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. Analysis 12It is apparent that Ms Livsey proceeded to exit the car park not via the pedestrian walkways through and surrounding the car park but by using the roadway where the vehicles exit. The presence of the boom gates was obvious to her as she entered the car park, and although she may not have given them particular attention, their presence on exiting the car park was likewise obvious. 13I am not persuaded that any further warning sign would have alerted her to the presence of the boom gate any more than her having to stop, press a button, take a ticket, and seeing the entry boom gate rise had already done. 14Sections 5F, 5G, 5H and 5I of the Civil Liability Act 2002 are as follows: "Division 4 Assumption of risk 5F Meaning of 'obvious risk' (1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable. 5G Injured persons presumed to be aware of obvious risks (1) In proceedings relating to liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk. (2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk. 5H No proactive duty to warn of obvious risk (1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff. (2) This section does not apply if: (a) the plaintiff has requested advice or information about the risk from the defendant, or (b) the defendant is required by a written law to warn the plaintiff of the risk, or (c) the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant. (3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection. 5I No liability for materialisation of inherent risk (1) A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk. (2) An inherent risk is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill. (3) This section does not operate to exclude liability in connection with a duty to warn of a risk." 15Assuming, in the present case, that the lowering boom gate constituted a risk of harm, then the risk of contact with a lowering boom gate was obvious to a reasonable person and thus Ms Livsey is presumed to be aware of it (under s 5G(1)). Because it was an obvious risk, National Car Parks did not owe her a duty to warn of it, pursuant to s 5H(1). 16Further, I was not persuaded that Ms Livsey had proved that she was unaware of the risk. She was not aided by her poor memory. She must have noted the boom gate's presence when she entered and must have been aware of the raising and lowering of the boom gate, as was her friend, Ms MacDonnell. That she overlooked that she was in close proximity to the boom gate immediately before it struck her is insufficient to persuade me that she was unaware of the risk, bearing in mind the provision of s 5G(2). 17No particular significance is attached in the Civil Liability Act 2002 to being aware of the risk. While it may be seem relevant to a duty to warn, it is not a factor in the exclusion of that duty under s 5H(1). 18Similarly, there seems to me to be an inherent risk of contact with boom gates that operate automatically, unless pedestrians are precluded from accessing the boom gates. However, access cannot be precluded since a pedestrian cannot be precluded from taking the route a car would take to the exit. Thus, liability would appear to be excluded under s 5I. 19There was no evidence of malfunction by the boom gate and no prior injuries. 20Ms Livsey relied upon an expert report of Ian Burn, a civil engineer. Mr Burn gave evidence that: "The layout of the car park...was conducive to pedestrians exiting the car park via the vehicle entry and exit lanes due to the location and nature of landscaping used to separate the car park from Henry Street". 21Mr Burn suggested a painted pedestrian route. 22Although the car laneways provided a way for pedestrians to exit the car park, in my view this was not a result of some defect in the layout of the car park. The car park did have a raised, painted pedestrian walkway through its centre, as well as pedestrian walkways around it. Moreover, the car laneways were obvious because of the painted arrows indicating the entrance and exit, and because Ms Livsey had just entered the car park. The car laneways may have provided a slightly more direct route, to exit the car park from the place Ms Livsey had parked to the courthouse where Ms Livsey desired to go, than did the pedestrian walkways. Yet that is not sufficient in my view to cause reasonable pedestrians to use that route, given the markings and obvious boom gates. If someone like Ms Livsey chose to walk where the cars travelled, by their entry they had just been alerted to the boom gates and could take steps to avoid them. 23Ms Livsey submits that part of the exit lane for cars should have been devoted exclusively to pedestrian usage. Yet this would result in an obvious danger, bringing cars and pedestrians into close proximity. It would also leave pedestrians in closer proximity to the boom gate. Accordingly, it would not reduce but rather tend to increase the risk of contact with the boom gate. 24There was no evidence of the cost or the ability of National Car Parks as manager (but not owner of the land) to implement this change to the car park arrangements, or even to cause the owner to implement the change. 25There is also nothing in this proposal by Mr Burns to indicate that it would have made any difference to Ms Livsey. She decided to walk across the car exit to exit the car park on a wet day. There is no evidence to indicate that a nearby path would have made a difference to her direction of travel, and I do not accept that it would. 26A complaint was also made about the length of the boom gate, although the significance of this was not pressed. If it were shorter, it may have been less noticeable and might also have encouraged more pedestrians to use the exit without substantially lessening the risk of contact. It would thereby create an added risk of harm, in addition to that resulting from the increased proximity between cars and pedestrians. 27There was evidence that a contract existed between Ms Livsey and National Car Parks. The entry showed a sign indicating "CONTRACTUAL TERMS AND CONDITIONS OF PARKING", although the conditions in evidence were not legible. Another sign indicated the charges for parking, and perhaps other conditions. Neither party sought to rely on the contract, although it seems to me to be relevant to the question of the nature of the duty owed. Nevertheless, the parties were content for me to decide the matter as if no contract existed between the parties, or if one did, it did not impact on liability in negligence. 28In my view, Ms Livsey has not established any negligence by National Car Parks since there was no malfunction in the boom gate's operation. The primary claim for liability was based on the car park arrangement, but there is no evidence that National Car Parks owned the site or had the capacity to make changes to the layout. In any event, I do not find that there is any negligence in the layout of the site. 29The requirements of ss 5B, 5D and 5E of the Civil Liability Act 2002 are 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. ... Division 3 Causation 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). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, 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. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (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 proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation." 30These provisions raise the question of whether the lowering boom gate constituted a risk of harm. 31Although the risk of contact with the boom gates is foreseeable, it is difficult to identify a risk of harm - or a not insignificant risk of harm - if the boom gate rises upon contact. Contact is not sufficient for harm. Mr Kovalenko's experiences indicate that without more evidence I should not accept that the boom gate is capable of causing harm. Apart from the limited evidence of Ms Livsey, there is no evidence that the boom gate descends with such force as to cause injury. 32Nor do I find that a reasonable person would take the precaution of installing another pedestrian walkway close to the vehicular exit under s 5B(1)(c) and s 5B(2) of the Act. This would involve the installation of another walkway parallel to and in close proximity to an existing pedestrian walkway, thus involving significant costs with little utility in reducing the risk of harm or in pedestrian walking distance. 33Further, and related to this, I was not persuaded that there was any damage suffered by Ms Livsey. There was some evidence that her headaches increased, but there was no evidence to indicate how relatively minor contact with the boom gate could cause this. I am not persuaded that it did. 34It follows that I could not conclude that Ms Livsey's injury amounted to 15% or more of a most extreme case, and so damages for non-economic loss would be unavailable. Nor is Ms Livsey's claim for economic loss or need for care persuasive. She was not working before the accident although she now is. Ms Livsey was asked what had changed domestically, and she referred to her two children at home, aged 16 and 17, "basically have to do a lot of things more for themselves". However, Ms Livsey cooks and does grocery shopping and the children, she said, "they can't really do things the best but they do help". An older son assists her to make the beds and clean the bathroom, and they vacuum the stairs. But "they have always been helpful" she says. Any additional home assistance provided by her children is not shown to be attributable to her increased headaches and I am not satisfied that the six hours per week for six months threshold required for voluntary care under s 15(3) of the Civil Liability Act 2002 has been met. Orders 35In accordance with these reasons, I order: (1)Judgment for the defendant. (2)The plaintiff to pay the defendant's costs. ********** 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: 12 December 2014