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. 3. Credit 1. The defendant did not submit that Mr Johnston was dishonest with his evidence, nor did I find anything in Mr Johnston's evidence to suggest this. His evidence was not only honestly given but also generally balanced. He made several concessions including some in evidence-in-chief. However, his evidence was not always accurate. He gave evidence that the fall happened early on a Saturday morning, that he had never used the western exit, that his arm was not put in a sling at the hospital and that he had received no pain medication. All of these matters were either conceded by him to be wrong subsequently, or disproved by other evidence including contemporaneous documents. 2. The defendant also raised other matters. 3. First, it was submitted that Mr Johnston did not merely visit the club fortnightly as he asserted, because this was the third day in succession that he had visited the club. Mr Johnston was on leave from work at the time, which may explain a variation from his usual practice when working. There was nothing to indicate that his estimate of the frequency with which he visited the club was substantially different from his actual usual practice. On the other hand, that he was on leave was another matter he wrongly denied, although not a matter of particular significance. 4. Secondly, the defendant submitted that the plaintiff did not arrive at 9pm and depart at 1am after five beers, as he said, but rather arrived at five or 6pm and departed after 3am intoxicated, having consumed more than ten beers. 5. I was not satisfied that the plaintiff's estimate of arrival at 9pm was inaccurate. That it conflicted with his son Allen's estimate may have been a reflection on the reliability of his son's recollection. The events were perhaps of more significance to Mr Johnston. 6. The fact that Mr Johnston's other son was available but did not give evidence may mean that I must infer that his evidence could not have helped Mr Johnston in accordance with Jones v Dunkel. It does not mean that I should conclude that the other son would have corroborated Allen Johnston's estimate of a 5pm to 6pm arrival time. 7. I do not attribute any real significance to the different estimates of drinks per hour given by Allen Johnston compared to Mr Johnston's evidence as to the amount of beers he consumed. I think it is likely that Mr Johnston left the club closer to 3am than 1am principally because of the hospital records, but that does not persuade me to any significant extent that it was more likely than not that he was intoxicated. 8. I note that the hospital records indicated "intoxicated" although not with any level of intoxication specified. 9. Mr Johnston gave evidence that he had never drunk alcohol so as to be slurring his speech or stumbling in his walk. He had not been refused service on the night or any other night at the club and I accept his evidence that he was not intoxicated, that is, drunk or manifestly affected by alcohol at the time of his fall. He had been drinking alcohol, it was wet, he had no umbrella, he wanted to get home, and he wanted to get to the front of the club to catch a taxi. These matters may have made him move with undue haste and be less observant than an average person in other circumstances might have been. 10. I do not find there is any application of the intoxication provisions in Pt 6 of the Civil Liability Act 2002. I do not find he was intoxicated to the extent that his capacity to exercise reasonable care and skill was impaired. 11. Further, if Mr Johnston were intoxicated, I find that the injuries were likely to have occurred even if he had not been intoxicated, once he had determined to go to the front of the club in haste, in the rain, ignoring the darkness he asserted was present when determining his route of travel and deciding to step onto a kerb. 12. Whilst this decision might have been unwise, plainly not all unwise decisions are attributable to excessive alcohol consumption. I am not persuaded that Mr Johnston's unwise decision on this particular night should be attributed to him being under the influence of alcohol. 13. I also generally accept Mr Johnston's evidence as to the effect of his injuries. 4. Liability 1. According to allegations in the statement of claim, the negligence of the Club included "[h]aving on the premises a sloping concrete kerb which was extremely slippery when wet", a failure to treat the kerb with nonslip paint, failure to warn of the slippery, dangerous surface, a failure to ensure the area was well lit, a failure to barricade a slippery kerb to prevent walking on it and a failure to provide an exit to an area where taxis were available. It is convenient largely to deal with each of these matters separately. (a) Sloping, slippery when wet concrete kerb on the premises 1. Mr Johnston led no evidence to identify in any measurable way the level of slope of the concrete kerb or the extent of the slipperiness whether when wet or dry. Neil Adams, an ergonomist who has taken slip resistance measurements in many other cases, did not do so in this instance. He gave evidence that he felt the surface and said that it was "smooth painted surface with no asperities of the type I would expect to feel" and that the adjacent concrete surface was "substantially rougher". Mr Adams did not refer to the gradient of the concrete kerb. 2. One of the photographs (Exhibit D upper photo) appeared to indicate that the kerb sloped down to the east. However, after analysing that photo, including the apparent slope of the roadway from west to east, I was left unsatisfied that the photo fairly indicated the gradient. I accept that there was some slope down to the east but there was little evidence to assist me as to the level of the downward slope and none to indicate the significance of the extent of the downward slope on the level of slipperiness. 