Warrener v Australian Capital Territory [2003] ACTSC 73 (5 September 2003)

Last Updated: 14 October 2003

IN THE SUPREME COURT OF THE )

) No SC 793 of 2001

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: ANNE LEONORE WARRENER

Plaintiff

AND: AUSTRALIAN CAPITAL TERRITORY

Defendant

CORRIGENDUM

Coram: Master Harper

Date: 10 October 2003

Place: Canberra

The Reasons for Judgment delivered on 5 September 2003 are amended as follows:

the third sentence in paragraph 39 is deleted and the following sentence substituted:

I accept that if Mr Philippa or another inspector at his level had inspected the trench prior to the plaintiff's injury, it would have been assessed as not presenting safety concerns and as not requiring repair or maintenance work.

Associate to Master Harper

Dated: 10 October 2003

ANNE LEONORE WARRENER v AUSTRALIAN CAPITAL TERRITORY

[2003] ACTSC 73 (5 September 2003)

NEGLIGENCE - personal injury - shopping centre carpark - duty of public authority to ensure adequate lighting - duty of public authority to inspect carpark surface.

DAMAGES - personal injury - fractures of both ankles - no issue of principle.

Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; (1998) 192 CLR 431 at 480

Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512

Ghantous v Hawkesbury City Council [2001] HCA 29; (2001) 206 CLR 512

No SC 793 of 2001

Coram: Master Harper

Supreme Court of the ACT

Date: 5 September 2003

IN THE SUPREME COURT OF THE )

) No SC 793 of 2001

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: ANNE LEONORE WARRENER

Plaintiff

AND: AUSTRALIAN CAPITAL TERRITORY

Defendant

ORDER

Coram: Master Harper

Date: 5 September 2003

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment be entered for the defendant.

2. The defendant's costs of the action be paid by the plaintiff.1. On Easter Saturday, 4 April 1999, the plaintiff dined with two friends at the May Sum Restaurant at the Charnwood Shopping Centre. The plaintiff, who lived at Weetangera, was the designated driver for the outing, and she collected her two friends from their homes at Macquarie. They enjoyed dining at the restaurant and had been there on many previous occasions. They shared a bottle of wine over dinner, the plaintiff having very little because she had to drive home. They arrived at the restaurant some time soon after 7:00 pm, and left some time after 9:00 pm. They parked in the shopping centre carpark.

2. It was a very dark night, and by the time they left the restaurant, perhaps because it was Easter, the neighbouring shops were closed and their lights were off. On previous occasions, other shops including a take-away food shop and a video rental outlet had still been open, and lighting had not been a problem. On the night in question, there was no natural light, and the only artificial light was from what might be described as streetlights on high poles. It is common ground that the defendant, the Australian Capital Territory, was responsible for the maintenance of the carpark, including lighting, and was relevantly the occupier of the area.

3. The path taken by the plaintiff and her friends from the restaurant back to the car took them along a brick or stone pavement to a kerb surrounding the parking surface, which was asphalt or bitumen, with painted lines delineating car parking spaces. By that time there were almost no other cars left in the carpark. The plaintiff's car was parked in a space some metres from the kerb.

4. The plaintiff's evidence was that they stepped off the kerb walking three abreast towards the car. On her second step after leaving the kerb, the plaintiff fell. She felt that she had put her foot in a hollow. She had not seen the hollow because it was so dark. She was expecting flat ground and put her foot down. It went further than she expected. She tried to save herself, but there was nothing to grab hold of, and she fell to the ground. She immediately felt intense pain in both her ankles and legs. As it turned out, she had fractured both ankles. When she fell, she had her car keys in her hand and was only about four steps from the car door.

5. Her friends took her to Calvary Hospital and she was transferred the following day to the Canberra Hospital under the care of Dr P Hannaford, Orthopaedic Surgeon. Dr Hannaford diagnosed a displaced fracture of the medial malleolus of the left ankle and a minimally displaced fracture of the lateral malleolus of the right ankle. He carried out an open reduction of the left ankle fracture, which was fixed internally with small screws. The right ankle was able to be treated by closed reduction and immobilised in a fibreglass cast.

