New South Wales Court of Appeal CITATION: Penrith Rugby League Club Ltd trading as Cardiff Panthers v Elliot [2009] NSWCA 247 HEARING DATE(S): 31 July 2009 JUDGMENT DATE: 18 August 2009 JUDGMENT OF: Ipp JA at 1; Basten JA at 2; Sackville AJA at 3 (1) Allow the appeal and set aside the judgment and orders of the District Court made on 23 December 2008; (2) In place thereof: DECISION: (a) give judgment for the defendant, (b) order the plaintiff to pay the defendant's costs; (3) Order that the respondent pay the appellant's costs of the appeal; (4) Grant the respondent a certificate, if otherwise qualified, under the Suitors' Fund Act 1951 (NSW). CATCHWORDS: TORTS – Negligence – Injuries to persons entering premises – Slip and fall in car park – Failure of external floodlights – Whether breach of duty – Where primary judge found that duty existed to provide a system that ensured that lights operated at nightfall – Duty only existed to exercise reasonable care to provide adequate lighting – Consideration of precautions that would have been taken by a reasonable person to avoid the risk of failure of lighting – Requirement to consider factors in s 5B(2) of the Civil Liability Act – Causation LEGISLATION CITED: Civil Liability Act 2002 (NSW) CATEGORY: Principal judgment CASES CITED: Rasic v Cruz [2000] NSWCA 66 Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Reports 81-818 TEXTS CITED: D Villa, Annotated Civil Liability Act 2002 (NSW) (2004) Law Book Co PARTIES: Penrith Rugby League Club Ltd t/as Cardiff Panthers (Appellant) Yvonne Marie Elliot (Respondent) FILE NUMBER(S): CA 40051/09 COUNSEL: G M Watson SC; R G Gambi (Appellant) I Roberts SC; T R Edwards (Respondent) SOLICITORS: HWL Ebsworth Lawyers (Appellant) Bale Boshev Lawyers (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 210/07 LOWER COURT JUDICIAL OFFICER: Sidis DCJ LOWER COURT DATE OF DECISION: 28 November 2008 LOWER COURT MEDIUM NEUTRAL CITATION: Elliot v Penrith Rugby League Club Ltd trading as Cardiff Panthers [2008] NSWDC 271 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40051/09 DC 210/07 IPP JA BASTEN JA SACKVILLE AJA Tuesday 18 August 2009 PENRITH RUGBY LEAGUE CLUB LTD t/as CARDIFF PANTHERS v ELLIOT Judgment 1 IPP JA: I agree with Sackville AJA. 2 BASTEN JA: I agree with the orders proposed by Sackville AJA and with his reasons. 3 SACKVILLE AJA: This is an appeal against the decision of a Judge of the District Court awarding the respondent damages of $114,601 in consequence of injuries she sustained in a fall in the car park of the appellant's premises, a licensed club. The primary Judge found that the appellant breached its duty of care to the respondent by failing to provide a system that ensured that the automatically operated external lights were in fact functioning when it became dark. 4 Grounds 1 to 6 of the Notice of Appeal challenged the primary Judge's findings that the appellant had breached its duty of care to the respondent and that the breach had caused the respondent's injury. Grounds 7 and 8 of the Notice of Appeal challenged the allowance made in the award of damages for the cost of future care required by the respondent. However, on the hearing of the appeal, Mr Watson SC, who appeared with Mr Gambi for the appellant, stated that the appellant no longer relied on Grounds 7 and 8. Accordingly, no issue as to the quantum of damages arises on the appeal. BACKGROUND 5 The appellant occupies premises in Cardiff on which it conducts a licensed club. The premises include a car parking area. 6 On 4 September 2004, the appellant attended the club with her son and daughter. They had lunch there and stayed until about 6.30pm. The appellant did not drink alcohol. She left the club with her son about five minutes after her daughter had left. 7 The respondent and her son left the club via the rear entrance/exit which led to the car park. The surface of the car park was covered with asphalt. At the time, there were no lane markings to guide pedestrians through the car park. The primary Judge found that the surface of the car park did not contribute to the respondent's fall and there is no challenge to that finding. 8 At a point approximately 4.6m from the door through which she had left the club, the respondent said that she felt her feet move on something as if they were on a roller. She fell forwards onto her hands and knees and fractured both of her wrists. There was evidence that some twigs or sticks were on the ground at or near the point at which the respondent fell. 9 The respondent's case at the trial was that the car parking area where she fell was inadequately lit and that the appellant's system of cleaning and maintenance was inadequate to remove accumulations of the twigs or sticks that caused her to fall. The primary Judge found that if the lights had been functioning at the time the respondent fell, he would not have regarded the presence of small twigs or sticks on the surface of the car park as a significant hazard which the appellant was required to take further steps to mitigate. In this respect it was enough that the car park was cleaned daily. The respondent does not dispute this finding. 