge was entitled to find that Stojan occupied the stairs. First, the evidence demonstrated that it had constructed the stairs. The statement that that was the case was made by Mr Campbell, who had managed the Plaza on Stojan's behalf since 1976 in or about the time the Plaza was constructed. Stojan made no attempt at trial to contradict Mr Campbell's statement and, indeed, called him as its only witness. Further, the stairs were constructed on land which the Council permitted Stojan to use as part of the Plaza. Thus, Stojan had, at least, a licence to use the car park. It is plain that it took advantage of that licence to use the air space above the unconstructed road reserve to construct the stairs leading to Elizabeth Ann Brown Park. It seems apparent from the evidence which the primary judge accepted that, by granting Stojan a licence to use the unconstructed road reserve, the Council gave it the legal right to invite both users of the Plaza, as well as members of the public generally, to enter the car park, whether by car or by foot. At least insofar as users of the Plaza were concerned (which included the plaintiff) it extended that invitation to such people for the purposes of its business. That degree of possession or control over the stairs was sufficient, within the authorities to which I have referred, to classify Stojan as an occupier of the stairs vis-à-vis the plaintiff. 88 It should also be recalled that the plaintiff's case, as ultimately put against Stojan, was not that it should have illuminated the stairs but, rather, that it was negligent in permitting the clothing bins to be placed immediately adjacent to the stairway, thus obstructing their illumination.

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Was the Council a "roads authority" in relation to the stairs? 91 The Council argued that if it did owe a common law duty of care to the plaintiff, it owed any such duty in its capacity as a "roads authority", and that the act of negligence of which the plaintiff complained against it, failing adequately to illuminate the stairs, constituted road work. 92 The proposition that the Council was relevantly a "roads authority" does not appear to have been challenged at trial, however on appeal Stojan disputed the proposition that the Council was a "roads authority" either in relation to the unformed road reserve which formed part of the car park, or, in particular, insofar as the stairs were concerned. The Council did not resist the proposition that Stojan was entitled to put these matters in issue on appeal, no doubt because the question was one substantially of law, and, to the extent it involved facts, all relevant evidence had been adduced: Multicon Engineering Pty Limited v Federal Airports Corporation (1997) 47 NSWLR 631; Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491. 93 However Mr Grieve complained that "the Council's purported defence under the Roads Act should have been specifically pleaded" and that if it had been agitated at trial, evidence could have been led to meet the point: Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1. This objection cannot be sustained. The Council's defence pleaded that it was a roads authority pursuant to the Roads Act. Its written submissions at trial included extensive reference to the provisions of the Roads Act to which I will shortly refer and contended that if it was subject to a duty of care, that duty was owed by it as a roads authority. The question whether the Council was relevantly a roads authority was also relevant to the Council's defence under s 45 of the Civil Liability Act. 94 If the Council was a "roads authority" insofar as the stairs are concerned, any duty of care to which it was subject should be defined by reference to the nature of its statutory powers and the legislative intention discernible from the terms in which those powers are granted, considered in the light of the purposes for which they are conferred: Leichhardt Municipal Council v Montgomery [2007] HCA 6; (2007) 230 CLR 22 (at [20]) per Gleeson CJ (with whom Crennan J agreed); (at [50]) per Kirby J; (at [137]) per Hayne J (with whom Crennan J also agreed); (at [171]) per Callinan J. 95 The question whether the Council was a roads authority, relevantly in relation to the stairs, takes the inquirer down a long and winding legislative path through the interstices of the Roads Act. 96 The first object of the Roads Act is to set out the rights of members of the public to pass along public roads: s 3(a). Other objects of the Roads Act to which the Council pointed are the conferral of certain functions (in particular, the function of carrying out road work) on the RTA and on other roads authorities (s 3 (f)), providing for the distribution of the functions conferred by the Act between the RTA and other roads authorities (s 3(g)) and the regulation of the carrying out of various activities on public roads (s 3(h)). 97 Section 5 of the Roads Act provides that a member of the public is entitled as of right to pass along a public road whether on foot, in a vehicle or otherwise. 98 The Dictionary to the Roads Act defines a "roads authority" as "a person or body that is, by or under this Act, declared to be a roads authority and, in relation to a particular public road, means the roads authority for that road". 99 Section 7 of the Roads Act relevantly provides: "… (3) The regulations may declare that a specified public authority is the roads authority for a specified public road, or for all public roads within a specified area, other than any freeway or Crown road. (4) The council of a local government area is the roads authority for all public roads within the area, other than: (a) any freeway or Crown road, and (b) any public road for which some other public authority is declared by the regulations to be the roads authority. (5) A roads authority has such functions as are conferred on it by or under this or any other Act or law." No party contended that there was any relevant regulation relating to sub-section 7(3). It was common ground that the lane and the unformed road reserve were within the Council's local government area. 100 Section 146(1) of the Roads Act, relevantly provides that:

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(d) does not constitute the owner of the road as an occupier of the land." 101 "Public road" is defined in the Dictionary to the Roads Act to mean: "(a) any road that is opened or dedicated as a public road, whether under this or any other Act or law, and (b) any road that is declared to be a public road for the purposes of this Act." 102 There is no definition of "road" in the Roads Act. Rather the Dictionary states that "road includes": "(a) the airspace above the surface of the road, and (b) the soil beneath the surface of the road, and (c) any bridge, tunnel, causeway, road-ferry, ford or other work or structure forming part of the road." (emphasis added) 103 The Council accepted that there was no evidence that either the lane or the unformed road reserve had been opened, dedicated or declared to be a public road within the meaning of the Roads Act. However it sought to invoke s 249(1) of the Roads Act, which states: "(1) Evidence that a place is or forms part of a thoroughfare in the nature of a road , and is so used by the public , is admissible in any legal proceedings and is evidence that the place is or forms part of a public road ." (emphasis added) 104 The Council submitted that the evidence disclosed that the lane and the unformed road reserve were used by vehicles and pedestrians, that the stairs were used by pedestrians so that that part of the lane/unformed road reserve containing the stairs was "a place [that] is or forms part of a thoroughfare in the nature of a road, and is so used by the public" and therefore formed part of a public road. Stojan submitted that even if the staircase was a thoroughfare, whether for vehicular or pedestrian access, it was not a thoroughfare "in the nature of a road". It contended that there are a great number of areas over which members of the public are entitled to "pass and repass", including public parks and beaches, which would not be considered a "road" in the ordinary sense. 105 Section 249(1) requires three conditions to be satisfied. First that a place form "part of a thoroughfare", secondly that that thoroughfare be "in the nature of a road" and thirdly that the place "is so used by the public". The Roads Act does not provide express guidance on those terms save, that it should be observed that it is apparent from the generality of the first object (s 3(a)), that the rights of members of the public to pass along public roads means in whatever manner, whether by foot or in a vehicle. That should be borne in mind when considering the expression "in the nature of a road". 106 Otherwise the search for the meaning of the three s 249(1) conditions must be found in the common law. This accords with Hayne J's observation in Leichhardt Municipal Council v Montgomery (at [140]), that "[t]he form and content of these provisions of the Roads Act about ownership of roads, and about road work, may be properly understood only if account is taken of those historical features of the common law concerning the liability of highway authorities that were traced in detail in Brodie…". 107 In Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (at [119]), referring to Windeyer J's judgments in Permanent Trustee Co of NSW Ltd v Campbelltown Corporation [1960] HCA 62; (1960) 105 CLR 401 and City of Keilor v O'Donohue [1971] HCA 77; (1971) 126 CLR 353, Gaudron, McHugh, Gummow JJ said (footnotes omitted): "At common law, explained Windeyer J … a highway was a thoroughfare leading from town to town or village to village, but it became identified, again as Windeyer J put it, as 'a way over which all members of the public are entitled to pass and repass on their lawful occasions'. … In Australia, the vesting by statute in local government authorities of the fee simple in land over which there are public streets leaves the streets dedicated to the public … The authorities hold the fee simple 'subject to the rights of the public to use the street for passing and re-passing, except in so far as those rights may be taken away or limited by statute'." 108 In City of Keilor v O'Donohue (at 363) Windeyer J remarked that the traditional usage of the term "road" as being limited to "a thoroughfare leading from town to town or village to village" was no longer applicable: "But it is no longer necessary that to be a highway a road should lead from town to town, or village to village. Indeed it need not be a thoroughfare at all: it may be a cul-de-sac. It need not be a main road, a high-way as distinct from a by-way. In short, the characteristic for law of a highway is simply that it is a way over which all members of the public are entitled to pass and repass on their lawful occasions..." (emphasis added) 109 The ordinary meaning of a "thoroughfare" has been held to be "a road which, either regularly or by license, passes from one place to another, not necessarily by a specifically defined way, but generally by getting from one place to another over an intervening space, by right or by permission of the owner": Sheahan v Jackman (1898) 4 Argus LR 47 (at 48) per Madden CJ, cited in Re application for a Writ of Certiorari against the Shire of Gingin; Ex parte Machlin (1999) 103 LGERA 21 (at 30) per Murray J. The "primary meaning of a road or thoroughfare is that people usually pass along it": Sheahan v Jackman (at 48). 110 Courts have held to be "roads" areas without what might be regarded as the conventional characteristics of a road. Thus a beach, frequently used by four-wheel drive vehicles (land rovers and similar vehicles, beach buggies and motor-cycles) was held to be a "public street" for the purposes of a claim for damages pursuant to s 30(1) of the Motor Vehicles (Third Party Insurance) Act 1942 (NSW) (Boyton v Nominal Defendant [1980] 2 NSWLR 509). 111 The evidence supported the proposition that the lane in the Park that led to the dentist's practice was a thoroughfare and that it was used "as a road". Both vehicles and pedestrians passed along it to get from one place to another. The car park is more problematic, at least insofar as vehicular traffic is concerned. Vehicles presumably used the car park for the purpose for which it was intended, to park their cars then go about their business. In other words, the car park was not used as a thoroughfare for vehicular purposes. However it was clearly used as a thoroughfare by pedestrians and, accordingly the first and second conditions of s 249(1) are satisfied in that respect too. 112 The words "open to or used by the public'' are apt to "describe a factual condition consisting of any real use of the place by the public as the public - as distinct from use by license of a particular person or only casual or occasional use": Schubert v Lee [1946] HCA 48; (1946) 71 CLR 589 (at 592) per Latham CJ, Rich and Dixon JJ. Thus their Honours pointed out (at 592), "[i]t may be necessary to distinguish places open to members of the public as such from places left open by the owner but obviously intended only for the use of a particular description of person, for example, visitors to his shop or other premises. Prima facie the words … mean streets, &c., which actually are open to or used by the public, so that there is some need for protection of the public in the use of such streets, &c". Notwithstanding this distinction, the Court went on to hold (at 593) that "the words 'open to or used by the public' should … be construed in the same way, so that a lane falls within the definition [of road] if in fact it is 'open to or used by the public,' whether or not there is a public highway over it." 113 It is plain that the lane in the Park was open to the public as, too, in my view was the car park, particularly again to pedestrians. There was no evidence that vehicular access to the car park was limited to those using the Plaza so as to support the proposition that that area was not used by the public, although, as I have said, I query whether vehicular use of the car park was use "in the nature of a road". It is unnecessary to pursue that point. 114 In my view the Council established that both the lane and the unformed road reserve formed part of a public road so that it was a roads authority in relation to them. 115 "Footway" is defined in the Dictionary to mean "that part of a road as is set aside or formed as a path or way for pedestrian traffic". Accordingly the stairs, which formed a path or way, albeit a substantially vertical one in the airspace above the car park, for pedestrian traffic passing over between the lane and the car park were part of the public road. I would conclude, accordingly, that the plaintiff was injured on a public road. A similar process of reasoning was undertaken by Hayne J in Leichhardt Municipal Council v Montgomery (at [137]) to conclude that Mr Montgomery, who was injured when his foot went through the broken cover of a telecommunications pit in the footpath on the side of Parramatta Road, Leichhardt, suffered his injury on a public road. 116 The Council next submitted that the plaintiff's allegation that it failed to install a light over the stairs was an allegation that it failed to carry out "traffic control work" on an unclassified road under s 87(3) of the Roads Act. It did not explain what consequences followed if this submission was made good and I will only address it briefly. 117 Section 71 empowers a roads authority to carry out road work. "Road work" is extensively defined in the Dictionary, but relevantly includes "… any kind of work … constructed or installed on or in the vicinity of a road for the purpose of facilitating the use of the road as a road … but does not include a traffic control facility". "Traffic control facility" has the same meaning as it has in Part 6 of the Transport Administration Act 1988 (NSW), relevantly, in my view, as found in s 45E(a), "traffic control lights on roads or road related areas, and equipment used in connection with traffic control lights". The Council contended that the installation of a light over the stairs would involve the installation of a "traffic control facility", relying on s 45E, but in my view it is unnecessary to track down that route. The installation of a light over a public road, bearing in mind that a footway (here the stairs) forms part of a road, would be road work for the purposes of the Roads Act as it would facilitate its use for the passage of pedestrian traffic.

