William Leslie v Commonwealth of Australia [1994] ACTSC 16 (3 March 1994)

SUPREME COURT OF THE ACT

WILLIAM LESLIE v. COMMONWEALTH OF AUSTRALIA
No. SC1286 of 1988
Number of pages - 5
Negligence - Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MASTER A HOGAN

CATCHWORDS

Negligence - Occupiers Liability - Speed humps installed in parking area at shopping centre - Portion of parking area closed - Employee of tenant riding motor cycle - Speed hump installed without warning - No issue of principle

Damages - Assessment - Personal Injury - Occupiers Liability - Chondromalacia to right knee - No issue of principle

HEARING

CANBERRA, 1 February 1994
3:3:1994

Counsel for the Plaintiff: G Lunney

Instructing Solicitors: T M Clarke

Counsel for the Defendant: J Harris

Instructing Solicitors: Phillips Fox

ORDER

THE COURT ORDERS THAT:
1. Judgment be entered for the plaintiff for $34,122.75.

2. The defendant pay the plaintiff's costs.

3. The money paid into Court be paid out to the plaintiff in partial satisfaction of the judgment.

DECISION

MASTER A. HOGAN This is an action for damages for personal injury sustained by the plaintiff in an accident in the parking area near K Mart at Belconnen Mall.

2. The area was under the care and control of an authority for the liabilities of which the defendant Commonwealth is now responsible.

3. The plaintiff was at that time employed as a stock storeman by K Mart. He was accustomed to come to work by motorcycle. One part of the car park level adjacent to the K Mart store was designated as a parking area for early staff, but it was the custom of the management of the centre to lock off the part of the car park that was closest to the shops from 6.30 until 9.15 every morning, to prevent staff and office workers from parking there, and to keep it free for shoppers. The method of closing the area off involved placing a tubular steel gate diagonally across an entry ramp, so that it prevented cars from driving straight ahead into the prime parking area, but allowed traffic to turn left to go to the early staff parking area.

4. There was a sign on the gate reading "CARPARK CLOSED UNTIL 9.15 A.M. K MART SERVICE BAY ONLY." At the side of the gate, on one of the structural columns, was another prominent sign: "10 KPH. Caution SPEED HUMPS."

5. When the gate was secured in place there was a gap of at least half a metre between the end of the gate and the kerb.

6. The plaintiff had been riding a cycle to work at the Belconnen Mall for just over two years. He usually arrived at about 8 am. For about two years he had been accustomed to park his motorcycle near the K Mart Auto Bay. But instead of turning left at the closed gate and proceeding around the perimeter of the parking area to get to the vicinity of the Auto Mart, he was accustomed to ride through the gap at the end of the gate and to proceed more directly to the place where he was to park his bike. Despite the warning sign at the side of the gate, there were no speed humps installed in the parking area until September 1982.

7. Mr Wotton, who was the property officer at the Mall at that time, gave evidence that he and the maintenance foreman had obtained some speed humps and installed them on 14 September 1982. He described their design. It is one of life's mysteries that seems doomed never to be solved that the design he described had no relationship to the type of speed hump that the plaintiff encountered on the morning of 15 September 1982.

8. On that morning he arrived at the Mall at about 7.30 am, with a friend, Mr Seary, as a pillion passenger. He rode his cycle, with Mr Seary still seated behind him, through the gap at the end of the gate and proceeded up the aisle of the empty car park. He was approaching an intersection with an aisle for cross traffic, where he was to turn right in order to ride to the K Mart Auto Bay area where he was accustomed to park the cycle. There were only safety lights on in the car park, although some natural light came from the sides of the car park. He had the headlight of the cycle on, on low beam. He approached the intersection in first gear, at about 10 kilometres per hour. As he negotiated the turn to the right his rear wheel struck some object and he and Mr Seary were thrown to the ground.

9. He looked back and saw that a speed hump had been installed, in a place where no speed hump had been when last he had passed that way.

10. Later that morning he made a measurement of the speed hump and took photographs of it. The photographs give a much better idea of its shape and dimensions than his measurements.

11. When shown the photographs taken by the plaintiff Mr Wotton commented, "It definitely appears to be our car park. I can't remember that speed hump. It could be very well the one but I can't remember that. I didn't instal that speed hump."

12. There were nine other people in the maintenance branch, any one of whom could have installed it. On the other hand, he remembered the incident, although he did not attend it, and he was sure that he had installed a speed hump at that location, though of a different type.

13. I have no doubt that the speed bump that the plaintiff encountered was the one shown in the photographs that he took, Exhibit D.

14. It was formed of two pieces of concrete, laid horizontally side by side across the aisle along which the plaintiff travelled. From its appearance in the photographs it seems to be less than five inches high. It was about the same colour as the pavement on which it was laid. The ends were squared off and it did not extend across the whole width of the aisle. With the lighting conditions as they were at the time it would have been quite likely that a cyclist would have failed to see that it was there.

15. There were no signs to indicate that the new speed humps had been installed. The signs that had been there for more than a year did not give any real warning, as they had been an empty threat to the plaintiff's knowledge over that entire period. A quite simple method of at least making them more noticeable was reasonably available, as the plaintiff gave uncontradicted evidence that red and white stripes were painted on the one that he had struck by 3 pm on that same day.

