Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Hungry Jack's Pty Ltd v Fourtounas [2020] NSWCA 325 Hearing dates: 10 December 2020 Decision date: 10 December 2020 Before: Basten JA at [1]; White JA at [18] Decision: (1) Dismiss the summons seeking leave to appeal dated 27 August 2020. (2) Direct the applicant to pay the respondent's costs in this Court. Catchwords: PRACTICE AND PROCEDURE – leave to appeal – failure to address defence – absence of factual findings supporting defence – whether issue of principle raised – whether defence more than merely arguable TORTS – duty to warn – immunity from liability if risk "obvious" – whether immunity limited to verbal risk warnings – application of Civil Liability Act 2002 (NSW), ss 5F, 5H Legislation Cited: Civil Liability Act 2002 (NSW), ss 5F, 5H Civil Procedure Act 2005 (NSW), Pt 6 District Court Act 1973 (NSW), s 127 Supreme Court Act 1970 (NSW), s 101 Cases Cited: Be Financial Pty Ltd atf Be Financial Operations Trust v Das [2012] NSWCA 184 Coffs Harbour City Council v Polglase [2020] NSWCA 265 Coulter v The Queen (1988) 164 CLR 350; [1988] HCA 3. Council of the City of Sydney v Bishop [2019] NSWCA 157 Ghantous v Hawkesbury City Council (2001) 206 CLR 512; [2001] HCA 29 Ratewave Pty Limited v BJ Illingby [2017] NSWCA 103 Category: Procedural and other rulings Parties: Hungry Jack's Pty Ltd (Applicant) Sylvia Fourtounas (Respondent) Representation: Counsel: Mr D A Lloyd SC / Ms S Andrews (Applicant) Mr R Sheldon SC / Mr E P Anderson (Respondent) Solicitors: Gillis Delaney Lawyers (Applicant) Gerard Malouf & Partners (Respondent) File Number(s): 2020/177378 Decision under appeal Court or tribunal: District Court Jurisdiction: Civil Date of Decision: 29 May 2020 Before: Norton SC DCJ File Number(s): 2019/46773 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. BASTEN JA: On 21 September 2017 Sylvia Fourtounas (the plaintiff) tripped over a concrete wheel-stop in the car park of Hungry Jack's at Granville. She suffered injuries for which she claimed damages in proceedings brought in the District Court. On 29 May 2020 Norton SC DCJ gave judgment in favour of the plaintiff in the sum of $35,800. The defendant, Hungry Jack's Pty Ltd, has filed a summons seeking leave to appeal. There is no appeal as of right from the judgment, being a final judgment in an amount less than $100,000: District Court Act 1973 (NSW), s 127(2)(c). (It is convenient to refer to Hungry Jack's Pty Ltd as "the applicant".) 2. There was no dispute at trial that, as the occupier of the premises, the applicant owed persons coming onto the premises a duty to take reasonable care to avoid foreseeable risks of injury. Although in the pleadings the plaintiff identified 20 particulars of negligent failure on the part of the applicant, the case run at trial turned entirely upon whether the applicant was at fault in failing to paint a wheel-stop, so as to distinguish it from the surrounding surface of the car park, or affix some form of reflective tape to it. 3. The applicant sought to answer that case in a number of ways, alleging that (i) there was no hazard for a person taking reasonable care for her own safety; (ii) there was no duty to warn of the risk because the wheel-stop was in any event an obvious risk; (iii) even if the wheel-stop had been painted, that would not have prevented the accident, and (iv) if there were negligence, the plaintiff was 50% contributorily negligent. 4. In support of the application for leave to appeal, the applicant focused upon the failure of the trial judge to engage with a specific pleaded defence, namely that to require it to make the wheel-stop more readily distinguishable from the surrounding surface of the car park was in substance a complaint of breach of a duty to warn. The applicant contended that it had no duty of care to warn of an "obvious risk", an immunity provided by s 5H(1) of the Civil Liability Act 2002 (NSW). Accordingly, in failing to determine whether or not the wheel-stop constituted an obvious risk, the judge failed to rule on the defence. It was necessary to determine whether the risk was "obvious", in the sense that it would have been obvious to a reasonable person in the position of the plaintiff, pursuant to s 5F(1) of the Act. A risk that is patent or a matter of common knowledge is one which is relevantly an obvious risk: s 5F(2). The presence of wheel-stops in car parks is both patent and well known. 