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Did the clothing bins obscure the light on the stairs? 120 The primary judge concluded that it was the placement of the clothing bins which obstructed the light which caused the plaintiff to become confused as to where the landing on the stairs was. It was Stojan's failure to take action having regard to that risk, which in his view was notified to Stojan by the safety audit letter which led his Honour to conclude that Stojan had breached its duty of care. 121 Stojan amended its notice of appeal at the hearing to challenge his Honour's finding that the bins obstructed the light upon the stairs at night. It complained that his Honour's conclusion was not supported by the photographic evidence, was otherwise unsupported by the evidence and therefore no more than conjectural: Blacktown City Council v Hocking [2008] NSWCA 144 (at [167] - [169]) per Tobias JA. 122 The plaintiff gave evidence that the lights in the car park were "on the western side of the Plaza, up on the … brick walls". She was able to see when she started to go up the stairs but, "… when [she] hit where the bins were, … it was just impossible to see". In cross-examination by Mr Glascott for the Council, it was put to the plaintiff that it was a "white bin to the left of the handrail … which obscured the light on the steps" in the vicinity of where she tripped, to which she responded that she "imagine[d] that would be right … because … it became extremely dark in that position" 123 It is apparent from the photographs that there were seven steps on the stairs before the landing. A handrail ran along the left of the stairs. At the top of the first seven steps there was a landing where the user then turned right to ascend the remainder of the stairs. It is apparent from the photographs that the clothing bins were almost as high as the handrail at the landing. It also appears from the photographs that the bins sat against the handrails from about the fifth step. It is apparent from marks the plaintiff placed on the photographs that she became aware how dark the stairs were on about the fifth step. 124 It is apparent from the position of the lights on the Plaza building that they would have shone towards the stairs but that the clothing bins could have interrupted the beam of light. In my view the primary judge was entitled to conclude the clothing bins did obscure the light on the stairs, both because of the plaintiff's evidence as to the relationship between the darkness on the stairs and the position of the clothing bins and by referring to the photographs. While the plaintiff's answer in cross-examination was somewhat tentative, her evidence in chief was clear that it was once she got to the point on the stairs where the bins were that she could not see. This was not a case in which his Honour was forced to rely solely on the photographs. The conclusion that the bins obscured the light from the Plaza is reinforced by the fact that Stojan led no evidence about the lighting in the car park and was the party in the best position to do so: see Blatch v Archer (1774) 1 Cowp 63 (at 65); 98 ER 969 (at 970) per Lord Mansfield; Armory v Delamirie (1722) 1 Stra 505; 93 ER 664; Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298; Ho v Powell [2001] NSWCA 168; (2001) 51 NSWLR 572. Breach of duty 125 Determining whether either Stojan and/or the Council has breached their respective duty of care to the plaintiff turns on the content of their duty and on s 5B of the Civil Liability Act. 126 Neither Stojan or the Council was negligent in failing to take precautions against a risk of harm unless there was a risk of which either knew or ought to have known, the risk was not insignificant, and the circumstances were such that a reasonable person in their position would have taken those precautions: s 5B(1). In the case of Stojan, it should be recalled, the precaution the plaintiff alleged it ought to have taken was moving the clothing bins so they did not obscure the light emanating from the western wall of the Plaza. In the case of the Council, the plaintiff alleged it ought to have placed a light over the stairs. 127 Whether either Stojan or the Council ought to have taken these precautions turned on (amongst other relevant things) the probability that the harm would occur if care were not taken, the likely seriousness of the harm, the burden of taking precautions to avoid the risk of harm and the social utility of the activity that created the risk of harm: s 5B(2). Such questions had to be answered prospectively, before the plaintiff fell: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48 (at [31]). 128 Section 5B(2) sets out the test posed by Mason J in Wyong Shire Council v Shirt (at 47 - 48) concerning breach of duty: Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Reports ¶81-818 (at [27], [45]) per Ipp JA (Spigelman CJ and Tobias JA agreeing). Accordingly the Court must have regard to the "probability of the risk occurring, the magnitude of the consequences - which may vary from small to extremely grave - and the cost or inconvenience of eliminating the risk …": Western Suburbs Hospital v Currie (1987) 9 NSWLR 511 (at 521) per McHugh JA (as his Honour then was); applied in Phillis v Daly (at 67) per Samuels JA; see also (at 71) per Mahoney JA; (at 76 - 77) per McHugh JA. 129 Assessment of the issue of breach depends on identifying the relevant risk of injury: Dederer (at [18]). In this case, it was the risk that a person such as the plaintiff might be injured if lack of illumination on the stairs meant he or she was unable to see where they were going. 130 As I have said, it was necessary that the plaintiff establish that Stojan and the Council knew, or ought to have known of that risk: s 5B(1)(a), Civil Liability Act. 131 Much time was devoted by Stojan and the Council to refuting the proposition that the safety audit letter put them on notice of the particular risk which eventuated, namely lack of lighting on the stairs leading to the plaintiff falling. However the question whether either breached their respective duty of care to the plaintiff did not turn on whether they had actual knowledge of the particular risk which eventuated, particularly bearing in mind that the Council abandoned its reliance upon s 45 of the Civil Liability Act. The question whether Stojan and/or the Council were guilty of a breach of their duty of care turned on whether a reasonable person in their position would have foreseen that their conduct involved a risk of injury to the plaintiff, or to a class of persons including the plaintiff: Wyong Shire Council v Shirt (at 47). 