Johnston v Rooty Hill RSL Club Pty Limited (No 2) [2014] NSWDC 258

District Court New South Wales

Medium Neutral Citation: Johnston v Rooty Hill RSL Club Pty Limited (No 2) [2014] NSWDC 258 Hearing dates: 22-24, 27 and 31 October 2014 Decision date: 03 November 2014 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: (1) Judgment in favour of the defendant. (2) Plaintiff to pay the defendant's costs. Catchwords: TORT - personal injury - slip and fall - alleged inadequate lighting - alleged slippery surface - not a pedestrian walkway Legislation Cited: Civil Liability Act 2002, Pt 6, s 5B, s 5C, s 15 Cases Cited: Jones v Dunkel (1959) 101 CLR 298 Port Macquarie Hastings Council v Mooney [2014] NSWCA 156 Shoalhaven City Council v Pender [2013] NSWCA 210 Category: Principal judgment Parties: William Johnston (plaintiff) Rooty Hill RSL Club Pty Limited (defendant) Representation: Counsel: Ms E Welsh (plaintiff) Mr N Polin SC (defendant)

Solicitors: Brydens Law Office (plaintiff) Sparke Helmore Lawyers (defendant) File Number(s): 2013/204561

Judgment

1. Introduction 1. After a late night at the Rooty Hill RSL Club owned by the defendant ("the Club") William Johnston slipped and fell outside in the car park fracturing his wrist and ankle. He sues the Club in negligence.

2. Background 1. Mr Johnston visited the Club with his two sons on Saturday evening, 24 July 2010. He said they arrived at about 9pm; his son, Allen Johnston, said the arrival time was 5pm or 6pm; and his wife, Jill Johnston, who did not attend with him, said it was about 10pm. Mr Johnston and his sons spent the time together drinking schooners of full strength beer and playing the poker machines. 2. At some time after 1am, perhaps after 3am, Mr Johnston decided to leave. The Club had a practice of closing the front eastern doors at 12 midnight, so the means of exit were through the rear western doors, which open onto the main car park, and a taxi rank. The Club also provided a courtesy bus for local patrons like Mr Johnston who lived within five kilometres of the club. 3. When Mr Johnston exited the club, he found a number of people waiting for a taxi. He said in evidence-in-chief that this was the first time he had left by the western exit, but he accepted in cross-examination that he had previously used this exit and had caught a taxi or the courtesy bus home when using this exit. He accepted that he could have waited for a cab or arranged to use the courtesy bus. 4. The weather was wet. There was no evidence that Mr Johnston had an umbrella. Nevertheless, Mr Johnston determined to go to the main road to the east of the club in search of a taxi. This involved him walking some distance south through the car park, turning to the east to walk past the loading dock and southern end of the club and then turning north. He did not get that far. 5. Mr Johnston walked south. He was wearing "joggers" for footwear, which he said were in reasonable condition. The lighting enabled him to see where he was walking and the things in front of him. 6. When he reached the last car to his left he turned sharply to his left. He said that the lighting went very dark, however, he was able to see a kerb in front of the last car. He claimed that initially he thought the kerb was a footpath. 7. In front (that is, to the east) of the last two or three cars to Mr Johnston's left as he walked south, with the club to his left, was a small triangular garden bed. Beyond that was a driveway down to the loading dock. A concrete kerb bordered the garden bed. At its southern extremity, one corner of the triangle, the two sides were in filled with concrete in a semicircular shape, the rounded side to the south. The kerb at that point had a diameter of about 3 or 4 feet or so. The statement of claim called this area of concrete at the southern end of the garden bed a concrete kerb and I will adopt the same terminology. This was the kerb seen by Mr Johnston. 8. The concrete kerb was painted yellow on its western face and southwestern face. On the eastern side at the top, and perhaps on its eastern edge, it was painted white. I infer that the painting was to alert vehicles parking or using the loading dock, or travelling in that vicinity, and perhaps also to alert pedestrians to the presence of the edge of the kerb. 9. Mr Johnston, notwithstanding the asserted darkness and with no obstacles blocking movement to the more lighted area to the south, turned eastward and soon stepped onto the concrete kerb at the end of the garden bed. He then took a second step, said he noticed that his foot went an extra inch or so lower and his front foot then slipped for 6 inches off the end of the kerb and onto the roadway whereupon Mr Johnston fell forward and suffered the injuries to his wrist and hand. 10. Mr Johnston noticed problems with his arm and leg. He crawled to the covered area in front of the loading dock and telephoned his sons. They came within five minutes and with him took a taxi to Mt Druitt Hospital. The hospital triage records indicate that Mr Johnston presented at emergency at about 3.42am and that at 4.27am his arm was put in a sling and he was given some Panadeine Forte and Endone for pain and advised to return later as X-rays were not presently available.