3. Mr Johnston stated that his foot went down an inch or so. If I infer that his step was say 33 inches, in quantitative terms that would indicate a slope of about 3% (or 2 degrees), but I do not think I can safely draw this conclusion as to the gradient from this estimate by Mr Johnston. In any event, it does not assist me without other expert guidance as to what significance a 3% gradient has on the matter of slip resistance. Nor do I know how this gradient differs from the surrounding gradient of the roadway. 4. Section 5B of the Civil Liability Act 2002 provides: "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." 1. Mr Johnston did not assert that the concrete kerb constituted a not insignificant risk of harm in good lighting. He submitted that in those conditions the kerb could be simply avoided by taking a step to the right. Slipperiness alone was not pressed as a sufficient basis to establish negligence. 2. Consistent with this submission and leaving aside the issue of the lighting, I am not persuaded that the slipperiness of the kerb presented a not insignificant risk of harm. It was not a footpath or a pedestrian walkway of any sort. Although it was located at the end of a parking area, there was no evidence as to the extent, if at all, it protruded beyond the last vehicle. Had it done so, it might potentially have constituted a trip hazard, which may provide some reason for the yellow and perhaps white paint on its side. But, in this case, there was no trip alleged or occasioned. 3. It is apparent that painted surfaces are commonly walked upon: pedestrian crossings and lines indicating parking spaces are but two obvious examples. Merely because a surface is painted does not establish that it is insufficiently slip resistant. 4. Standards for slip resistance, presumably, depend in part upon the purpose of the surface. The fact that this was a kerb and that this kerb was not a pedestrian walkway is likely to be of relevance in determining whether a standard (and if so what) is applicable. I accept the principle in Shoalhaven City Council v Pender [2013] NSWCA 210 at [47] urged upon me by the defendant: "In order for the respondent to succeed against the appellant, he had to adduce evidence supporting a positive inference implying negligence on its part, an inference which arose as an affirmative conclusion from the evidence and one which was established to the reasonable satisfaction of a judicial mind. The evidence had to rise above the level of conjecture, could not be based on possibilities but had to be established as a matter of probability, and had to do more than give rise to conflicting inferences of equal degrees of probability". 1. Similarly, the circumstance that the place where the fall occurred was not a pedestrian walkway is critical, in my view, in determining whether or not there was a duty to take care to ensure it was slip resistant or to paint it with a slip resistant coating. The Club cannot be obliged to coat every surface not a public walkway with a slip resistant coating, and if not all surfaces why this one. Section 5B(2)(a) and (c) of the Civil Liability Act 2002 and also s 5C(a) and (b) militate against such a burden. 2. I find the Club was not so obliged, again noting that this aspect of the case was not pressed as sufficient in itself for negligence. (b) Failure to treat the kerb with nonslip paint 1. This matter received no attention at trial. There was no evidence of the type of paint, whether white or yellow, that was used or could have been used on the kerb. There was no evidence that non-slip paint was not used (a matter Mr Adams did not address) and no evidence of how it should have been applied, to what part of the kerb, and what difference it would have made. 2. In any event, for the reasons I have already given, I do not accept that reasonable care required painting this kerb with non-slip paint since it was not a surface that was intended to be or would reasonably appear to be a pedestrian walkway. There could be no duty to render slip resistant every external surface on the club property, even every external, horizontal, near ground level surface, irrespective of whether it was a pedestrian walkway or not. (c) Failure to warn of slippery surface and failure to barricade the slippery kerb 1. These particulars of negligence were also not the focus of the plaintiff's submission at trial and must also fail because of the failure to prove the "slippery surface" as found above. (d) Failure to provide an exit area where taxis were available 1. Mr Johnston conceded in evidence that taxis were available at the western exit and, thus, this particular of negligence must fail. Evidence that the eastern exit was not kept open after midnight because of the cost of employing three additional staff is of no significance. (e) Failure to ensure the area was well lit 1. This was the primary focus of Mr Johnston's case. It relied upon his evidence that after he turned to proceed east, around the southern area of the club, he was in darkness and could only see two foot in front of him. 2. Mr Johnston faced a number of challenges in this aspect of the claim. 3. First, Mr Adams, retained by the plaintiff, performed testing at night and found that the lighting in the area of the fall was adequate. The lighting at the time of Mr Adams' testing consisted of floodlights on the upper parts of the walls of the club, lights in the car park, and light emanating from the loading dock area and the internal sections of the club. Mr Adams inferred that some of this lighting was not present at the time of Mr Johnston's fall and, in particular, the floodlights. But the evidence was largely to the contrary. 