132 That does not mean, however, that the safety audit letter can be set to one side. In my view that letter did alert both the Council and Stojan to risks associated with the position of the clothing bins adjacent to the stairs. Although the letter did not identify the precise risk which eventuated (bearing in mind my earlier observations that actual notice was unnecessary) the safety audit letter did point out the opportunities the clothing bins provided for concealment, clearly referring to the fact that they obscured parts of the stairs. 133 Further, insofar as the Council is concerned, the safety audit letter recommended the installation of lighting in, among other areas, the stairway. The letter clearly referred to the stairs on which the plaintiff fell as, according to the Draft Management Plan, there were no other stairs in the vicinity. While the apparent intention of the recommendation about lighting was "to encourage more frequent patronage of the Park thus creating more natural surveillance (people seeing in and out)", that part of the letter, in my view, clearly alerted the Council to the inadequacy of the existing lighting over the stairs for the purposes of visibility. It was not, in my view, a reasonable response on the Council's part to the risk of inadequate illumination of the stairs, of which it ought to have been aware, merely to refer the letter to Stojan, then apparently to do nothing about it. It had a positive duty to exercise reasonable care so that the stairs were safe for users exercising reasonable care for their own safety. There was no suggestion that it had delegated those duties to Stojan: cf Leichhardt Municipal Council v Montgomery. 134 Insofar as Stojan was concerned, Mr Campbell said that after he received the safety audit letter "we didn't take any action to remove the bins because we didn't feel it was our prerogative". It is difficult to understand that answer. While Mr Campbell quibbled about whether he gave Lifeline permission to put the bins adjacent to the stairs, he knew that the bins were in that position for about two years prior to the plaintiff's accident. It appears that he never considered whether their position would block the light over the stairs because he took the view that "it wouldn't have been part of my job to do that". 135 However once it is apparent that the bins did obscure the light from the Plaza and had been in that position for two years prior to the plaintiff's fall, the conclusion that Stojan ought to have known of the risk posed to users of the stairs is inevitable. 136 In my view the primary judge was entitled to find that the safety audit letter alerted both the Council and Stojan to the risk posed, in the Council's case, by the lack of illumination over the stairs, and in Stojan's case by the concealment afforded by the clothing bins in their position adjacent to the stairs. Further, both ought, in any event, to have foreseen that the lack of illumination posed a risk to users of the stairs who were taking reasonable care for their own safety. That was not an insignificant risk: cf s 5B(1)(b), Civil Liability Act. The risk that a user of the stairs, whether ascending or descending, deprived of the opportunity generally available to pedestrians of seeing and avoiding immediate dangers (Brodie (at [163])) may suffer serious injury as a result of falling on the stairs was high. It was such that, in my view, a reasonable person in the Council and Stojan's position should have ensured both that the stairs were properly illuminated and that anything which posed a risk to that illumination was removed: s 5B(1)(c), Civil Liability Act. This is particularly so where, as the following discussion demonstrates, the burden of taking precautions against the risk to which the plaintiff was exposed was not great: s 5B(2)(c), Civil Liability Act. 137 The primary judge accepted the plaintiff's unchallenged evidence that the cost of putting a light at the stairs was around $8,500. The Council apparently abandoned its pleaded defence under s 42 of the Civil Liability Act. While it sought to rely on the response to the safety audit letter and the statement that it was "limited by funds with respect to lighting requests", that response clearly related to all of the recommendations in the safety audit letter concerning lighting which were far more extensive than merely lighting the stairs. In my view, bearing in mind the likely seriousness of the harm which could behalf a person who fell on the stairs if they were insufficiently lit, the Council did not discharge its evidentiary burden of establishing that that risk was outweighed by the burden of taking precautions to avoid the risk of harm. 138 The same observation applies to Stojan. It had given Lifeline permission to place the clothing bins in the car park. It called no evidence to suggest it could not have asked Lifeline to remove them. In any event it did not have to remove the clothing bins from the car park entirely, merely relocate them to a position where they did not block light falling onto the stairs. There was no evidence that such an exercise would have involved any expenditure on Stojan's part. 139 There could be little doubt that providing the stairs to enable members of the public to have access both to the plaza and the Park was of social utility. However the utility of the exercise was undermined if the stairs were dangerous at night in the absence of precautions being taken to remove the risk. The social utility of providing the stairs did not militate against the need to take precautions to ensure they were as safe as reasonable care could make them: cf s 5B(2)(d). 140 In my view the primary judge did not err in concluding that both the Council and Stojan breached their duty of care to the plaintiff.

