Upper Lachlan Shire Council v Rodgers  NSWCA 259
Judgment date: 23 August 2012
Jurisdiction: New South Wales Court of Appeal1
- Section 5B of the Civil Liability Act 2002 (the CLA)needs to be considered in determining negligence. However, this may be implicitly done by reference to how a trial is fought by competent counsel.
- Obviousness of a risk is a factor that may be taken into account when considering the response of a reasonable person.
- The standard of care required of a person who suffered harm is that of a reasonable person in the position of that person as required by s 5R of the CLA. The same principles are applied as when determining breach of duty under s 5B(1) of the CLA.
On the evening of 11 October 2008, the plaintiff (and respondent to the appeal), then aged 65, fell in a darkened car park in Crookwell NSW. The plaintiff and his wife had just had dinner at a hotel across the road. The plaintiff was not affected by alcohol. The car park was owned and operated by the Upper Lachlan Shire Council (the defendant and appellant) (the Council).
The plaintiff had parked his car at the car park earlier that evening at around dusk. Visible at that time was a wooden log lying horizontally, and which acted as a barrier to further movement by cars towards the footpath and road. The log was just below knee level.
From where the plaintiff parked his car there were two possible routes out of the car park. One was to walk in a direct line from the car to the footpath, which involved crossing the area where the log was situated. The other was to walk a slightly longer distance (a few metres) to the footpath at the point of the vehicular access to the car park.
At the time of the plaintiff's arrival there was adequate light which rendered each route safe. Accordingly, the plaintiff took the shorter direct route to the footpath, past the abovementioned log.
Upon the return of the plaintiff and his wife at approximately 8.00 pm, the car park was in total darkness. There was no lighting of the car park and the street lights, which provided illumination of the footpath, shone no light into the car park.
The plaintiff recognised the potential hazard of the darkness and told his wife to walk to the exit of the car park where there was some light and to wait there. He then set off in the direction of the car by the same route that he had taken when he left the car. Unfortunately he walked into the end of the abovementioned log, causing him to fall and injure his right knee and right shoulder.
In coming to her decision the primary judge considered, amongst other things:
- the uncontested evidence of Dr Cooke that, at most, the lighting at the point of the accident was 1% of that required pursuant to the relevant Australian Standard;
- the problems associated with the lack of lighting were exacerbated by the fact that the vision of a person walking from an area of some ambient light directly into an area of complete darkness was further impaired. This was confirmed by the uncontested evidence of the plaintiff's wife that she had to turn the car lights on in order to locate the plaintiff following the accident; and
- according to Dr Cooke, the lighting at the driveway entrance would have been better. However Dr Cooke was unable to indicate just how much light was available at that point given that he had not been requested to take measurements at this area.
Ultimately the primary judge concluded that the Council was liable for creating a situation where a log was positioned at a height that made it a substantial obstacle, and then left the area in complete darkness at a time when members of the public might be expected to park immediately adjacent to that log.
Her Honour found the defendant's submission that the plaintiff ought to have taken the slightly longer route via the vehicular access had some difficulties given that, in her view, it was reasonable that a person would have taken the shorter route in circumstances where:
"... the vehicle was parked very, very close to the roadway, only a matter of metres ..."
The primary judge concluded that the Council had breached its duty of care and that the plaintiff was not guilty of contributory negligence. Verdict was entered in favour of the plaintiff for $422,140 including $42,000 for past gratuitous care.
Court of Appeal
The appeal was brought by the Council on the grounds that the primary judge erred:
- in concluding that the Council breached its duty of care;
- in concluding that the plaintiff was not guilty of contributory negligence; and
- in awarding damages for past gratuitous care given the requirements of s 15(3) of the CLA.
Breach of Duty of Care
The Council submitted that the plaintiff was aware of the existence of the log because he had seen it when he parked the vehicle and he was aware that it was dark in that general area. Consequently, as a reasonable person, he should have taken the different, slightly longer, route via the vehicular entrance.
