Livsey v Australian National Car Parks Pty Ltd [2014] NSWDC 232

District Court New South Wales

Medium Neutral Citation: Livsey v Australian National Car Parks Pty Ltd [2014] NSWDC 232 Hearing dates: 4 and 5 September 2014 Decision date: 08 December 2014 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: (1) Judgment for the defendant. (2) The plaintiff to pay the defendant's costs. Catchwords: TORT - negligence - car park - patron hit by boom gate - obvious risk - inherent risk - need for pedestrian walkway - causation - damages Legislation Cited: Civil Liability Act 2002, s 5B, s 5D, s 5E, s 5F, s 5G, s 5H, s 5I, s 15 Category: Principal judgment Parties: Jacqueline Livsey (plaintiff) Australian National Car Parks Pty Ltd (defendant) Representation: Mr V Jurisisch (plaintiff) Mr D Priestley (defendant) P K Simpson & Co (plaintiff) Sparke Helmore Lawyers (defendant) File Number(s): 2013/212713 Publication restriction: None

Judgment

Introduction 1Jacqueline Livsey hit her head on a lowering boom gate when leaving a car park operated by Australian National Car Parks Pty Ltd ("National Car Parks"). She claims damages for negligence.

Events 2At about 10am on 6 June 2012 Ms Livsey drove to the car park operated by National Car Parks at the Henry Lawson Centre in Penrith. It was raining as she turned into the car park entrance. A friend, Karen MacDonnell, was a passenger. Ms Livsey took a ticket that resulted in the boom gate lifting, allowing her to drive into the car park. She parked the car and proceeded to walk back across the car park driveway where she had entered the car park, and across the driveway where cars exited the car park. She had no umbrella. As she walked across the exit lane, Ms MacDonnell called out to warn of the descending boom gate, but to no avail. Ms Livsey's head came into contact with the boom gate. 3Her purpose in going to Penrith was to attend the courthouse in support of the daughter of Ms MacDonnell who had a matter in court. After the incident Ms Livsey and Ms MacDonnell proceeded across Henry St to the courthouse opposite the car park. 4Although Ms Livsey felt the contact to her head, she did not immediately realize her head had come into contact with the boom gate. Ms MacDonnell informed her of this. Ms Livsey took some Panadol, sat in court for a short while, felt unwell and left the court. She bought some food but felt sick after a bite so she journeyed home. 5At about 7.30pm that evening Ms Livsey attended Westmead Hospital. The hospital records indicated she complained of vomiting from 12 noon, a headache and pain on the top of her skull. No bleeding, fracture or subluxation was detected. A CT scan was normal. After resting in the corridor, no hospital bed was available at about 4am and she went home. 6Ms Livsey has had a prior history of headaches but since the injury she complains that they have become more frequent and more severe. Ms Livsey also has had a past history of lower back pain. She was not working at the time of the accident, being on workers compensation benefits for a pre-existing back complaint. She also complained of hand numbness and urinary incontinence although an expert neurologist retained by her was unable to attribute these conditions to the accident. Nor was the neurologist able to attribute any diminished capacity for work or any care requirement to the accident. 7She currently works at Hornsby TAFE for about 15 hours per week. She doubted she could work more hours because of migraines, her numbness and her back problems. She has four children, two at home aged 16 and 17 and two older children aged 22 and 24, one of whom assists her with the garden, some heavy lifting and domestic tasks. 8Ms Livsey's memory of the events was limited. She could not remember driving through the boom gate, whether she saw the exit boom gate and whether she collected a ticket at the boom gate. She said, "My memory is shot". 9The boom gate is operated on an automatic mechanism. The presence of a car triggers the ticket mechanism, which is activated to produce a ticket when a button is pressed. When the ticket is collected, the entry boom gate rises to allow entry to the car. On exit, the presence of the car again triggers the operation of the machine. Insertion of the ticket (and if necessary payment of the fee) causes the boom gate to rise to allow exit. Once the car has left the area the boom gate lowers again. 10No other person had ever reported to National Car Parks that they had been struck by this boom gate. Vladimir Kovalenko, the Area Operations Manager of National Car Parks, said that while working on boom gate mechanisms, his head had many times been struck by a boom gate, "not this one", but he had suffered no injury. A boom gate is designed to "go back up" if it touches something on descent, as it did when it contacted Mr Kovalenko. 11The car park contained a pedestrian walkway around it, and a pedestrian walkway through the centre of the car park.