16. Mr Seary, the pillion passenger, gave evidence by telephone. He also had been accustomed for some time to park his motorcycle just in front of the K Mart Auto Mart.

17. Neither the plaintiff nor the defendant had ever been told not to park there. As I understand the defendant's plan, Exhibit 1, and the sign on the gate, the K Mart Service Bay area was accessible even for cars when the gate was closed. I do not think that the sign on the gate was such that the Centre Management should not have anticipated the presence of motorcycle traffic in the place and at the time of the accident. I think that the existence of the gap between the end of the gate and the kerb, and the practice of the plaintiff, Mr Seary, and others no doubt, of riding through the gap and by the shortest route to the place where they parked their cycles, should have been known to the Centre Management. The management should therefore have anticipated that a cyclist might travel that route at that time. In those circumstances it was foreseeable that a cyclist might well not see the road hump and suffer an accident and injury. It failed to take reasonable steps, by painting, lighting or warning, to avoid injury to the plaintiff from that cause.

18. There will therefore be judgment for the plaintiff.

19. Mr Seary's recollection of the accident differs in some details from that of the plaintiff. He thought that both wheels went over the hump, whereas the plaintiff said that only his rear wheel hit it. He also thought the hump was eight inches high, which is obviously wrong. It is understandable that he did not see the hump before they struck it, because he was not driving, and had no reason to be looking carefully. But he confirmed what is obvious from the photograph in any event, that it was just concrete on concrete, and that the plaintiff's speed was moderate.

20. I am not satisfied that the plaintiff failed to take care for his own safety in the way that he drove or the lookout that he kept. I am also not satisfied that he was at fault in the relevant sense in taking the path that he did. The sign on the gate meant, was intended to mean, and was understood by him to mean that the part of the car park controlled by the gate was not available for parking until 9.15 am. He was not proceeding to park in an area prohibited to him. He was riding through a part of the building in order to get to a place where he was at liberty to park, that is, near the K Mart Auto Bay.

21. I am not satisfied that he was guilty of any contributory negligence.

22. In the fall the plaintiff suffered abrasions to the right knee, with severe bruising. He felt pain on the kneecap, above, below and behind it, and at the back of his knee.

23. He went to the first aid officer, who cleaned and bandaged the knee. He then went to work, until he could see his doctor, Dr Sutton, who practised in the Mall.

24. Dr Sutton x-rayed the knee and referred the plaintiff to Mr Maher for physiotherapy. She gave him certificates for work for that afternoon and two succeeding days, Thursday and Friday.

25. He returned to work on the Monday, and on Tuesday 21 September he saw the physiotherapist. Mr Maher noted that he had pain in both posterior and anterior aspects of the knee, but especially anteriorly. The pain was aggravated on both flexion and extension, and caught on movement. He was limping and pain was increasing towards the end of a working day. Treatment consisted of traction, massage, ultrasound and cold packs. Mr Maher last saw the plaintiff on 29 September 1982.

26. With time his knee gradually improved. He did not take any more time off work. For a time he concentrated on supervision, while other workers did any heavy lifting or carrying for him. He tended to favour his right leg, which ached more if he did any heavier work. It took months before it was reasonable and years before he could tolerate the pain easily.

27. On 18 June 1984 Dr Mann, surgeon, examined him at the request of his solicitors. His complaints were that the knee felt stiff or sore whenever the weather changed, it was painful after exertion, and it cracked a lot. He had previously injured his left knee and Dr Mann found clunking at the patello-femoral articulation in both knees. X-rays were normal. He diagnosed traumatic chondromalacia, which was of a nuisance kind.

28. Dr Mann saw him again about a year later. He had changed his occupation and was working at the airport behind the Ansett counter, helping passengers. The only difference that Dr Mann noted from his previous examination was one centimetre of wasting of the right thigh muscles. He was complaining of increased pain.

29. In July 1991 Dr Mann found no wasting of the thigh muscle. The plaintiff was only occasionally taking Aspro for pain. He was not disabled in any way, but occupations which involved kneeling, for example, would be uncomfortable.

30. In July 1991 Dr Corry also examined him for his solicitors. His complaints were much the same as to Dr Mann. He could run, but not for long distances. In sport he was mainly restricted to aerobics, golf and occasional social cricket. There was a full range of movement in the knee, with some post patellar crepitus. Dr Corry also diagnosed a chondromalacia patellae. It did not present a disability, but limited involvement in more active recreation. Dr Corry had up-to-date x-rays taken, which were within normal limits. He thought that arthritic deterioration was unlikely.

31. For his pain and suffering and loss of amenity I award $25,000. For the purpose of awarding interest, only $5,000 of that would relate to the future. The greater part of the pain was suffered in the first year after the accident, which occurred over 18 years ago. I do not think it is necessary therefore to average the award over the time since the accident and I award $9,000 for interest.

32. The wage loss was agreed at $45, and the out-of-pocket expenses at $77.75.

33. The total award is therefore made up as follows:-

Pain and suffering $25,000
Interest $ 9,000
Wage loss $ 45
Expenses $ 77.75
TOTAL $34,122.75

34. I direct entry of judgment for the plaintiff for $34,122.75.