6. The plaintiff spent fourteen days in hospital, and was sent home in a wheelchair. She was looked after by friends who helped with shopping, food and household tasks. She was reviewed periodically at the Canberra Hospital fracture clinic. After twelve weeks, she was able to walk using crutches and weight-bearing on the right foot. An occupational therapist rearranged her house. She had to sleep in her spare room for some time.

7. The plaster was removed from her left ankle, after which she had physiotherapy three days a week for four or five months. She found it very difficult to walk with crutches. She was referred by her general practitioner to Dr E J Cassar, a consultant physician who directs a pain management unit. He arranged for her left anterior tibialis tendon, which was swollen and disorganised, to be injected with a mixture of celestine, chronodose and local anaesthetic. One of the friends who was with her on the night of the fall, Mr Harold Wilson, moved into the plaintiff's house whilst she was in hospital, to look after the house and in particular her dogs. After she got home, the plaintiff had assistance from a community nurse, who visited her several times and assisted her with showering. Her daughter came for a few days from Melbourne and helped with meals and shopping.

8. The plaintiff still has pain and swelling in the left ankle, and does not cope well with walking on uneven ground. The pain is worse in cold or wet weather.

9. Shortly before the accident, the plaintiff had bought a small four-wheel drive vehicle and a fold-out camper trailer. It was her intention to travel around Australia, basically on her own. The injuries made this impossible. She has a problem going down steps and is unable to go dancing. She can no longer wear high-heeled shoes and she cannot climb a ladder, for example, to change a light bulb. She finds driving her car in city traffic painful because she has her foot on and off the clutch continually. She had some help in the garden after the accident. There are a number of things she cannot do in the home, but she says that she recognises her limitations and adapts to them.

10. The plaintiff retired some years ago from her employment, but she had been engaged in some interior design work. She was reducing this, with the intention of giving it up and travelling. The accident probably accelerated this process.

11. The plaintiff still takes Voltaren, an anti-inflammatory medication. She was taking this before the accident for arthritis but she needs to take it more frequently now.

12. The plaintiff had some medical issues before the accident, which need to be taken into account. In 1995 she was referred by her general practitioner to a thoracic physician for investigation of possible sleep apnoea, but does not seem to have required treatment thereafter. This condition is completely unrelated to the disabilities occasioned by the accident.

13. More relevantly, the plaintiff had developing arthritic symptoms since 1992. She had been referred to Dr G Stubbs, orthopaedic surgeon, Dr K Tymms, rheumatologist, and Dr R L G Newcombe, neurosurgeon, for assessment and treatment in relation to rheumatoid arthritis and osteo-arthritis in both knees, probably resulting from a skiing accident many years earlier; and also disc degeneration in the lumbar spine. None of these conditions were interfering to a significant degree with the plaintiff's quality of life prior to the accident. She enjoyed camping and bushwalking with friends, gardening, and her interior design work.

14. She was assessed in March 2003 by Dr G G Griffith, consultant surgeon, at the request of her solicitors. Dr Griffith found significant restriction of movement in both ankles, much more marked on the left than the right, with persistent swelling. The left leg was held in a position of external rotation, leading to apparent pronation of the foot when walking, compounding the effects of the injury. There was tenderness consistent with major ligament damage to the left ankle, and CT evidence of avulsion fractures which left multiple ossicles in the ankle. In his opinion the plaintiff remained partially incapacitated, with a persisting limp, abnormal foot and ankle mechanics, and restrictions on activities. She continued to experience significant discomfort, particularly in the left ankle. He though that these symptoms would continue indefinitely, having regard to the fact that it was almost four years since the accident. It was likely, he said, that damage had been caused to the articular surfaces within the ankle, and it was likely that degenerative arthritis would develop, causing further pain and limitation of movement. He thought that the plaintiff would need periodic analgesics and anti-inflammatories, requiring regular review and supervision by her treating medical practitioners, and that she might require orthotics or special footwear to support the disturbed mechanics of the left foot.