[32]

Causation 141 Only Stojan complained that the primary judge erred in finding that its breach of duty caused the plaintiff's injury. It dealt with this argument on the same basis as it put its argument on contributory negligence, and it will be convenient to deal with it under that heading. However doing so it is necessary to bear in mind that the issue of causation is to be dealt with in accordance with s 5D of the Civil Liability Act. That requires the Court to consider that the breach of duty identified was a necessary condition of the occurrence of the harm and that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused. Section 5D(1) "shows, the 'but for' test [of causation] is now to be … a necessary test of causation in all but the undefined group of exceptional cases contemplated by s 5D(2)": Adeels Palace (at [45], [55]). 142 As I said in Mobbs v Kain [2009] NSWCA 301 (at [107]), with Macfarlan JA's concurrence: "The principles embodied in s 5D of the Civil Liability Act accord with the common law concept of causation: Coastwide Fabrication & Erection Pty Ltd v Honeysett [2009] NSWCA 134 (at [59]) per McDougall J (Ipp and Young JJA agreeing). In applying the common law principles in the context of a motor vehicle accident, the relevant test for causation is that stated by McHugh J in Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232 at [23], namely 'the breach of duty by the defendant caused the particular damage that the plaintiff suffered…[and] [t]he existence of the relevant causal connection is determined according to common sense ideas': see Flounders v Millar [2007] NSWCA 238 (at [91]) per Hoeben J; (at [38]) per Ipp JA (Handley JA agreeing with both judgments)." 143 In Adeels Palace (at [43] - [44]), the High Court (French CJ, Gummow, Hayne, Heydon and Crennan JJ) observed that dividing the determination of the question whether negligence caused particular harm into the two s 5D(1) questions expressed "the relevant questions in a way that may differ from what was said by Mason CJ, in March v Stramare to be the common law's approach to causation". Their Honours found it unnecessary to examine to what extent the March v Stramare (E & M H) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 approach might lead to a conclusion about factual causation different from the conclusion that should be reached by applying s 5D(1), emphasising that where s 5D was engaged, its provisions must be applied.

