Julia Creek Town and Country Club v Littlejohn  QCA 16
After two liability trials and two appeals, the Queensland Court of Appeal has recently confirmed the original decision of the Trial Judge in the matter of Julia Creek Town and Country Club Inc v Littlejohn, making a finding for the Plaintiff in the sum of $160,705.68.
On 29 June 2010, Cullinane J of the Supreme Court in Townsville gave judgment to the Plaintiff in the sum of $160,705.68 for personal injuries sustained in a tripping incident at the Julia Creek Town and Country Club. Both liability and quantum had been in issue at the trial.
The Plaintiff had been travelling through Northwest Queensland when on 21 May 2004 she stopped at Julia Creek and entered the Defendant’s premises. The Plaintiff and her companions consumed a drink and then went to leave the premises when the Plaintiff tripped and fell, badly breaking her left arm.
To get to the bar, having entered the front door, the Plaintiff had walked across a polished wooden dance floor onto carpet and then onto a tiled surface which extended to the bar area. There was a slight change of level between the carpeted floor and the tiled floor, with the carpet being about 25mm lower.
While passing over this change in level from the tiles onto the carpet the Plaintiff lost her footing and fell. The Plaintiff alleged negligence against the Julia Creek Town and Country Club for, inter alia, failing to remedy the difference in levels, failing to control the glare from a nearby window and failing to provide sufficient lighting.
At trial, the Plaintiff gave evidence that her vision was affected by a strong glare coming from an uncovered window and the Court accepted the Plaintiff’s evidence, finding that in the circumstances, the Plaintiff’s ability to see the change in levels had been impaired by the glare. The Court also concluded that the existence of such a change in levels gave rise to a risk of injury, which was ultimately realised, and therefore found the Defendant to have been negligent in the circumstances.
There was covert video surveillance adduced by the Defendant suggesting that the Plaintiff should not be accepted as a witness as she was exaggerating the effects of her injuries and showing her move more freely when she was in public than when she was being assessed by specialists.
While this was accepted in part by the Trial Judge in assessing the quantum of the Plaintiff’s claim, it did not cause the Trial Judge to reject the Plaintiff’s credibility and the Court therefore accepted her evidence regarding liability.
The Defendant appealed against the Trial Judge’s findings on liability and quantum.
The main focus of the liability appeal was on the failure of the Trial Judge to adequately address the Defendant’s challenge to the plausibility of the Plaintiff’s evidence in light of two distinctly differing accounts of the accident that she had provided.
Central to this challenge was the fact that the Plaintiff’s Notice of Claim gave an entirely different account of the cause of the accident, describing the flooring in question as being wood, and also stating that she did not see the change in levels due to the fluorescent lighting being turned off. No reference was made to any glare until after the Plaintiff attended the premises around two years after the accident with her expert lighting witness.
The Court of Appeal dismissed the Defendant’s appeal on quantum however agreed that the Trial Judge’s reasoning failed to adequately deal with the liability points raised by the Defendant and therefore contained an error of law.
The Court of Appeal therefore remitted the matter to the District Court for a retrial on liability.
Second Liability Trial2
The second liability trial was heard before His Honour Baulch SC in the Townsville District Court on 15 June 2011.
The Plaintiff was extensively cross-examined on the inconsistency between her Notice of Claim Form and the case advanced at trial.
His Honour Baulch SC ultimately accepted the explanation that at the time of completing her Notice of Claim Form, the Plaintiff had only once been to the premises (on the day of the accident) and that this had only been for around half an hour. She stated that only after attending the premises again in 2006 with her expert witness did she recall the state of the flooring and the presence of the glare.
His Honour commented that he observed the Plaintiff giving evidence during the trial and accepted her as providing a straightforward account of the circumstances and he believed that her explanation for the inconsistencies were reasonable.
Referring to the duty of care owed by an occupier from Australian Safeway Stores v Zaluzna3 the Court found that:
- the premises are commercial premises;
- alcohol is served to patrons on the premises;
- visitors are welcomed at the premises;
- the area where the change in height occurs is an area frequently traversed by patrons and probably by staff;
- the area is a workplace;
- the change in height presents at an angle to what might be the usual or expected path taken by persons crossing the area;
- it would be expected that persons unfamiliar with the premises would traverse the area from time to time.
In those circumstances, the Court found that the change in height presented a hazard that required attention from the occupier and therefore confirmed the original finding of liability against the Defendant.
The Defendants again appealed the findings on liability to the Court of Appeal. This was heard on 14 February 2012.
The Defendant again argued that the Court had not adequately dealt with the creditworthiness of the Plaintiff in light of her differing accounts of the accident and the covert video surveillance. It also argued that the Trial Judge ignored the evidence of the Defendant’s lighting expert and that the Judge erred in concluding that the circumstances of the accident were reasonably foreseeable.
This appeal was dealt with very succinctly by the Court of Appeal, who concluded that there was no substance to the appeal and it was accordingly dismissed with costs.
At the time of writing, the Court of Appeal was awaiting written submissions from parties regarding the proposed terms of final Orders including costs and interest.
It would seem inevitable however that the legal costs of the claim will far outweigh the damages in what cannot be considered a large claim by any stretch of the imagination.
A copy of the decision can be found here.