10 The primary Judge made the following findings in relation to the appellant's case based on the inadequacy of the lighting: o Sunset occurred at Cardiff on 4 September 2004 at 5.38pm. At the time of the accident (approximately 6.30pm) it was dark. o There were two floodlights installed on the exterior of the club building. These operated on a photo-electric cell, so that they were automatically switched on at sunset. The sensor was located on the roof of the club premises. o The lighting was adequate for the car park area when the illumination was operational. o There was no evidence that the lighting system in place provided a warning when it failed to operate. Nor was there any evidence that a system was in force to check that the lighting became operational at the programmed times. o Although the respondent overstated in her evidence the size of the " branches " that caused her to fall, there were small twigs or sticks on the ground at the point where she fell. o The absence of lights caused a foreseeable risk of harm to patrons at the club. o A system that depended upon the casual reporting of a malfunction of the lights was not reasonable in the circumstances of pedestrian use of a large car park servicing a major social club. o A reasonable response to the foreseeable risk of harm would have been ([42]): "to provide a system of ensuring that the external lights that operated by means of an automatic system were in fact functioning by the time it was dark." o The appellant was in breach of its duty of care to the respondent in failing to provide adequate lighting for the car parking area over which she was walking at the time of her fall. 11 The primary Judge found that the respondent suffered serious bilateral wrist fractures, with ongoing moderate levels of pain and discomfort and restriction in the range of her movements. Her Honour assessed the respondent's non-economic loss at 26% of the maximum sum and therefore allowed her an amount of $36,000 in respect of that loss. Her Honour also awarded compensation for other heads of damage which are not now in dispute, including $47,825 in respect of future care. LEGISLATION 12 Section 5A of the Civil Liability Act 2002 (NSW) ("Civil Liability Act") provides that Part 1A (headed "Negligence") applies to any claim for damages for harm arising from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise. Part 1A comprises ss 5-5T of the Civil Liability Act. 13 Sections 5B and 5C of the Civil Liability Act are within Part 1A Div 2 ("Duty of Care"). They provide as follows: " 5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. 5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk." Part 1A Div 3 is headed " Causation ". Sections 5D and 5E, which are within Div 3, relevantly provide as follows: " 5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). … (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. 5E Onus of proof In determining liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation." SUBMISSIONS Appellant 14 Oddly enough, neither the primary judgment nor the written submissions of either party on the appeal referred expressly to the Civil Liability Act. Mr Watson, in his oral submissions on behalf of the appellant, contended that the primary Judge had failed to apply the correct test as to the duty owed by the appellant to the respondent. Mr Watson accepted that there was a foreseeable risk of harm to patrons of the club, in that they were at risk of injury from a fall if the lighting in the car park area was inadequate (Civil Liability Act, s 5B(1)(a)). He also accepted that the risk was not insignificant (s 5B(1)(b)). He submitted, however, that the primary Judge had applied an incorrect standard in finding that a reasonable response to the risk of harm was to ensure that the external lighting was in fact functioning by the time it was dark. 15 According to Mr Watson, the primary Judge did not identify the precautions that a reasonable person in the appellant's position would have taken to guard against the risk of harm. By simply requiring a system of ensuring that the external lights were functioning by the time darkness fell, the primary Judge applied too high a standard and did not specify the measures that a reasonable person in the appellant's position would have adopted. 16 Mr Watson submitted that there was no evidence on which the primary Judge could find that the appellant had breached its duty of care to the respondent. There was no evidence as to what caused the two external lights not to come on or to cease operating. Nor was there evidence of past failure of both lights simultaneously such as to require a system of inspection or constant monitoring, as distinct from a system that reacted to reports of failure. 17 Finally, Mr Watson pointed out that there was no finding or evidence as to whether the external lights simply had not operated at any time after sunset on 4 September 2004 or whether the lights had come on at sunset but, for some reason, subsequently ceased to illuminate the car park area. Even if the appellant was under a duty to check that the external lights had come on at sunset, there was nothing to indicate that the lights did not in fact come on at that time or that any failure of illumination had not occurred subsequently. The respondent therefore had not established on the balance of probabilities that any breach of duty by the appellant had caused her injuries (Civil Liability Act, s 5E). Respondent 18 The respondent submitted that the primary Judge had found, albeit not expressly, that the respondent's fall was caused by her stepping on twigs or sticks which had resulted in her losing her footing. Moreover, her Honour's finding that the external lighting for the car park area was inadequate was amply supported by the evidence. 19 The primary Judge had explained in her judgment that the appellant could have satisfied its obligation to ensure that the floodlights were operative by either of two means: o an automatic alert system for malfunctions; or o allocation of responsibility to a staff member to check the operation each evening at nightfall of the external lights that were meant to function automatically. Her Honour had applied the correct test and had not required the appellant to introduce a system of continuous inspection of the external lighting. 