15. The plaintiff was born on 10 November 1940 and is 62 years of age. She was living alone at the time of the accident but has since remarried. Treatment expenses were agreed up to trial at $10,219.10. I accept that the plaintiff will require consultations with her general practitioner from time to time, and prescribed medication. In the light of Dr Griffith's opinion about the possibility of development of arthritis in the left ankle joint, I accept that she may in time require further specialist attention and perhaps even more intrusive treatment. I allow $10,500.00 for treatment and other out-of-pocket expenses, and also accruing interest on the outstanding hospital accounts, up to the date of judgment. I note there is no further claim for interest on that sum. I allow $5,000 for future treatment.

16. The parties are agreed that I am to include $4,000 for past gratuitous care and services which also includes some payments for gardening. That sum is inclusive of interest, and there is no claim for the future in that regard. No claim is made for loss of earning capacity.

17. The injuries have had a major impact on the plaintiff, at a time in her life when she was hoping to enjoy retirement, including travelling with her camping trailer. Many of the activities she previously enjoyed are now closed to her. I accept on the medical evidence that her left ankle symptoms will not improve and may get worse, perhaps very much worse. In my opinion an appropriate award for general damages is $50,000, of which I apportion $25,000 to the period from the date of the accident to the date of judgment. Rather than seen as spread evenly over that period, the sum should be regarded as weighted towards the period immediately after the injury when the pain and interference with normal life were at their greatest. I award $2,500 interest on the past component.

18. I accordingly assess the plaintiff's damages flowing from the injuries at a total amount of $72,000, which appears to me proportionate to the injuries when the claim is considered as a whole.

19. I return to the circumstances of the injury, and the issue of negligence. Charnwood Shopping Centre is a typical Canberra suburban shopping centre, one of perhaps sixty or seventy such centres for which the defendant has responsibility. The shopping centre was originally developed some thirty years ago.

20. Parallel to the kerb between the restaurant and the carpark space where the plaintiff parked her car, a trench had at some time been dug through the bitumen surface, about a metre, or a little more, from the kerb. The trench was probably dug for some kind of cabling. It had been filled and resurfaced with bitumen. The new bitumen had sunk a little below the general level of the carpark as the fill compacted. I am satisfied that the plaintiff fell because she stepped into the depression so caused, and that the state of the lighting was such that she did not see it and could not reasonably have been expected to do so. Mr Wilson, who gave evidence at the hearing (and has sadly died since) returned to the scene the next day and took a number of photographs of the filled trench, which were in evidence. He came back to the scene a month or so afterwards and took some further photos, also tendered. He had been an electrical and mechanical engineer in the Australian Army and subsequently in the Commonwealth Public Service prior to his retirement in 1987. He estimated the width of the trench at ten to thirteen centimetres, and its depth at two to three centimetres.

21. Evidence was given on the behalf of the defendant by Mr P A Philippa, a Planning and Investigations Officer with Roads ACT, an instrumentality of the defendant. Mr Philippa has qualifications in engineering surveying and civil works supervision. He is one of a number of asset managers responsible for the inspection and maintenance of road-related assets in North Canberra. He attended the scene a little over a year after the accident. He inspected the asphalt surface of the carpark and the pedestrian pavement. He observed the road opening. He said that the northern section of the road opening was approximately fifty centimetres wide, reasonably flat, and the southern portion was approximately twenty centimetres wide, and had some depth. He inferred from the colour of the bitumen that the northern section was a recent repair and that the southern section, which was about the same colour as the surrounding pavement, was a fairly old repair. I am satisfied from the photographs taken by Mr Wilson that the darker section at the northern end was a repair which was done after the plaintiff's injury. I am also satisfied that the position where the plaintiff fell was not affected by that more recent repair. Mr Philippa described the southern portion as having some depression without sharp angles but some undulations. He took measurements using a straight edge and a tape. He measured the maximum depth of the depression to be one centimetre. There was a car parked over part of the trench: Mr Philippa endeavoured to take measurements by reaching in under the car. He carried out a second inspection in October 2001. At that time he measured the deepest part of the trench at one and a half centimetres. It seems unlikely that the surface of the bitumen would have dropped by half a centimetre between the two inspections. It is more likely that Mr Philippa was able to obtain a more accurate measurement because he was not impeded by parked cars.

