Jones Lang LaSalle (NSW) Pty Ltd v Taouk  NSWCA 342
Judgment date: 24 October 2012
|Jurisdiction:||NSW Court of Appeal 1|
- The occupier of a car park owes a duty of care to those who use the car park to avoid foreseeable risks of injury such as an oil spillage.
- The 3 pre-conditions in s 5B(1) of the Civil Liability Act 2002 (CLA) must be satisfied before a liability arises for failing to take precautions against a foreseeable risk of harm.
- Where there has been an escape of liquid from a grease trap under the control of the property manager, the primary liability will fall on the party primarily responsible for the safety of those who use the car park.
On the evening of 5 March 2005, Mr Taouk (the plaintiff) sustained injury to his left knee when he slipped and fell on grease and oil on level 2 of the car park in Australia Square Tower in Sydney (the building). That grease and oil had escaped from a container inside a locked grease trap room in the car park. The grease trap collected waste from commercial premises in the building.
Jones Lang LaSalle (NSW) Pty Ltd (JLL) provided property management services to the owners of the building. Wilson Parking Australia 1992 Pty Ltd trading as Wilson Parking (Wilson) managed and operated the 3-level car park in the building. Access to the door to the grease trap room was obtained via level 2 of the car park, however, Wilson did not have keys to that door and the room itself was not part of the car park area managed and operated by Wilson. It was, however, together with the car park, part of the area in respect of which JLL provided property management services to the owners.
In June 2007, the plaintiff commenced proceedings in the District Court against Wilson. By the hearing in January 2010, the plaintiff had joined JLL as a defendant and claims against 2 other defendants were discontinued. There were cross-claims filed by each of Wilson and JLL claiming contribution from the other as a joint tortfeasor.
In a judgment delivered on 6 May 2011, Delaney DCJ (the primary judge) entered judgment against Wilson and JLL for $219,327 and apportioned liability between them so as to require JLL to contribute 30% and Wilson to contribute 70%.
The primary judge found that the overflow of grease and oil onto the car park surface happened sometime after the plaintiff arrived at the car park and before he returned to his car. That finding was not contested on appeal. The primary judge also found on the available evidence that it was more likely than not that the spillage began not less than one hour before he returned to the vehicle. This was interpreted on appeal as being the time when the grease or oil first emerged from underneath the door and flowed over the car park floor.
In the plaintiff's case against Wilson, the primary judge found that a "reasonable regime of inspection" for a car park operator on a Saturday night would have involved an inspection of the car park for hazards at least once every 30 minutes between 5.00 pm and 12.30 am. The primary judge held that Wilson was in breach of its duty of care in failing to have a system requiring such inspections. Because of the finding that the spillage was first able to be seen on inspection at least one hour before the plaintiff returned to the vehicle, it followed that he would not have been injured had there been a system which resulted in inspections at least once every 30 minutes or so.
In the plaintiff's case against JLL, the primary judge found that at the time of the accident there was an irregularity in the operation of an alarm system designed to warn when the grease and oil in the grease trap container had reached a particular level. There was a float inside the tank which held the grease and oil. When the fluid reached a certain level, causing the float to rise, a mercury switch would close. When the switch was closed, a signal was sent to what was described as the "building management control system". If that signal was sent for a period of more than 10 seconds, an alarm was triggered and that alarm would register at 4 places: the security desk in the building; the building manager's office; a computer server on level 19 of the building; and in the computer system of the mechanical contractors for the building.
The primary judge found that there was an irregularity event in the operation of this system from a record described as an "Object Change of State Report" (the report) 8 days before the accident. The primary judge found that the report should have alerted JLL to a problem with the alarm system and caused JLL to have established a further regime of inspection after the report and before the next grease trap service, with at least hourly inspections of the grease trap on a Saturday night. The primary judge found that the failure by JLL to take that additional precaution was a breach of duty on the part of JLL and hourly inspections would have detected the presence of the spill before the plaintiff sustained his injury.
