Supreme Court of New South Wales - Court of Appeal

Transcription

1 1 of 33 7/12/2009 5:00 PM [Home] [Databases] [WorldLII] [Search] [Feedback] Supreme Court of New South Wales - Court of Appeal You are here: AustLII >> Databases >> Supreme Court of New South Wales - Court of Appeal >> 2009 >> [2009] NSWCA 364 [Database Search] [Name Search] [Recent Decisions] [Noteup] [Download] [Help] Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364 (12 November 2009) Last Updated: 16 November 2009 NEW SOUTH WALES COURT OF APPEAL CITATION: Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364 FILE NUMBER(S): of 2008 HEARING DATE(S): 25 August 2009 JUDGMENT DATE: 12 November 2009 PARTIES: Stojan (No 9) Pty Ltd - Appellant Carolyn Adel Kenway - First Respondent Ballina Shire Council - Second Respondent JUDGMENT OF: Ipp JA McColl JA Basten JA LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 84/06 LOWER COURT JUDICIAL OFFICER: Blanch CJ DC LOWER COURT DATE OF DECISION: 27 November 2008

2 2 of 33 7/12/2009 5:00 PM COUNSEL: A Katzmann SC with S Kettle for the Appellant D E Grieve QC with G Radburn for the First Respondent S Glascott for the Second Respondent SOLICITORS: Thompson Cooper Lawyers - Appellant Bourke Love McCartney Young - First Respondent DLA Phillips Fox - Second Respondent CATCHWORDS: TORTS negligence dangerous premises duty of care plaintiff fell on stairs leading from shopping plaza car park to council park stairs constructed on land plaza had permission to use stairs one of several exits from car park whether owner of plaza occupier of stairs TORTS negligence duty of care of occupiers and roads authority HIGHWAYS definitions whether council roads authority in relation to stairs whether stairs were or formed part of a public road Roads Act 1993 (NSW), s 249 whether installation of light over public road constitutes road work TORTS negligence breach of duty whether council and owner of plaza breached duty of care to plaintiff having regard to plaintiff s obligation to take reasonable care for own safety Civil Liability Act 2002 (NSW), s 5B TORTS negligence causation and contributory negligence plaintiff failed to use alternative exits to the car park plaintiff let go of handrail on stairs and charged forward knowing lighting was inadequate Civil Liability Act 2002 (NSW), s 5D, s 5R DAMAGES apportionment concurrent tortfeasors whether apportionment by primary judge unreasonable or plainly unjust JUDGMENTS AND ORDERS recovery against concurrent tortfeasors plaintiff entitled to judgment for full amount against each WORDS AND PHRASES public road roads authority road work footway LEGISLATION CITED: Civil Liability Act 2002 (NSW) Law Reform (Miscellaneous Provisions) Act 1946 (NSW) Motor Vehicles (Third Party Insurance) Act 1942 (NSW) Roads Act 1993 (NSW) Supreme Court Act 1970 (NSW) Transport Administration Act 1988 (NSW) CATEGORY: Principal judgment CASES CITED: 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] EngR 2; (1774) 1 Cowp 63 (at 65); [1774] EngR 2; 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

3 3 of 33 7/12/2009 5:00 PM 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 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 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 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 Western Suburbs Hospital v Currie (1987) 9 NSWLR 511 Wheat v E Lacon & Co Ltd [1966] UKHL 1; [1966] AC 552 Wilkinson v Law Courts [2001] NSWCA 196 Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 TEXTS CITED: DECISION: 1. Appeal and cross-appeal allowed. 2. Set aside the judgment of Blanch CJDC dated 27 November Verdict and judgment for the plaintiff in the sum of $168, 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

4 4 of 33 7/12/2009 5:00 PM out in paragraph 8, no order as to costs. JUDGMENT: IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA No: 40413/08 DC No: 84/06 Ipp JA McColl JA Basten JA Thursday 12 November 2009 Stojan (No 9) Pty Ltd v Carolyn Adel Kenway & Anor 1 IPP JA: I agree with McColl JA. Judgment 2 McCOLL JA: Stojan (No 9) Pty Ltd ( Stojan ) appeals from a judgment of his Honour Justice Blanch, Chief Judge of the District Court, in which his Honour found that Stojan had breached its duty of care to Carolyn Adel Kenway (the plaintiff ). The plaintiff was injured when she fell on concrete stairs she was ascending as she left Stojan s premises. His Honour also found that Ballina Shire Council (the Council ) which owned the land on which the stairs were constructed had breached its duty of care to the plaintiff. He awarded the plaintiff damages of $336,271.70, apportioning liability as to 80 per cent against Stojan and 20 per cent against the Council: 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). 3 Stojan appeals, and the Council cross appeals, on the issue of liability. Both also appeal against the primary judge s failure to find the plaintiff guilty of contributory negligence. Stojan also challenges the primary judge s apportionment of liability. 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

5 5 of 33 7/12/2009 5:00 PM 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)

6 6 of 33 7/12/2009 5:00 PM 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? A. No I don t think so. No. Q. Why s that? 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 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

7 7 of 33 7/12/2009 5:00 PM 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 ). 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 ), 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. Pedestrians short-cut through the park and grounds of Crawford House between residential areas, various parts of the main street and the shopping centre. This creates security issues for historic curtilage at Crawford House The Plan described the park as being used annually for Anzac Ceremonies which attract large crowds. 21 The Council submitted that the evidence disclosed that the lane on either side of the stairs was used by vehicles and pedestrians, and the stairs were used by pedestrians. It contended that the lane, or at least that part of the lane 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 as such the lane is or forms part of a public

8 8 of 33 7/12/2009 5:00 PM road pursuant to s 249 Roads Act. 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

9 9 of 33 7/12/2009 5:00 PM 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: The safety audit 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. Q. Look I think the answer to my question is no, is that correct, you didn't consider it? A. No because it wouldn't have been part of my job to do that. 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....

10 10 of 33 7/12/2009 5:00 PM Consider removing the clothing bins from the stairway as they provide opportunities for concealment, allowing better entrance/exit vision. 33 On 26 March 2002, the Group Manager for Civil Services for the Council, John Truman, responded to Senior Constable Hogan, relevantly stating: I am limited by funds with respect to lighting requests, and a cost effective design will need to be undertaken for estimating purposes. The works will then be submitted for budget consideration purposes.... The relocation of the clothing bins at the eastern car park stairway has been forwarded to the management of the Alstonville Plaza for action. 34 On 27 March 2002 the Council forwarded the safety audit letter to the Plaza Management with a covering letter stating Recommendations refer to placement of rubbish bins and removal of clothing bins from/adjacent the eastern car park. It also stated that the Council had indicated to the New South Wales Police that these matters would be referred to Alstonville Plaza Management. 35 Mr Campbell said that although he received the safety audit correspondence forwarded by the Council, he did not take any action in respect of the lighting matters it raised because he did not believe that any of the items that were referred to were on what [he] believed is [indistinct, but I would infer to be Stojan s] property. In relation to the clothing bins, he gave evidence that he did not take any action to remove the bins because he did not feel it was [Stojan s] prerogative. The Primary Judgment 36 The primary judge delivered an ex tempore judgment. He found: The shopping plaza was built in 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 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

11 11 of 33 7/12/2009 5:00 PM 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

12 12 of 33 7/12/2009 5:00 PM 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

13 13 of 33 7/12/2009 5:00 PM 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 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 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 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

14 14 of 33 7/12/2009 5:00 PM 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. 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 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

15 15 of 33 7/12/2009 5:00 PM 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 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

16 16 of 33 7/12/2009 5:00 PM 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 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