22. It was part of Mr Philippa's responsibility to carry out inspections, generally in response to complaints by the public, as to what he described as pavement failures. He explained that where a utility company creates a road surface opening, sometimes the material used to fill the trench afterwards has not been compacted to the same standard as the surrounding pavement. Over time, the fill subsides, causing the bitumen surface over the opening to drop. Once the drop is of a size which Mr Philippa regards as requiring repair for safety reasons, he authorises repair. His evidence was that the trench he inspected at Charnwood did not give rise to a safety concern of that kind. It was an undulating surface without sharp edges, and would thus be unlikely to catch shoe heels or toes or to cause a trip hazard. Taking account of the width and depth of the depression, in his view it was safe. He also explained that it is not possible for a carpark to maintain a flat and level surface to the same degree as a concrete footpath. The surface of a carpark consists of stones ranging from seven to ten millimetres, bound in a bituminous material which is flexible. This is to be contrasted with a concrete pavement which is rigid and smoother.

23. Mr Philippa had made enquiries in an endeavour to identify who was responsible for the road opening. Territory Government records were of no assistance. His evidence was that such openings are made from time to time by utility companies and instrumentalities such as Telstra, Optus and ActewAGL. The expectation is that the utility company will make application to the Territory for a road opening permit. The Territory has procedures as to barricades, work safety and other matters. However, this does not always happen. On occasion a utility company will cut corners and simply undertake the work and then move on. The Territory Government will be unaware of it until it is observed on subsequent routine inspection. I am satisfied that this is what happened in relation to the road opening in question. The opening was carried out without formal permission from or notification to the Territory Government by a utility company or instrumentality. I am unable to say whether the instrumentality concerned was a Commonwealth or Territory instrumentality or a private utility company or contractor.

24. Having regard to the size of the paved area for which the Territory Government has regulatory responsibility, and in the absence of any evidence as to when the road opening was made and filled, or of any complaints by the public, I am not satisfied that the Territory could reasonably be expected to have identified the trench as a potential hazard. In any event, it follows from Mr Philippa's evidence that if he, or another inspector in his position, had been made aware of the trench and had inspected it prior to the plaintiff's fall, the trench would have been assessed as presenting no safety issue requiring its repair.

25. It follows that the plaintiff must fail on the first argument on which she put her case, that the trench constituted a hazard, and that the Territory's failure to repair it amounted to a breach of a duty of care owed by the Territory as occupier of the land.

26. I am satisfied on the evidence that the lighting in the carpark was such that, when the plaintiff and her friends left the restaurant to return to the car, and stepped off the kerb to the bitumen surface of the carpark, they were unable to see the depression. The depression is clearly visible in daylight and I infer that it would have been visible on the night in question with brighter overhead lighting.

27. As to the depth of the depression I accept the actual measurements made by Mr Phillipa as more likely to be accurate than the estimate made by Mr Wilson. I also accept the plaintiff's evidence that she fell because she stepped onto an area of the carpark where there was a depression, such that the surface was not where she expected it to be but markedly lower. Evidence was inconsistent as to precisely where the plaintiff and her friends stepped off the kerb to walk across the carpark: I think it is sufficient to say that I am satisfied that the plaintiff stepped onto the depression at its deepest or at one of its deeper parts. She was wearing flat-heeled shoes and there is no other explanation for her fall.