20 The respondent further submitted that the appellant's contentions overlooked evidence indicating that a manual switch was capable of overriding the automatic sensor and thereby rendering it useless. The use of this switch to turn off the lights was the most likely cause of the lack of illumination at the time of the respondent's fall. A simple system to check the lighting when darkness fell would have detected the problem. 21 Her Honour had found by implication that the respondent was looking where she was going at the time of the fall and would have avoided the hazard had the floodlights been on. The evidence supported this finding. REASONING The Primary Judge's Approach 22 As is pointed out by D Villa, Annotated Civil Liability Act 2002 (NSW) (2004) Law Book Co, at [1A.5B.050], s 5B of the Civil Liability Act does not itself impose an obligation on a person to exercise reasonable care to avoid harm to another person. The section sets out requirements that must be satisfied before the first person can be found to be "negligent in failing to take precautions against a risk of harm" (s 5B(1)). As Villa observes, "[s]atisfaction of the conditions is a necessary, but not a sufficient prerequisite for civil liability to arise." 23 In Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Reports ¶81-818, Ipp JA (with whom Spigelman CJ and Tobias JA agreed) held (at [11]) that the trial Judge in that case had erred when describing the Council's duty in terms of "ensuring" that a child would not fall through a skylight installed in the roof of a community centre. The content of the Council's duty was limited to taking reasonable steps to prevent persons falling through the skylight. 24 In the present case, the primary Judge proceeded on the basis that a reasonable response to the foreseeable risk of harm would have been to provide a system that ensured that the external lights that operated by an automatic system were in fact functioning by the time it was dark. Having expressed the duty in these terms, her Honour identified the appellant's breach as its failure to provide adequate lighting for the car parking area at the time the respondent was injured. Her Honour did not explain why the evidence justified a finding that a reasonable person in the position of the appellant would or, for that matter, could have established a system that ensured that the floodlights in fact functioned at nightfall each evening. Nor did her Honour explain why, in the absence of evidence as to the cause of the floodlights not operating at 6.30 pm on 4 September 2004, the system she considered to be a "reasonable response" would have ensured that the lights were on some 50 minutes after sunset. 25 Accepting (as the appellant did) that there was a foreseeable risk of significant harm to patrons from a fall if both floodlights were not working, the appellant owed a duty to the respondent to exercise reasonable care to provide adequate external lighting. However, the appellant could not be held liable for a failure to take precautions against harm unless a reasonable person in the appellant's position would have taken the precautions, having regard to the matters specified in s 5B(2) of the Civil Liability Act. The fact that neither floodlight was operating at the time of the accident does not, of itself, establish that the appellant breached its duty of care to the respondent. 26 In the absence of an explanation of the matters identified earlier, it is difficult to avoid the conclusion that her Honour regarded the appellant as under a duty to ensure that the floodlights were operating at a particular time or times, rather than a duty to take reasonable care to ensure that the floodlights were operating at those times. It is true that her Honour used the expression "reasonable response" in her judgment, but in my view that does not demonstrate that her Honour applied the correct standard. Had she done so, it would have been necessary for her to make findings as to the precautions a reasonable person in the appellant's position could and should have taken to minimise the risk that both floodlights would be inoperative at the same time during the night. The conclusion stated by her Honour, without an examination of the evidence as to what steps were available to the appellant, suggests that her Honour fell into the error identified in Waverley Council v Ferreira. Absence of Evidence 27 The question is then whether, on the findings of primary fact made by her Honour and on the evidence adduced at trial, it should be inferred that the appellant breached its duty of care to the respondent and that, if so, the breach caused the respondent's injury. The difficulty facing the respondent is the absence of evidence or findings on matters relevant to the resolution of these issues. The evidence did not address five important issues. 28 Firstly, there was no evidence or finding as to the reason or reasons the two external floodlights were inoperative when the respondent fell and sustained her injuries. The respondent adduced no evidence as to whether the absence of external illumination was due to a failure of the sensor, vandalism, the use of an override switch, a power failure or some other cause. 