5. It is true that the judge failed to deal with the elements of the pleaded defence. Having identified the relevant duty of care and the nature of the risk, having found a breach of duty, and that the plaintiff's trip and fall was causally related to the failure to highlight the presence of the wheel-stops, the judge then turned to the question of "obvious risk". Having summarised the key elements in ss 5F and 5H of the Civil Liability Act, she continued: "[148] The Statement of Claim contained as a particular of negligence an allegation of failure to warn of the presence of the wheel stop, and a failing to display obvious notices advising of the presence of the wheel stop. [149] Mr Anderson [counsel for the plaintiff] did not address on these particulars and the issue in the case was whether the wheel stop should have been painted or marked with reflective tape. The attaching of tape and/or painting of the wheel stops would on the balance of probabilities have alerted the plaintiff to the existence of the wheel stops and the failure to carry out that action is not a failure to warn of the existence of untreated wheel stops." The judge then moved on to the separate issue of contributory negligence. 1. The approach of the trial judge with respect to the operation of s 5H revealed error. A case with a similar factual background was Council of the City of Sydney v Bishop. [1] As explained by Macfarlan JA: "[13] By the conclusion of the hearing at first instance, the respondent's sole contention as to breach of duty was … that a reasonable person in the appellant's position would have applied a reflective yellow strip to the top of the kerb in question, to draw attention to the change in level between the pedestrian laneway and the footpath. … … [15] Regard is to be had to the provisions of the Civil Liability Act 2002 (NSW) in determining whether the appellant is liable to the respondent. … … [28] In my view the risk of a person such as the respondent tripping on the kerb was an obvious one for the purposes of s 5H of the Civil Liability Act. As a consequence the appellant did not owe a duty of care to warn the respondent of it. As in Ghantous v Hawkesbury City Council, [2] there was a 'discernible difference' between the kerb and the lower level and '[t]here was no concealment of the difference in height. It was plain to be seen'. Further, … occupiers are entitled to assume that people will take care not to trip on the multitude of obstacles, both large and small, that are likely to be in their paths in walking from one place to another. Pedestrians are not entitled to assume that they are traversing 'a level playing field' (ibid at [355])." I relevantly agreed with Macfarlan JA; [3] Brereton JA, in dissent as to the outcome, adopted the same approach to the issues of principle. [4] 1. It may be accepted for the purposes of this application, that a failure to flag a risk by using, say, yellow paint on the wheel-stops, was a failure to warn. The defence was therefore engaged. It was necessary to determine whether the statutory immunity applied. 2. In response the plaintiff submitted that there was only passing reference to this issue in submissions. [5] Although the discussion was brief, s 5H was expressly addressed and the judge was taken to the relevant passage in the judgment of Macfarlan JA in Bishop. Further, much of the applicant's case on breach was directed to the obviousness of the risk, including by reference to principles stated in Ghantous, referred to in Bishop. 3. The existence of error is not, however, sufficient to obtain a grant of leave to appeal; more is required than identification of error on the part of the trial judge, even if it can be said that the error is reasonably clear. Generally, the court will also need to be satisfied that there is a matter of some public importance engaged and that the costs of further litigation are not disproportionate to the amount in issue. Further, it should be established that, to leave any putative error uncorrected, would give rise to a substantial miscarriage of justice. [6] 4. Leave may be required in a range of circumstances, examples of which are found in s 127(2) of the District Court Act; others may be found in s 101(2) of the Supreme Court Act 1970 (NSW). The factors relevant to a grant of leave may differ depending upon the reason for the requirement. Where the litigation involves a claim for damages and the requirement for leave is based on the fact that the amount in dispute is below a specified threshold, the extent that the amount falls below the threshold is relevant. In this case it is well below the threshold, being little more than a third of the specified amount. 