28. In relation to lighting, the plaintiff's case is that the lighting in the carpark was inadequate to the extent that the trench, which might not have been a hazard in daylight, became a hazard on a dark night. The lighting was probably adequate when the trees were first planted, but one can reasonably assume it has been becoming less so over the years, as the trees have grown. This is not to say that there was no light in the carpark: the plaintiff gave evidence at one point that she was aware of one light (its base can be seen in the centre of photograph no. 1 in Exhibit A) which she said was behind a tree which had leaves on it, so that she was walking in her own shadow essentially, from that light. I am satisfied that the light was inadequate for the plaintiff to see the trench on the night in question. I am also satisfied that it was reasonably foreseeable that a person in the position of the plaintiff, having dined at a restaurant in the Charnwood Shopping Centre, might walk to her parked car, taking the path she did, thereby crossing the trench at its deepest point, at or soon after 9:00pm on an Easter Saturday night. I am also satisfied that whether or not the Territory had actual knowledge of the existence of the trench, it was reasonably foreseeable that there might be such a trench with depressed surface in a suburban carpark such as that at the Charnwood Shopping Centre.

29. The question is whether the Territory owed the plaintiff a duty of care to provide lighting in the carpark at that time of night at a level which would have enabled her to see the trench. Mason J in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 emphasised that foreseeability of the risk of injury and the likelihood of that risk occurring are two different things. A risk of injury which is remote in the sense that it is extremely unlikely to occur, may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But the existence of a foreseeable risk of injury is not in itself decisive of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors. At p. 47, his Honour said:

In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.

30. In a case of this kind, there is a temptation to focus upon the site where the injury occurred, with the benefit of hindsight, as one which ought to have had particular attention from the defendant. Once the accident has happened, the risk seems obvious. There are two points which need to be made about this, both of which were made by Kirby J in Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; (1998) 192 CLR 431 at 480. To quote his Honour:

Insufficient attention has been paid in some of the cases, and by some of the critics, to the practical considerations which must be `balanced out' before a breach of the duty of care may be found. It is here, in my view, that courts have both the authority and responsibility to introduce practical and sensible notions of reasonableness that will put a brake on the more extreme and unrealistic claims sometimes referred to by judicial and academic critics of this area of the law. Thus, under the consideration of the magnitude of the risk, an occupier would be entitled, in a proper case, to accept that the risk of a mishap such as occurred was so remote that `a reasonable man, careful of the safety of his neighbour, would think it right to reject it' (Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd [1966] UKPC 1; [1967] 1 AC 617 at 642-643). It is quite wrong to read past authority as requiring that any reasonably foreseeable risk, however remote, must in every case be guarded against. Such an approach may result from the erroneous conflation of the three separate inquiries: duty, scope of duty and breach of duty. Although a reasonably foreseeable risk may indeed give rise to a duty, it is the inquiry as to the scope of that duty in the circumstances and the response to the relevant risk by a reasonable person which dictates whether the risk must be guarded against to conform with legal obligations. Precautions need only be taken when that course is required by the standard of reasonableness. Although it is true, as the applicant argued, that an occupier is not entitled to ignore safeguards against dangers because of the absence of past mishaps, it is equally true that years of experience without accidents may tend to confirm an occupier's assessment that the risks of harm were negligible.

31. The other factor discussed by his Honour related to the liability of public authorities, and is thus relevant to the present case:

As to the expense of taking alleviating action, it is increasingly recognised that courts must bear in mind as one factor that resources available for the public service are limited and that the allocation of resources is a matter for bodies accorded that function by law. Demanding the expenditure of resources in one area... necessarily diverts resources from other areas of equal or possibly greater priority. Whilst this consideration does not expel the courts from the evaluation of what reasonableness requires in a particular case, it is undoubtedly a factor to be taken into account in making judgments which affect the operational priorities of a public authority and justify a finding that their priorities were wrong... even in so-called operational decisions, which are subject to court assessment, it is necessary to evaluate more than simply the cost of preventing the particular accident. Inherent in the suggestion of the obligation of prevention is the cost that would be incurred in the measures necessary to prevent all equivalent accidents of a like kind and risk.