[35]

Determination of issue of causation and contributory negligence 148 I have set out the circumstances upon which Stojan (whose submissions the Council adopted insofar as contributory negligence was concerned) relies to challenge the primary judge's finding of causation and contributory negligence. 149 In my view Stojan's breach of duty in failing to remove the bins from their position adjacent to the stairs, thus leading to the area of stairs where the plaintiff fell being cast into darkness, caused the plaintiff's injury. The plaintiff fell because when she was partway up the stairs she could not see where she was going. It is true, as I shall shortly discuss, that she then behaved to a certain extent unwisely in letting go of the handrail and moving forward precipitously, however she would not have found herself in that predicament had the lighting onto the stairs not been obscured by the clothing bins. Stojan's breach of duty was, accordingly, a necessary condition of the occurrence of the harm to her. Stojan did not contend, that if that conclusion was reached, there was any reason why its liability should not extend to the harm so caused. 150 In my view the plaintiff was not guilty of contributory negligence either in failing to use alternative exits to the car park (bearing in mind, at least in part, that the primary judge found it was the shortest route and, too, the natural human inclination to minimise effort) or in continuing to ascend the stairs when she encountered the risk. As to the first proposition, the plaintiff was unaware that there was any risk associated with ascending the stairs until she reached the fifth step. As to the second, the risk of descending the stairs in the dark was, in my view, as great as the risk of continuing to ascend them. I would not hold the plaintiff guilty of contributory negligence in either of these respects. 151 However the position is different in considering what the plaintiff did when she realised it was dark and she could not see where she going. At that point she both let go of the handrail and charged forward in circumstances where she acknowledged in cross-examination that had she been more cautious and felt with her foot she could have avoided the fall. 152 It was reasonable, as I have said, for the plaintiff to commence her exit of the car park via the stairs. However once she realised she could not see where she going, ought to have known (s 5R(2)(b)) that moving forward hastily in the dark without retaining a handhold could expose her to the risk of injury. She conceded in cross-examination that she ought not to have let go of the handrail and ought to have been moved more cautiously. In my view that was the approach a reasonable person in her position ought to have adopted. The plaintiff was, accordingly, guilty of contributory negligence but not, as Stojan contends, to the extent of 100 per cent: cf s 5S, Civil Liability Act. 153 In my view, with respect, the primary judge erred in failing to take into consideration the plaintiff's evidence that she let go of the handrail and charged forward and, further, in not explaining why, in the circumstances, it was not reasonable to have expected her to have moved forward cautiously in the circumstances. These were not matters, in my view, devised with the benefit of hindsight but constituted conduct which might reasonably be expected of the plaintiff in the circumstances. 154 I would find the plaintiff was guilty of contributory negligence to the extent of 50 per cent.

[38]