5. In such cases, the concern that the costs of an appeal will be disproportionate to the amount at stake looms large. Part 6 of the Civil Procedure Act 2005 (NSW) requires that such matters be considered. The cost of an appeal in the present case may not (as is sometimes the case) be expected to exceed the amount in dispute, but the differential will not be large. There is also an institutional concern that the time of three judges not be consumed in dealing with small claims, absent a clear justification, such as maintaining the regularity of the administration of justice. [7] 6. In some cases, there will be factors which diminish the significance of the threshold. For example, the real issue may involve individual liberty, or the amount may have an elevated significance for the applicant for leave. Those factors do not apply here. 7. In other cases, an issue of public importance may allow the Court to look beyond the interests of the immediate parties. Although the applicant submitted that there was an issue of principle as to whether the duty to warn referred to in s 5H is confined to oral or written warnings, or includes conduct, such as painting a wheel-stop or obstacle, that issue is not raised in the present application: the correct approach to the operation of ss 5H and 5F of the Civil Liability Act has been established in judgments of this Court, including Bishop, referred to above. [8] In fact, the applicant relies upon, rather than challenges, that approach. 8. Importantly, conceding likely error, it is by no means clear that the error has led to a material injustice to the applicant. As counsel accepted, it would remain necessary on an appeal for the applicant to establish that the unpainted wheel-stop created an "obvious risk". The reasons for doubting the likelihood of this outcome may be briefly stated. 9. First, the concrete wheel-stops, though common-place in car parks, are not necessarily readily apparent to pedestrians, even those who have driven their cars into a car park. Secondly, although a photo of the car park taken without cars in the relevant places permits a clear view of the wheel-stops, their presence is by no means so clear when there is a car parked against the wheel-stop, especially if it is in the shadow of the vehicle (although that was not the case on the morning in question). Thirdly, there appears to have been no clear pathway from the car park into the restaurant, other than walking between parked cars, or parking spaces. In short, there would have been a large question as to whether, if the correct test had been applied, the defence would have been upheld. The judge had, albeit in dealing with the question of breach and not by reference to the language of s 5F, effectively rejected the applicant's case on obvious risk. [9] The contrary view may have been arguable, but that does not engage the higher standard required for a grant of leave to appeal. [10] Other challenges to the reasoning of the trial judge did no more than raise an arguable case of error on matters of evaluative judgment; that standard would not suffice to for a grant of leave to appeal. 10. Accordingly, given the small amount of damages in issue, there is no sufficient basis to grant leave to appeal from the finding of liability. 11. The summons seeking leave to appeal dated 27 August 2020 should be dismissed. The applicant must pay the respondent's costs in this Court. 12. WHITE JA: I agree with Basten JA. ********** Endnotes 1. [2019] NSWCA 157. 2. (2001) 206 CLR 512; [2001] HCA 29. 3. Bishop at [10]. 4. Bishop at [49]. 5. Tcpt, 08/05/20, p 217(5). 6. Be Financial Pty Ltd atf Be Financial Operations Trust v Das [2012] NSWCA 184 at [32]-[33], [36]. 7. Coulter v The Queen (1988) 164 CLR 350, 356 (Mason CJ, Wilson and Brennan JJ); [1988] HCA 3. 8. See Ratewave Pty Limited v BJ Illingby [2017] NSWCA 103 at [66] (Meagher JA, Macfarlan JA agreeing) and [81] (Fagan J dissenting as to outcome); see also Coffs Harbour City Council v Polglase [2020] NSWCA 265 at [111] (for example of a pictogram). 9. Primary judgment at [117], [121]. 10. Be Financial at [33]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 December 2020