32. The issues as to the liability of public authorities were elaborated upon in the joint decisions of Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council [2001] HCA 29; [2001] 206 CLR 512, in which the highway rule as to immunity of public authorities for non-feasance was abolished. In the principal judgment of Gaudron, McHugh and Gummow JJ, their Honours dealt in some detail with the question of the content and breach of the duty of care, with specific reference to the issues of repair maintenance and works; pedestrians; and inspections (at 577 - 582). Relevantly, as to pedestrians, their honours said at 581:

The formulation of the duty and terms which require that a road be safe not in all circumstances but for users exercising reasonable care for their own safety is even more important where, as in Ghantous, the plaintiff was a pedestrian. In general such persons are more able to see and avoid imperfections in a road surface. It is the nature of walking in the outdoors that the ground may not be as even, flat or smooth as other surfaces. As Callinan J points out in his reasons in Ghantous, persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards such as uneven paving stones, tree roots or holes. Of course, some allowance must be made for inadvertence. Certain dangers may not readily be perceived because of inadequate lighting or the nature of the danger... or the surrounding area... In such circumstances, there may be a foreseeable risk of harm even to persons taking reasonable care for their own safety... Each case will, of course, turn on its own facts.

33. As to inspection, their honours said (at 582):

...there will be a breach of duty where an authority fails to take reasonable steps to inspect for such dangers as reasonably might be expected or known to arise, or of which the authority has been informed or made aware, and, if they are found, fails to take reasonable steps to correct them.

34. The plaintiff in Ghantous ultimately failed on the facts. Callinan J dissented as to the abolition of the highway rule but the rest of the Court adopted his Honour's reasons for finding against the plaintiff regardless of this. His Honour said, relevantly for present purposes (at 639):

the case of the applicant in negligence was that a differential in height between the concreted part of the footpath and the earthen part of it created a dangerous situation... There was no concealment of the difference in height. It was plain to be seen. The world is not a level playing field. It is not unreasonable to expect that people will see in broad daylight what lies ahead of them in the ordinary course as they walk along. No special vigilance is required for this.

35. Ghantous is of course distinguishable on the facts from the present case. The plaintiff fell on a very dark night, not in broad daylight. The hazard was not visible to her. Although she had been to the same restaurant many times previously, there was no evidence that she was conscious of the presence of the trench because she had previously seen it in daylight, and this was not put to her. On the contrary, her evidence was that the depression in the carpark surface was completely unexpected. As was noted in the principal judgment in Ghantous, inadequacy of lighting may be a significant factor.

36. From answers to interrogatories on behalf of the defendant, sworn by Mr L Mercieca, Manager for Operations and Roads with the Department of Urban Services, it appeared that the Charnwood Shopping Centre and carpark were inspected twice a week by ACTEW staff to check for defective lights. Records showed that there was no defect in the lights in the period of four months before the accident. It does not appear that the inspection was directed to the adequacy of the lighting of the carpark itself or any interference with that lighting by tree foliage. I infer that the purpose of the inspection was merely to ensure that the lights were working and to replace bulbs or tubes as necessary.