In addition, the Council argued that the log, or the log in the darkness, was an obvious risk within s 5F of the CLA and therefore there was no obligation to warn the plaintiff, and in coming to her decision, the primary judge demonstrated no direct engagement with s 5B of the CLA.
The unanimous decision was delivered by Allsop P, with Campbell and Barrett JJA agreeing, who noted that, whilst an engagement with the terms of s 5B is necessary, it can be implicitly done by reference to how a trial is fought by competent counsel. In the present matter, Allsop P concluded that the primary judge's approach was reasonable as a more detailed consideration of s 5B of the CLA would have led to the same conclusion, that is:
- the risk of someone tripping or falling over the log in compete darkness was foreseeable;
- the risk was plainly not insignificant as people can be injured badly in falls onto hard surfaces;
- a reasonable person would have taken precautions of either lighting or blocking access to the area where the log would have been in darkness; and
- the burden of taking the precaution of adding some lighting was not great, and no evidence had been adduced suggesting that it was.
In addition, Allsop P agreed that the evidence before the primary judge demonstrated that the route taken by the plaintiff was available and more convenient then the slightly longer route and it was readily foreseeable that people would use that route to get to their cars.
There was one qualification to the primary judge's approach which was raised by his Honour. That was the reference by the primary judge to the obviousness of a risk being irrelevant to the determination of risk. Allsop P confirmed that this approach was incorrect, and obviousness of risk is one factor which may affect the response of the reasonable person. See generally Carey v Lake Macquarie City Council 2 and Consolidated Broken Hill Ltd v Edwards3.
In respect of contributory negligence, the primary judge found that the plaintiff was walking in a cautious manner, keeping such a look out as he could knowing that the log was in the vicinity, and therefore no contributory negligence was ascribed.
Having regard to s 5R of the CLA, Allsop P noted that the assessment as to whether the plaintiff's actions constituted a choice reflecting a lack of objective care for his own safety was an evaluative one, dependent in part upon the choices available to him.
Allsop P concluded the plaintiff displayed the standard of care of the reasonable person as described in s 5R of the CLA. The primary judge's conclusion was therefore affirmed.
As noted above, the primary judge awarded a sum of $42,000 for past gratuitous assistance which equated to a little less than 2 hours per day from the date of accident to the date of judgment. In support of his claim, the plaintiff relied on a report of Ms Lauren Alach, an occupational therapist, as well as evidence elicited from the plaintiff and his wife. The evidence was that, prior to the accident, internal and external domestic duties were shared equally between the plaintiff and his wife. Following the accident the plaintiff's wife generally performed all domestic tasks.
There was conflicting opinion between the plaintiff's occupational therapist and the defendant's occupational therapist as to the number of hours of domestic assistance required each week. However, Allsop P considered their competing evidence was insufficient to destroy the evidence of the plaintiff's wife's estimate of around 2 hours a day.
Accordingly, the Council failed on all grounds of the appeal.
As Allsop P stated above, whether the plaintiff's actions constituted a choice reflecting a lack of objective care for his own safety requires evaluative consideration, dependent in part upon the choices available to him. Accordingly, this demonstrates the importance of a defendant adducing evidence to support a claim for contributory negligence4.
In addition, the importance of careful cross-examination and other supporting evidence when seeking to refute evidence of domestic assistance is clearly demonstrated, with Allsop P concluding that the cross-examination did not elicit sufficient material to refute the plaintiff's wife's estimate of gratuitous domestic assistance.
Obviousness of risk is one factor which may affect the response of the reasonable person. The question of obvious risk requires a determination of whether the defendant's conduct involved a risk of harm which would have been obvious to a reasonable person in the position of the plaintiff.
1 Allsop P, Campbell and Barrett JJA
2  NSWCA 4
3  NSWCA 380
4 See a recent example in Ghunaim v Bart  NSWCA 28.
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