The operator of a car park has not been found liable for injuries allegedly sustained by the Plaintiff when she was struck by a descending boom gate in the car park.  The court found the car park operator was not required to have an assigned walkway for pedestrians adjacent to the boom gate, and the court was not persuaded a descending boom gate which is designed to rise when coming into contact with an object/person could have injured the Claimant as alleged.  The judgment was handed down in Livsey v Australian National Car Parks Pty Ltd [2014] NSWDC 232.

FACTS

The Plaintiff alleged she had no recollection of her accident, or entering the car park.  When entering the car park she was the driver of the vehicle.  She also had a passenger with her, and the passenger was walking near her at the time she was struck.  The Claimant indicated she did not even realise she was struck, and she was advised by a friend she was struck by the boom gate as they were leaving the car park. 

Evidence was given by the car park operators that the boom gate is designed to rise automatically on contact with an object/person.  The operator gave evidence that he had been struck by the boom gate on several occasions, and was not injured.  On all of these occasions, the boom gate rose when coming into contact with him. 

As a result of the accident the Claimant alleges she sustained an injury to her neck, numbness in her hands, incontinence, migraines and memory problems.  However, the Claimant did not provide any medical evidence at trial indicating the numbness in her hands or incontinence could be related to the accident. 

On the evening of the accident the Claimant attended a hospital.  A CT scan was undertaken which did not identify any damage to her cervical spine.  There was no evidence of any bleeding, fracture or subluxation. 

ISSUES

The New South Wales District Court addressed the following issues:

  • Whether there was any breach of a duty of care, and in particular whether reasonable precautions could have been taken to prevent the Claimant’s accident;
  • Whether a lowering boom gate was an obvious risk.

FINDINGS

There was no evidence of any defect with the boom gate.  The Claimant alleged that a separate walkway should have been delegated in an area adjacent to the boom gate so that pedestrians did not walk underneath the boom gate.  However, Taylor SC DCJ was not persuaded that precaution was a reasonable response to the risk.  Taylor SC DCJ stated:

“[23] Ms Livsey submits that part of the exit lane for cars should have been diverted exclusively to pedestrian usage.  Yet this would result in an obvious danger, bringing cars and pedestrians into closer proximity.  It would also leave pedestrians in closer proximity to the boom gates.  Accordingly, it would not reduce but rather tend to increase the risk of contact with the boom gate. 

[28] In my view, Ms Livsey has not established any negligence by National Car Parks since there was no malfunction in the boom gates operation.  The primary claim for liability was based on the car park arrangement, but there is no evidence that National Car Parks owned the site or had the capacity to make changes to the layout.  In any event, I do not find that there is any negligence in the layout of the site.” 

In terms of the risk of harm being an “obvious risk” it was found:

“[15] Assuming, in the present case that the lowering boom gate constituted a risk of harm, then the risk of contact with a lowering boom gate was obvious to a reasonable person and thus Ms Livsey is presumed to be aware of it (under section 5G(1) [of the New South Wales CLA]).  Because it was an obvious risk, National Car Parks did not owe her a duty to warn of it, pursuant to section 5H(1)

[16] Further, I was unpersuaded that Ms Livsey had proved that she was unaware of the risk.  She was not aided by her poor memory.  She must have noted the boom gate’s presence when she entered and must have been aware of the raising and the lowering of the boom gate, as was her friend, Ms MacDonnell.  That she was in close proximity to the boom gate immediately before it struck her is insufficient to persuade me that she was unaware of the risk, bearing in mind the provision of section 5G(2).

As it was found the risk was “obvious” there was no obligation on the part of the car park operator to warn the Plaintiff of the risk. 

Further, the court was not persuaded the alleged incident could have brought about the injuries the Plaintiff allegedly sustained:

"[31] Although the risk of contact with the boom gates is foreseeable, it is difficult to identify a risk of harm – or a not insignificant risk of harm – if the boom gate rises upon contact.  Contact is not sufficient for harm.  Mr Kovalento’s experiences indicate that without more evidence I should not accept that the boom gate is capable of causing harm.  Apart from the limited evidence of Ms Livsey, there is no evidence that the boom gate descends with such force as to cause injury

[32] Nor do I find that a reasonable person would take the precaution of installing another pedestrian walkway close to the vehicular exit under section 5B(1)(c) and section 5B(2) of the act.  This would involve the installation of another walkway parallel to and in close proximity to an existing pedestrian walkway, thus involving significant costs with little utility in reducing the risk of harm or in pedestrian walking distance.” 

IMPLICATIONS

A pedestrian is obviously under an obligation to take reasonable precautions for their own safety when walking in a public place.  This includes keeping a look out for overhead hazards. 

It appears from the judgment the court did not find the Plaintiff a persuasive witness.  Her inability to recall the accident, and the evidence that the Claimant was exaggerating the extent of any injuries sustained did not bode well for her. 

It appears the set up in the car park was the type of set up that is usually encountered.  The court was not persuaded the car park operators were required to make any alterations to the layout in those circumstances. 

It does not appear in the circumstances of this case the court was persuaded the car park operators should be held liable for the Claimant’s accident when she failed to avoid a risk pedestrians avoid on a daily basis by exercising reasonable care for their own safety.  Where a Plaintiff alleges the cause of their accident was the result of a set up or system commonly encountered, they will usually need to persuade a court there was something additionally unique or additionally hazardous to establish liability.  It does not appear the court was presented with any such evidence in this case.