29 Mr Henry, the Team Leader of maintenance at the appellant's club, gave evidence on behalf of the appellant and was briefly cross-examined. He said (as the primary Judge found) that the floodlights came on automatically at sunset by means of the photo-electric cell installed on the roof of the club's premises. He also said that in the period he had worked full time at the club (from March 2004 to the date of hearing in November 2008), the photo-electric cell had been replaced only once, in 2008, about four years after the accident. (Mr Henry had previously worked part-time at the club as a cleaner, from around 1997 to 2004). He also said that prior to the accident, to his knowledge, both floodlights had never been inoperative at the same time. When one light was out it was because of a "blown globe" or vandalism. Mr Henry was not asked in cross-examination about the cause of the apparent double failure on 4 September 2004. 30 Secondly, apart from Mr Henry's evidence (which was not helpful to the respondent), there was no evidence as to the precise risk of failure of the floodlights against which the appellant might reasonably have been expected to take precautions. The respondent did not adduce, for example, expert evidence as to the likelihood of a malfunction in the sensor or of a power failure. Indeed, the evidence did not address, otherwise than in the most general terms, how the floodlights actually worked. For that reason, neither counsel was able to answer clearly the Court's questions as to the mechanism by which the photo-electric cell triggered the operation of the floodlights or the time, in relation to sunset, that the floodlights ordinarily became operational. 31 Thirdly, there was no evidence as to whether the floodlights had failed to come on at any time after sunset (5.38pm) on 4 September 2004, or whether one or both had come on at sunset but had ceased to function before 6.30 pm. 32 Fourthly, there was no evidence as to whether it was technically feasible to install a mechanism that would alert staff of the club to the failure of both floodlights at any given time, irrespective of the cause of the failure. Nor was there evidence as to the cost of installing such a system (assuming it to be feasible): cf Civil Liability Act s 5(2)(c). 33 Fifthly, there was no evidence as to what measures the appellant should reasonably have taken to remedy a failure of the external lighting once any such failure was discovered. Depending upon the cause of the failure, the exercise of reasonable care might have resolved the problem almost immediately after the failure was discovered. However, even the exercise of reasonable care might have involved a delay before the specific defect could be identified and rectified. On the assumption that there would inevitably be a delay in obtaining the services of an electrician or other tradesperson, there was no evidence as to what steps the appellant should reasonably have taken, if any, to warn patrons as they left the club in darkness. Indeed, the respondent's statement of claim did not allege, in the particulars of negligence, that the appellant had failed to warn her of the danger of traversing an unlit car park. Breach of Duty 34 As I have noted, the primary judge did not identify the precautions that a reasonable person in the position of the appellant would have taken to avoid the risk of failure of the external lighting illuminating the car park. Her Honour's formulation of the appellant's duty, in terms of implementing a system to ensure that the floodlights came on by the time it was dark, perhaps suggests that she was thinking of a visual check of the floodlights at or very shortly after sunset. Mr Roberts SC, who appeared with Mr Edwards for the respondent, appeared to support this interpretation of the judgment and, in any event, submitted that this Court should find that the appellant should have instituted such a system of visual checks. He was careful however to disclaim any suggestion that the appellant was obliged to institute a system of continual observation, so long as the club remained open at night. 35 In the absence of evidence as to the nature and source of the risk that the floodlights would fail, it is difficult to discern the evidentiary basis for the suggested finding. There would be little point, for example, in a visual check at or soon after sunset if the evidence suggested that the risk of failure of the photo-electric cell mechanism was remote and that no other foreseeable risk (such as vandalism) had ever occurred during the day. In these circumstances, a visual check at sunset would not be a reasonable precaution for a person in the appellant's position to take in order to guard against the foreseeable risk of injury to patrons. The precaution would not be responsive to the nature of the foreseeable risk. 36 Subject to what is said below on causation, it is possible that the regime suggested by Mr Roberts would have detected that the floodlights were not working at some time between 5.38 pm and 6.30 pm on 4 September 2004. But that possibility does not establish that a reasonable person in the position of the appellant would have instituted a system of inspection at about sunset to guard against the foreseeable risk of injury to patrons using the car park by reason of the floodlights not working at night. The danger of extrapolating from the particular circumstances that have resulted in an injury to a plaintiff a duty on the defendant to have prevented that injury was identified by Fitzgerald JA in Rasic v Cruz [2000] NSWCA 66, at [43]: "An infinite variety of circumstances produce a foreseeable risk of injury which could often be eliminated or reduced. The current tendency to consider only individual circumstances which produce injury and the means by which those circumstances could have been changed and the injury avoided is redefining the foundation of the law of negligence by impermissibly expanding the content of the duty of care from a duty to take reasonable care to a duty to avoid any risk by all reasonably affordable means. Such an approach pays insufficient regard to the degree