In the recent case of Whitton v Dexus Funds Management Limited [2019] NSWDC 579, Ms Whitton failed to establish liability against an operator of a shopping centre in New South Wales after she was struck from behind by a mobility scooter while shopping.

Facts

On 17 July 2016, Ms Whitton was coming out of an amenities corridor at the shopping complex when she was struck by an unregistered mobility scooter that was travelling along the main thoroughfare. Ms Whitton alleged that a shopfront hoarding restricted her view when entering the main thoroughfare from the amenities corridor.

Ms Whitton’s argument and supportive expert evidence

Ms Whitton argued that the operator of the shopping centre:

  • owed her a duty of care as a lawful entrant to the shopping centre complex
  • had breached that duty of care by failing to undertake a proper safety management plan that considered the potential risks relating to mobility scooters in shopping centres.

Ms Whitton obtained an expert liability report from Mr David Dubos in support of her claim. Mr Dubos outlined a range of reasonable alternatives that he said were available to the managers of the shopping centre that, if implemented, could have prevented the accident. These alternatives included:

  • erecting clear signage showing that motorised mobility scooters should not have operated in the shopping centre at more than 3kph
  • placing safety warning signage at each end of the protruding hoarding
  • installing a convex mirror positioned on the left side of the exit to the amenities corridor.

The Court’s findings

The Court ultimately found in favour of the operator of the shopping centre. The Court explained that it was obvious to anyone exiting the amenities corridor that they were approaching a blind corner and had to exercise care for their own safety. The Court drew parallels between persons exiting an amenities corridor with persons exiting normal shop fronts where there is not a clear view due to the nature of the exit or goods displayed in shop windows.

The Court accepted it was foreseeable that a patron of the shopping centre might be struck and injured by a mobility scooter in the shopping centre. However, the Court determined that Ms Whitton failed to establish the risk of a patron being injured by a mobility scooter was ‘not insignificant’. In reaching this conclusion, the Court noted the following:

  • The operator of the shopping centre was entitled to expect that users of the centre would exercise reasonable care for their own safety.
  • There was no evidence that the driver of the mobility scooter was a dangerous or potentially dangerous driver or was driving erratically before the incident.
  • The blind corners in question were obvious.
  • Placing signs or mirrors at all exits or entrances where there were blind corners or obscured vision would impose a significant and unreasonable and costly burden on shop owners or lessees and shopping centre owners.

The Court determined a reasonable person in the position of the operator of the shopping centre would not have taken the precautions suggested by Ms Whitton’s expert. Accordingly, it was held the operator of the shopping centre did not breach its duty of care to Ms Whitton.

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