48 To set aside an apportionment of liability it must be shown that the failure to exercise the discretion involved in the apportionment exercise properly was unreasonable or plainly unjust: Rolls Royce Industrial Power (Pacific) Limited v James Hardie & Co Pty Limited (2001) 53 NSWLR 626 at 637 [60] per Stein JA with whom Davies A-JA agreed (655 at [189]). Fitzgerald A-JA was of the view that an appeal court was not entitled to interfere "if the trial judge's apportionment was reasonably open." (653 at [172]). Rolls Royce was appealed to the High Court as Amaca Pty Ltd v State of New South Wales [2003] HCA 44, (2003) 77 ALJR 1509. As Tobias JA (with whom Sheller and Foster AJA agreed) recently observed, the appeal was allowed on an issue which did not affect the correctness of Stein JA's statement of principle: Rexstraw v Johnson [2003] NSWCA 287." 157 In apportioning liability as between Stojan and the Council, the primary judge was required to determine the amount of contribution recoverable by each which was just and equitable having regard to the extent of their respective responsibility for the damage: s 5(2), 1946 Act. 158 The primary judge appears to have concluded that Stojan bore the greater responsibility for the plaintiff's damage because the Council had brought the safety audit letter to its attention. 159 In my view, with respect, the primary judge's apportionment of liability was unreasonable or plainly unjust in the sense to which the authorities refer. 160 The risk the plaintiff encountered was that of darkness on the stairs. Both Stojan and the Council were responsible for that situation, the Council for failing to illuminate the stairs and Stojan for failing to remove the bins which obscured the light which was available from the western walls of the Plaza. Both Stojan and the council benefited from the presence of the stairs, although it must be accepted that the evidence established that they were constructed by Stojan. Nevertheless the stairs were on the Council's land, under the Council's control as a roads authority and were used by members of the public to access its Park. 161 Moreover, the primary judge's attribution of greater responsibility to Stojan because the Council had brought the safety audit letter to its attention, failed to take into consideration his earlier finding that simply passing on the letter to Stojan without taking any further steps either to rectify the situation itself, or to determine whether Stojan had done anything was an inadequate response by the Council. Taking that earlier finding into consideration the Council should, in my view, be exposed to greater liability than that allocated by the primary judge. 162 In my view, liability should have been apportioned two-thirds as to Stojan and one-third as to the Council.

[39]

Orders 163 The primary judge ordered that there be a verdict for the plaintiff and judgment in the sum of $336,271.70 with Stojan to pay 80 per cent and the Council to pay 20 per cent of it. He dismissed both cross-claims. 164 However, at common law a plaintiff who recovered damages against several concurrent tortfeasors was entitled to several judgments against each for the full amount. Apportionment was a matter between the defendants which did not concern the plaintiff: Timberland Property Holdings Pty Ltd v Julie Bundy [2005] NSWCA 419 (at [55]) per Basten JA (Handley JA and Hunt AJA agreeing); Maricic v Dalma Formwork (Australia) Pty Ltd & Anor [2006] NSWCA 174 (at [70]) per Basten JA (Beazley and Ipp JJA agreeing). 165 Accordingly the primary judge ought to have entered a verdict and judgment against Stojan and the Council respectively for the full amount of the plaintiff's damages. 166 Further, the primary judge dismissed both cross-claims. However the apportionment exercise in which his Honour engaged as between Stojan and the Council was undertaken as a result of the cross-claims, in exercise of his powers pursuant to s 5(2) of the 1946 Act. 167 At the conclusion of the hearing the Court gave the parties leave to put on any amended notices of appeal to regularise their cross-appeals against each other on the issue of apportionment. The Council filed a further amended notice of cross-appeal complaining that the primary judge erred in dismissing the cross-claims in circumstances where Stojan and it were each found liable to the plaintiff and apportionment findings were made. Stojan did not amend its notice of appeal however, in my view, the Council's further amended notice of cross-appeal is sufficient to enable the Court to deal with that issue. 168 The parties have each had a measure of success and failure which should be reflected in the costs orders. In my view the Council should pay Stojan's costs of the apportionment issue, but otherwise there should be no order as to the costs of the appeal. 169 As to the costs of the trial, the plaintiff recovered costs on the ordinary basis until 26 July 2008, then on an indemnity basis from and including that date based on an offer of compromise which appears to have been for $320,000 plus costs. In the light of my proposed orders, the indemnity costs order cannot be sustained. The plaintiff should have her costs of the trial on the ordinary basis instead. 170 I propose the following orders be made in Stojan's appeal and the Council's cross-appeal: 1. Appeal and cross-appeal allowed. 2. Set aside the judgment of Blanch CJDC dated 27 November 2008. 3. Verdict and judgment for the plaintiff in the sum of $168,135.85. 4. Stojan and the Council to pay the plaintiff's cost of the trial on the ordinary basis. 5. Set aside the order dismissing Stojan and the Council's cross-claims. 6. Enter judgment for Stojan against the Council on Stojan's cross-claim for one-third of the verdict and judgment in favour of the plaintiff. 7. Enter judgment for the Council against Stojan on the Council's cross-claim for two-thirds of the verdict and judgment in favour of the plaintiff. 8. The Council to pay Stojan's costs of the appeal on the apportionment issue. 9. Save as set out in paragraph 8, no order as to costs.