of the risk of injury from the particular circumstance which caused injury and to the time, effort and cost of avoiding the risk of injury from all circumstances which might have caused injury and the financial capacity of a defendant to undertake such a task. A situation immune from criticism by an imaginative forensic engineer cannot be achieved by the removal of isolated risks but necessitates the removal of all sources of risk." 37 The evidence in the present case is simply insufficient to justify a finding that a reasonable person in the position of the appellant would have instituted a system of visual inspection of the floodlights at or shortly after sunset. The burden was upon the respondent to adduce evidence supporting such a finding, but she did not do so. 38 Mr Roberts, appreciating the paucity of evidence before the primary Judge, invited the Court to find that the most likely cause of the failure of both floodlights was that someone had turned off a master or override switch. The only evidence bearing on this question was given by Mr Henry as follows: "Q. Do you remember when it was in 2004 you went full time into maintenance? A. It was approximately March 2004. Q. And when did you become a Team Leader? A. That day, when I was put on full time. Q. I see; sorry, I misunderstood you. And were the light switches for the foyer and the exterior lights in the car park all on the same switching panel, or were they a (sic) different -- A. No, they're different. Q. Where would the switches for the exterior lighting be, can you tell us? A. The switch for the foyer light or exterior lights are behind the reception area, and for the floodlights, the sensor is up on the ceiling, on the roof area in the car park. Q. And if the photoelectric cell did not work for some reason, there was no way of knowing that unless somebody came in and said, 'Hey, the lights aren't on'? A. Yes." 39 Mr Henry's evidence did not address whether any switch located behind the foyer could override the sensor. Moreover, Mr Henry appears to have distinguished between "external lighting" and the "floodlights". Read in context, his evidence appears to indicate that it was only the switch for the external lighting (other than the floodlights) that was located behind the foyer. In any event, there is no evidence to warrant an inference that the failure of the floodlights was due to someone turning off an overriding switch. The Appeal Should be Allowed 40 The primary Judge erred in finding that the appellant owed the respondent a duty to provide a system of ensuring that the external floodlights operated by automatic sensors were in fact functioning by the time it was dark. The findings of primary fact and the evidence adduced at trial do not justify this Court in making a finding that a reasonable person in the position of the appellant would have taken the precaution of instituting a system of visual inspection of the floodlights at or shortly after sunset each day. 41 It follows that s 5B(1)(c) of the Civil Liability Act was not satisfied and that the appeal must be allowed. Causation 42 In view of the conclusion I have reached, it is not necessary to consider the appellant's submissions on causation. Nonetheless, in my opinion, it is appropriate to record that even if the respondent was able to establish that the appellant breached its duty of care by failing to institute a system of visual inspection of the floodlights at sunset, she did not discharge the onus she bore in relation to causation (Civil Liability Act, s 5E). 43 There are two difficulties confronting the respondent on this question. First, in the absence of evidence as to the reason for the failure of the floodlights, the evidence does not demonstrate that visual inspection in the manner proposed by the respondent would have detected the failure of both floodlights. The evidence is consistent with the floodlights having come on as usual at or shortly after sunset but, for some unknown reason, ceasing to operate before the accident occurred at 6.30pm. In these circumstances, even if the appellant had complied with the duty of care as formulated by the respondent, it has not been shown on the balance of probabilities that the appellant's injury would have been avoided. 44 The second difficulty is that, even if a visual inspection had taken place at sunset and revealed that the floodlights were not working, there is no evidence that the exercise of reasonable care by the appellant would have rectified the problem by 6.30 pm and thus prevented the injury to the respondent. As I have noted, depending upon the nature of the problem, even the exercise of reasonable care might not have enabled the appellant to rectify the problem within 50 minutes and it was not part of the respondent's case that the appellant failed to warn her of the dangers of crossing the car park in darkness. For this reason, too, it has not been shown on the balance of probabilities that compliance by the appellant with the duty of care formulated by the respondent would have prevented the respondent from sustaining her injuries. CONCLUSION The appeal must be allowed. The respondent must pay the appellant's costs. Orders should be made as follows: (1) Allow the appeal and set aside the judgment and orders of the District Court made on 23 December 2008; (2) In place thereof: (a) give judgment for the defendant, (b) order the plaintiff to pay the defendant's costs; (3) Order that the respondent pay the appellant's costs of the appeal; (4) Grant the respondent a certificate, if otherwise qualified, under the Suitors' Fund Act 1951 (NSW). ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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