Court of Appeal
The following issues arose in JLL's appeal:
- Whether the primary judge erred in finding that as at the date of the report there was an irregularity in the operation of the grease trap alarm system which alerted JLL to a problem with that system, and required that JLL institute hourly inspections on Saturday nights.
- Whether the primary judge erred in finding that the implementation of such a system would have prevented the plaintiff's accident. Specifically, whether the primary judge erred in finding that the spillage began (in the sense that it was first able to be seen) not less than one hour before the plaintiff returned to his car.
The following issues arose in Wilson's appeal:
- Whether the primary judge erred in concluding that Wilson's duty of care in relation to the risk of injuries due to spillages on the car park surface required that an inspection of the surface for such hazards occur at least every 30 minutes on a Saturday night after 5.00 pm.
- Whether the primary judge erred in concluding that the carrying out of such inspections would have prevented the plaintiff's accident.
- Whether the primary judge erred in apportioning liability between Wilsonand JLL.
The finding as to an irregularity with the grease trap alarm system
The court held the primary judge was justified in concluding on the evidence that there was an irregularity in the operation of the alarm system. It was also noted JLL accepted in argument that if it was on notice of that problem, its duty of care required that it check the alarm system and fix it if it was faulty and take some other step in the interim to protect against harm from an overflow. There was no suggestion in the evidence that JLL had communicated to Wilson the fact of a problem with the alarm, made arrangements for joint inspections on a regular basis, or satisfied itself that Wilson was making such inspections. It was also found that the evidence did not show that JLL had satisfied itself that the level of grease was such that there was no risk that it could overflow.
The court found JLL accepted that one thing it could have done was to rely upon inspections being conducted by Wilson. It also submitted that it would have been entitled to rely on whatever inspections Wilson "should have been doing". The court found that, if Wilson was not to JLL's knowledge undertaking such inspections, JLL was in breach of its duty of care in the absence of having satisfied itself that there was no risk that the grease trap could overflow in not inspecting it on an hourly basis. The court therefore found that the primary judge did not err in holding that JLL had breached its duty of care.
The finding as to when the spillage began
It was unchallenged that the spillage started at some time after 8.00 pm. The court referred to the decision of Strong v Woolworths Ltd 2 and found the probability was that the spillage commenced between 8.00 pm and 10.00 pm, rather than after 10.00 pm and before about 10.45 pm. The court found that it followed that a system which required inspections by JLL at least once every hour would have prevented the plaintiff's accident was justified on the evidence.
Did Wilson's duty of care require inspections every 30 minutes?
Wilson had argued on appeal that the primary judge erred when identifying the risk of harm and finding that it was foreseeable (s 5B(1)(a) CLA).
The court found that the primary judge correctly formulated Wilson's duty as occupier of the car park to the class of persons of which the plaintiff was a member, namely users of the car park, as being to take reasonable care to avoid foreseeable risk of injury to them. It was also found that the primary judge addressed the 3 pre-conditions which s 5B(1) says must be satisfied before a liability arises for failing to take precautions against a foreseeable risk of harm.
Wilson submitted that the primary judge erred in taking account of the risk of harm due to any spillage rather than considering only the risk of harm due to an overflow from the grease trap or some other service utility. The court found that the primary judge did not err in identifying the risk of harm or finding it was foreseeable.
The court held that the fact that Wilson had a cleanup kit available for spillages, and the fact that the on-duty car park attendant was expected to make physical inspections of the car park at regular intervals for purposes which included identifying spillages or other hazards, demonstrated the correctness of the finding that the risk was not insignificant.
Wilson also submitted that the primary judge erred in finding that a reasonable person in Wilson's position would have required inspections of the car park surface every 30 minutes on a Saturday night between 5.00 pm and 12.30 pm. In response to Wilson's argument, the plaintiff contended that the primary judge should have held that a reasonable person in Wilson's position should have undertaken an inspection at least once every hour. In this regard, the plaintiff noted the evidence given at the hearing by the Development Manager from Wilson, who was responsible for managing car parks, that it was important to identify spillages as quickly as possible and do something about them for the safety of pedestrians. He also agreed that it was "not unreasonable given the number of cars in the car park on a Saturday night in March 2005 to have the car park attendant walk around level 2 once every hour".