4. The floodlights mounted near the roof of the club were accepted to be present at the time of Mr Johnston's fall by Allen Johnston and by Mr Johnston. Mr Adams determined these floodlights to "[provide] adequate levels of illumination in the subject area". 5. Secondly, Mr Johnston accepted in cross-examination that although he thought, "from a distance [the kerb] was a footpath" and therefore went to stand on it, he, nevertheless, saw the kerb and recognised that it was a kerb in sufficient time to enable him to "step up" onto it and also saw and recognised that he would "have to immediately step off" the kerb. 6. Thus, the only significance to him of the lighting was that, potentially, he was unable to discern the increased level of slipperiness. But as I have found inadequate slip resistance not to be satisfactorily established, it removes the foundation of the plaintiff's claim. Mr Johnston did not fall because of inadequate light but because, as he says, he slipped on the surface. 7. If the slipperiness of the surface is not satisfactorily established, then there can be no negligence that is causative of the fall. It was argued that had the lighting been better, Mr Johnston would have avoided the kerb as a person in daylight might be expected to do. But Mr Johnston conceded that "even reasonably close to the kerb" he could see it was a kerb, and that, if he "stepped up," he would have to "immediately step off." 8. In my view, on Mr Johnston's evidence, the lighting became irrelevant before Mr Johnston stepped onto the kerb. In any event, I am not persuaded that the lighting did anything other than provide adequate levels of illumination. 9. The plaintiff perceived a need to establish that the floodlights were either not working or directed away from the relevant area, at the time of the fall, and thus were different from how they were on the night Mr Adams performed his illumination tests. But there was no evidence to this effect. The floodlight globes last three years, and there were two floodlights reasonably proximate to the kerb where Mr Johnston fell. Allen Johnston gave evidence that he returned to the scene a couple of days later, prior to any report of the fall, and the area was said by him to be well lit with the floodlights working. 10. The maintenance records did not indicate any lighting maintenance in the period between the fall and the subsequent visit by Allen Johnston, nor was any maintenance on the lights shown some two weeks later when the monthly inspection was carried out. Nor was there any evidence to establish that the angle of focus of the floodlights mounted high on the walls of the club were altered in the intervening period. There was evidence, which I accept, that the lighting came on automatically one hour before sunset and switched off an hour after sunrise. 11. Although the external lighting system was controlled by computer, it was capable of being overridden. But there was no evidence that any overriding of the lighting system occurred on this day. If the computer system had failed, apparently all the lights rather than just those above the loading dock would have failed. This did not occur. 12. Both Mr Johnston and Allen Johnston gave evidence of darkness near the loading dock. I accept that there are shadowed areas including immediately in front of the loading dock. This may have made it difficult for Allen Johnston and his brother to see Mr Johnston when they came to his aid shortly after the fall. That is not where the fall occurred. There was nothing capable of causing shadows on the concrete kerb, and I am not satisfied that lighting was inadequate in that area. 13. I note that there were bollard lights in a garden bed close to the kerb at the time of the fall that were not present at the time of Mr Adams' test. In the circumstances, I am unable to give them any significance, nor do I give any significance to the change in lighting from the southern car park, given Mr Adams' conclusions, which focus on the overhead floodlights. 14. Accordingly, I am not persuaded that the area around the relevant concrete kerb was other than "adequately illuminated" on the night of the accident. 15. For all these reasons, in my view, Mr Johnston has not made out a case for breach of duty in relation to the lighting of the area of the accident or that the lighting was causative of the accident. I was not persuaded that Mr Johnston walked on the kerb because of inadequate lighting, he having noticed that it was a kerb before he walked on it. 16. This case differed from Port Macquarie Hastings Council v Mooney [2014] NSWCA 156 in that the subject area here was adequately illuminated, not established to be slippery and the kerb was seen by Mr Johnston. 17. In case I am wrong, I should say something about my view on damages. 5. Damages 1. Mr Johnston worked for many years as a forklift driver and continues to do so. He had a fractured ankle in 1993, but that seems to have been of no real consequence. He also underwent repair of a pneumothorax in November 2005. As a result of the fall on 25 July 2010, Mr Johnston underwent surgery on his right wrist and left ankle including open reduction and internal fixation on the distal radial fracture and open reduction and internal fixation of the fracture of the right calcaneus. The left heel wound became infected and in November 2010 Mr Johnston was readmitted to hospital where the screws were removed and it was surgically cleaned. Subsequently, a vacuum assisted closure ("VAC") dressing was applied for ten days on 21 December 2010. Mr Johnston did not return to work until 28 February 2011. 