The NSW District Court recently considered the liability of a shopping centre owner in a case involving a patron who tripped upon a concrete ‘wheel stop’ located in the car park. This is third decision in the past few years to consider similar accidents.
Thomas v AMP Capital Investors Limited (Unreported, District Court of New South Wales, Gibson DCJ, 2 December 2016)
Last year we reported on McCabes insurance team successfully defending a claim brought against a large shopping centre client by a patron who tripped over a cement barrier located in the car park (See - http://www.mccabes.com.au/recent-decision-car-park-trip-falls/).
The McCabes team has followed-up this result with the successful defence of a similar claim brought against another large shopping centre client by a patron who tripped over a ‘wheel stop’ barrier located in the car park.
On 8 April 2011, the plaintiff tripped over a concrete wheel stop located in the car park at Dapto Mall Shopping Centre, sustaining injuries to her shoulder and back.
Proceedings were commenced in the NSW District Court at Sydney and proceeded to a three-day hearing before Her Honour Judge Gibson.
The plaintiff alleged that the owner of the shopping centre, AMP Capital Investors Limited (AMP), was negligent and liable for her accident, as the wheel stop constituted a foreseeable hazard and should not have been placed where it was. It was also contended that there was insufficient lighting available in the car park.
The plaintiff gave evidence at trial that she had seen the wheel stop when exiting her vehicle. However, when returning to her car, there was another car pulling in to the adjacent car parking space. She was paying attention to that car when she tripped over the wheel stop.
Expert evidence was adduced during the hearing by AMP that at the time that it was installed, the location and size of the wheel stop complied with all relevant Australian Standards and applicable building codes. It was accepted that under the more recent Australian Standards, the wheel stop would be 280mm longer than is permissible.
Relevantly, the plaintiff admitted prior to hearing that at the time she fell the wheel stop had been painted bright yellow.
As to the allegation of deficient lighting, Her Honour accepted AMP’s expert evidence that the lighting was more than 20 times the minimum standard required, providing “ample lighting for the plaintiff to see her way to her car”.
Having made this finding, Her Honour summarised the plaintiff’s primary allegation of negligence as being:
“whether the size of the wheel stops contravened the relevant Australian Standards and whether they should have been placed in carspaces immediately adjacent to the pedestrian walkway where any person going off the walkway into the car park risk[ed] tripping on them.”
Her Honour noted that yellow-painted wheel stops are common place, stating:
“The problem the plaintiff encounters here is that the risk of harm the plaintiff complains about is the ‘commonplace’ (to use Dr Cooke's word) brightly coloured wheel stop, which any motorists (including the plaintiff) using the car park would be familiar with, was designed to stop motor vehicles being driven forward outside, or through, parking spots, in circumstances where pedestrians or other vehicles might suffer damage. The wheel stops function as a safety device in this regard. Their presence was obvious, by reason of the bright yellow colour of the paint and by the similarity of their position in every car space”.
Her Honour placed significant weight on the plaintiff’s admission that she knew the wheel stop was there prior to her accident. On this basis alone, Her Honour was satisfied that any risk of a pedestrian not seeing and avoiding the wheel stop at a later point in time, was insignificant.
As to the original installation of the wheel stops, it was found that AMP had acted reasonably by engaged a competent building contractor, Laing O’Rourke Australia Construction Pty Ltd who complied with the Development Consent issued by the local council, and issued a certification that the car park area, including the wheel stops, had been installed in compliance with the relevant Australian Standard. Her Honour accepted that even had there been some negligence in the installation of the wheel stops by Laing O’Rourke, AMP could not be found liable pursuant to the independent contractor defence it raised under the principles of Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161.
Her Honour concluded that the plaintiff fell because she failed to look where she was walking and this failure, rather than the position of the wheel stop, was the cause of her accident. On this basis Judgment was entered for AMP, with the plaintiff ordered to pay AMP’s costs.
Relevantly, had AMP been found liable to the plaintiff, Her Honour determined that the plaintiff’s failure to have proper regard for her own safety, by avoiding the painted wheel stop that she knew was present in the car park, warranted a “very high” reduction for contributory negligence. Taking into account the plaintiff’s own acknowledgement that she had failed to look where she was going, Her Honour considered that an assessment of 100% contributory negligence was warranted pursuant to section 5S of the Civil Liability Act 2002.
This is also a pleasing decision in light of the increasing trend in claims being brought by patrons who have tripped over concrete hobs and wheel stops in car parks. It demonstrates the importance of occupiers ensuring that these potential hazards are delineated by being painting in contrasting colour or alternative highlighting methods.
It highlights the importance of defendant’s obtaining evidence that demonstrates that these hazards complied with the relevant Australian Standards and/or applicable building codes at the time they were installed. This can be achieved through a combination of expert evidence, records of the local Council, and any certifications or compliance certificates that were obtained by the builder.
Her Honour’s finding of a 100% reduction on account of contributory negligence confirms that plaintiffs are expected to take reasonable care for their own safety particularly when faced with common place hazards such as car park wheel stops. This largely mirrors the earlier findings of the Court in Jacobe v QSR Pty Ltd.
This decision also confirms that occupiers such as shopping centre owners are entitled to rely on the expertise of wholly independent contractors who are engaged to perform specialised tasks, such as builders undertaking renovation works.
Contributor - Amy Ramsay