The court held it was correct that there was no evidence which supported the primary judge's conclusion that the taking of reasonable precautions required an inspection every 30 minutes. The court held that the only evidence as to what might have been reasonable was the evidence of the Development Manager of Wilson. The court held that the primary judge did not expressly consider, as he was required to do, any of the 4 matters referred to in s 5B(2). Those matters are the probability that the harm would occur if care were not taken; the likely seriousness of the harm; the burden of taking precautions to avoid the risk of harm; and the social utility of the activity that creates the risk of harm.
The court held that none of the factors in s 5B(2) suggested that a reasonable person in Wilson's circumstances would not have undertaken hourly inspections. Whilst the likelihood of a spillage may not have been regarded as high, it nevertheless presented a risk which Wilson recognised as requiring attention at least by the carrying out of patrols involving physical inspections at regular intervals. The burden of requiring at least hourly inspections was not great in view of the fact that the operator was already required to undertake inspections; those inspections did not interfere with the efficient operation of the car park; and Wilson would not be required to commit any further resources to enable that to occur. Finally, there was no social utility involved in exposing uses of car parks to the risk of slipping and sustaining injury.
The court held that the evidence justified a conclusion that a reasonable person in Wilson's position would have required inspections of the car park surface at least once an hour on a Saturday evening, and concluded that hourly inspections of the car park surface conducted by Wilson would more probably than not have prevented the plaintiff's accident.
Apportionment of liability between Wilson and JLL
Wilson argued that, in light of the finding that JLL had "primary" responsibility for seeing that the grease trap did not overflow, the primary judge erred in finding that Wilson should bear the major responsibility for the consequences of that escape; especially in circumstances where it had not been established that Wilson knew or ought to have known that grease may escape so as to require any more stringent system of inspection than was then being employed.
The court held that this argument assumed that the breach of duty of each of JLL and Wilson was in failing to take precautions against the same risk of harm, which was not the case.
The court found that the foreseeable risk of harm which Wilson failed adequately to address was that of a user of the car park slipping or falling because of oil, grease or some other substance deposited on its surface; whereas the risk of harm which JLL failed adequately to address was that resulting from the escape of grease or oil from the grease trap. That risk included that of a user of the car park slipping on that grease or oil.
The court concluded the primary judge was correct to observe that Wilson was in a "better position" than JLL to deal with the risk of oil and grease on the car park surface. Wilson had someone working on that level of the car park who, the evidence showed, was able without difficulty to walk around and undertake a physical inspection at hourly intervals. Although the grease escaped and its escape remained undetected because of JLL's negligence, the probability is that its presence would have been seen and the plaintiff's injury avoided if Wilson had exercised reasonable care.
The court held that the primary judge's apportionment reflected the fact that Wilson, as occupier of the car park, was primarily responsible for the safety of those who used it and was best placed to deal with dangers and risks of the kind which occurred (Jones v Bartlett 3 ).
The fact the source of the spillage resulted from the negligence of a property manager in failing to properly maintain equipment under its control does not mean the primary liability will not fall on the occupier of the common area which has an overriding duty to ensure the safety of pedestrians using that area.
The duty of an occupier remains one of reasonable care for the safety of users of the area under its control to ensure that they are not exposed to any unreasonable risk of injury.
Once breach of duty is established, applying the 3 pre-conditions in s 5B(1) of the CLA, the onus is on a plaintiff to establish that the breach is causative of his or her injuries.
1 McColl, Meagher JJA and Sackville AJA
2  HCA 5
3  HCA 56
Sticky Situation for Occupier
Jones Lang LaSalle (NSW) Pty Ltd v Taouk  NSWCA 342