[40]

171 BASTEN JA: The plaintiff (the respondent in this Court), Ms Kenway, tripped and fell heavily when ascending steps from a car park at a shopping centre in Alstonville in northern New South Wales. The accident occurred six years ago, in June 2003. Unfortunately, she suffered serious injuries to her neck and particularly her shoulder. 172 This was a reasonably straightforward case, once the Council had conceded that it had care, control and management of the stairs and abandoned reliance on s 45 of the Civil Liability Act 2002 (NSW). The appeal involved no issue of principle in the circumstances which have been fully explained by McColl JA. The case turned largely on the application of relevant provisions of the Civil Liability Act, the meanings of which were not in contention. The issues have been outlined by her Honour at [53]-[59] above. They can be disposed of quite shortly. 173 At the time of the accident, it was dark, but the car park, including the corner from which the stairs ascended, was adequately lit. The appellant, Stojan (No 9) Pty Ltd ("Stojan"), had control of the car park, which it managed in conjunction with the shopping centre. It provided lighting in the car park, which extended to the area from which the stairs ascended. However, it had allowed two large charity bins to be placed against one side of the staircase. The effect was to block the lighting at the point where the first flight of seven steps reached a landing and made a right angle turn. The plaintiff was approaching the landing when she entered the darkened area, letting go of the handrail in order to cross the landing diagonally and tripping on a step when she thought she had reached the landing but in fact had not. 174 The principles applicable in determining liability for negligence are referred to by McColl JA at [125]-[128] above. Stojan could and should in the exercise of reasonable care for users of the staircase at night, have directed that the bins not be placed against the staircase and, when it discovered their position, should have directed their removal. That would have been a simple cost-free step which would have remedied the danger caused by the inadequate lighting on that part of the steps which were put in shadow by the bins. It could not fairly be suggested that Stojan did not owe a duty of care to users of the car park and the stairs which it had erected in the corner of the car park. It was in breach of its duty and it was that breach which materially contributed to the accident suffered by the plaintiff. It was in this sense a "necessary condition" of the occurrence of the plaintiff's injury and it was "appropriate" for Stojan to be liable for such harm: Civil Liability Act, s 5D. 175 The responsibility of the Ballina Shire Council ("the Council") was less obvious. The Council accepted that the stairs where the plaintiff fell were on a part of the car park which formed a road reserve with respect to which the Council was the nominated roads authority. The relevant principles applicable to determining whether a roads authority has been negligent require reference to ss 5B, 5C, 5D and Part 5 of the Civil Liability Act; see also the remarks at [118] above. As a roads authority, the Council had care, control and management of the land. It thus had a responsibility to take reasonable care to ensure that the area was adequately lit for the safety of users at night, including the plaintiff. The stairs were not adequately lit, the danger could reasonably have been removed and it was the inadequate lighting which materially contributed to the plaintiff's injury, as explained above. Whether or not the Council had authority to remove the bins itself, it was not contended that it lacked the authority to direct that they be moved. It did not do so. It should have done so in the exercise of reasonable care and was therefore liable to the plaintiff. 176 As between Stojan and the Council, I agree with the assessment of the trial judge that Stojan had the greater share of responsibility. It had constructed the stairs; the stairs allowed access to and egress from the shopping centre; it provided lighting in relation to the car park and the stairs; it had a responsibility to see that the bins were not placed so as to render its lighting ineffective; it had power to direct that the bins be moved from their site and it had every opportunity to ensure that they were moved. Whether or not I would have apportioned liability precisely as did the trial judge is not the point; unless there was an error of principle, the appeal and cross-appeal with respect to apportionment should be dismissed. 177 The trial judge did not primarily rely upon the factors noted above, but upon the terms of the "safety audit letter": see [32] above. This letter was not in terms addressed to any risk of injury to pedestrians using the steps after dark, arising from the fact that visibility was poor with respect to the position of the steps. In any event, sending the letter to Stojan did not of itself exonerate the Council from responding to such risks as may have been identified in relation to land over which it had a power of care, control and management. Error having thus been demonstrated, it is appropriate for this Court to reconsider the apportionment for itself. Attribution of only 20% of the liability to the Council involved an assessment that the Council's liability was minimal. The Council's responsibility was not minimal, but lower than that of Stojan. I agree with the assessment made by McColl JA that liability should be apportioned as to two-thirds in respect of Stojan and as to one-third in respect of the Council: see [162] above. 178 I agree with McColl JA (at [148]-[154] above), that the plaintiff failed to take reasonable care for her own safety and therefore was contributorily negligent. I agree that the judgment should be reduced by 50% on that account. 179 The judgment entered by the trial judge was technically erroneous, as McColl JA has explained. Accordingly, I agree with her Honour's proposed orders 1-6. 180 It is appropriate to treat the costs as divisible between three broad issues, namely, (1) the liability of the appellant and cross-appellant to the plaintiff; (2) the apportionment of responsibility between the appellant and the cross-appellant, and (3) the contributory negligence of the plaintiff. The appellant and cross-appellant were unsuccessful on the first issue and should pay the plaintiff's costs on that issue. The plaintiff was unsuccessful on the third issue and should pay one set of the appellants' costs on that issue. On the question of apportionment, Stojan was partly successful and the Council should pay Stojan's costs on that issue. I agree with the costs orders proposed by McColl JA.

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Judgment (41 paragraphs)

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Cases Cited (74)