2. In mid-2012 Mr Johnston developed pain in the left groin due to a left artery stenosis or occlusion, unrelated to the accident. An artery stent was inserted in November 2012, and Mr Johnston was off work from October 2012 until November 2013. Mr Johnston saw this as his major problem. It prevented him from doing physical labour including mowing the lawn, although he may have ceased mowing the lawn after the fall. Mr Johnston also had a further period off work in May and June of this year as a result of an injury to his right hand, unrelated to the fall. 3. As to the various components of damage, the plaintiff submits that I should assess the non-economic loss of the plaintiff at 35%, but I accept the upper end of the defendant's estimate of 26% of a most serious case, which equates to a sum of $46,000 for non-economic loss. I note that Mr Johnson is still working and able to work but he does notice issues in both his wrist and ankle and experiences pain especially after a long day of work. 4. The past out-of-pocket expenses are agreed at $1,276. As to future out-of-pocket expenses there is a prospect that Mr Johnston may have an operation to remove the metal plate in his wrist at a cost of $8,000. However, that is not advised because of his vascular problems and so far he has followed the advice of his doctors in that regard. There is a real possibility that improvement in his vascular problems or a change of mind in relation to the plate may cause him to decide to have the operation to remove the plate. That cost would be directly attributable to the fall. He also has the need for occasional painkillers. I would award the sum of $10,000 for future out-of-pockets. 5. In terms of past economic loss, the plaintiff was off work after the accident for a period of 32 weeks. The defendant's calculation of the amount of loss in this regard exceeds the plaintiff's. I accept the defendant's figures of a loss of $26,560 ($830 per week) on the basis that they are derived from the tax return, which may include overtime amounts that are not included in the defendant's figures. That produces an amount for lost past superannuation of $2,992. 6. In terms of future economic loss, the plaintiff sought the sum of $100,000 whereas the defendant submitted a sum of $20,000 including future superannuation loss. The plaintiff's ability to work since the accident, from February 2011 without interruption save for matters unrelated to the accident, suggests that his fall is unlikely to be the cause of any inability in the future to work as a forklift driver. 7. It may be that Mr Johnston will be unable to work a normal working life. But that is far more likely to be due to his vascular problems, which he accepted were his major issue. In that event, I am persuaded to award the sum suggested by the defendant of $20,000 as a buffer for the possibility of future economic loss attributable to the fall, an amount in the order of six months' earnings. 8. That leaves the question of past and future care. There was some evidence of regular care provided to Mr Johnston by his wife until about Christmas 2010. However, since the accident happened on 25 July 2010 Mr Johnston needs to establish that care and assistance were necessary until at least 25 January 2011 to reach the six-month threshold provided in s 15(3) of the Civil Liability Act 2002. 9. The evidence relied upon by Mr Johnston in relation to care and assistance was given by his wife in these terms: "Q. By the time you get to January 2011 how much time each day on average were you spending doing either extra housework or tasks assisting your husband personally because of his injuries? A. Probably about an hour. Q. Once he went back to work did you continue doing those extra things for a while or not? A. Not helping my husband, no, he didn't need help then." 1. Mrs Johnston thus accepted that she was not still doing things for him "[b]y the time he got back to work". 2. Mrs Johnston was also asked: "Q. In that period from Christmas up until the time he went back to work was he having to rest his foot? A. Yes. Q. Were you having to help him with dressing or bathing or anything at that time? A. Yes, because he had the VAC on so I had to help him with the cords and the cables from the VAC machine. Q. Around the time of that infection did you then go back up to doing more for him again or not? A. Not really." 1. The VAC was in place for the last 10 days of December 2010 and Mr Johnston gave evidence that he was able to get around with it attached. Thus, the reference to the VAC machine seems to confine the time of the assistance to the period ending at the end of December 2010 or the very beginning of January 2011. The assistance had certainly ended by the time Mr Johnston went back to work at the end of February 2011. 2. I think the words "By the time you get to January 2011" should be read as referring to the beginning of January 2011. In the intervening period before the return to work, that is January and February 2011, I can only speculate as to whether help was needed and provided, as the evidence does not address this period. 3. That is not enough to discharge the burden on the plaintiff. The absence of evidence that care was being provided up to the end of January 2011, rather than up to the time when the VAC machine was (or ceased) being used, means that the six-month threshold had not been reached and therefore no past care can be awarded. 4. Nor am I satisfied that any future care due to Mr Johnston's injuries from the fall is likely to be necessary. Mr Johnston conceded that, as I mentioned, the other injuries, namely, his vascular problems and the stent were more significant than those that resulted from the fall. 5. Thus, on my calculations the damages amount would have been $106,828. 6. Orders 1. The orders of this Court therefore are: 1. Judgment in favour of the defendant. 2. 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: 09 February 2015