37. In September 1998, some six months before the accident, the defendant received a report from a cultural planner, Ms J Ohlin, proposing refurbishment of the Charnwood Shopping Centre. The report included reference to concerns related to personal and property security, focused on the issue of the generally poor levels of lighting in the shopping centre carpark at night, and the need to improve sight lines for both day and night use of the carpark. The concern expressed seemed to relate to possible criminal activity rather than the risk of injury of the kind which befell the plaintiff. This was followed by the development of a masterplan by Dorrough Britz and Associates, landscape architects and site planners. In November 1998, that firm provided the Department of Urban Services with a proposal for development works which included improving the lighting to the whole of the centre to provide a safe night time environment, to include an upgrade of carpark lighting and new pedestrian lighting. A full masterplan report was delivered in August 1999. Its recommendations included `new lighting to pedestrian and parking areas for improved safety to achieve AS1158.1'. In a total of some $880,000 proposed to be spent on the refurbishment, some $36,000 was budgeted for carpark lighting (`remove existing lights, new lights to required standard'). There was no evidence as to the requirements of Australian Standard 1158.1. The only relevant evidence was that the defendant was asked in interrogatories whether it had minimum standards for public lighting in public centres or carparks, and whether the public lighting at the Charnwood Shopping Centre carpark on 3 April 1999 complied with those minimum standards. The answers to both interrogatories were in the affirmative. This was not necessarily a reference to any Australian Standard, and might merely have referred to some internal departmental benchmark.

38. I infer that at the date of the plaintiff's fall the department was aware of concerns that the lighting in the carpark was inadequate from a safety perspective, and was in the process of taking steps to redress this, as part of a general refurbishment of the shopping centre, though not with any particular degree of urgency.

39. Whilst the defendant relied upon regular inspections by ACTEW to ensure that the public lighting was working effectively, the defendant had no system of regular inspection of the surface of the carparks, but rather responded to complaints from the public. This was not in my view unreasonable. I accept that if Mr Philippa or another inspector at his level had inspected the trench prior to the plaintiff's injury, it would have been assessed as presenting safety concerns and as not requiring repair or maintenance work. Probably the inspector would not have turned his or her mind to the question of the safety of the trench for pedestrians on a dark night.

40. There is no evidence of any complaints to the defendant about the inadequacy of the lighting prior to the plaintiff's fall.

41. It seems to me that the fall occurred as a result of a combination of unfortunate circumstances. The night was dark, and because it was Easter Saturday, shops which normally stayed open late had already closed by the time the plaintiff and her friends finished their dinner. The light from those shops was thus not available as a source of additional light to the carpark. The streetlights were probably operating correctly, but the area of the carpark where the plaintiff fell was in shadow or partial shadow because of tree foliage. Accordingly, the trench, which would have been obvious in daylight and hence not dangerous, was not visible to the plaintiff. The width of the trench was such that the plaintiff might easily have stepped across it without being aware of it, but as it happened she placed her foot into a deep part of the trench. The unexpected depression caused her to lose her footing.

42. I am not satisfied that the defendant was relevantly aware of the existence of the trench before the plaintiff's fall, nor am I of the view that, if it had been the subject of a routine inspection, the trench would have been assessed as posing any safety risk.

43. In the absence of complaints from members of the public, it seems to me that the defendant acted reasonably in relying upon inspections twice a week by ACTEW staff to ensure that the street lighting was operating correctly. The defendant was aware of the concerns of some residents as to the risk of car theft and assault, which could be reduced by better lighting, but not that there was a risk of a person suffering injury in the circumstances in which the plaintiff did. I am not satisfied that the defendant committed any breach of its duty of care to the plaintiff.

44. Contributory negligence was pleaded but not pressed by counsel for the defendant in address. The plaintiff's conduct could not, in my view, have been found to amount to failure to take reasonable care for her own safety. Had I found any negligence on the part of the defendant, there would have been no basis for a finding of contributory negligence.

45. There will be judgment for the defendant with costs.

I certify that the preceding 45 (forty-five) numbered paragraphs are a true copy of the Reasons for Decision herein of Master Harper.

Associate:

Date: 5 September 2003

Counsel for the plaintiff Mr F M G Parker

Solicitor for the plaintiff Capital Lawyers

Counsel for the defendant Mr P A Walker

Solicitor for the defendant ACT Government Solicitor

Date of hearing 2, 3 June 2003

Date of decision 5 September 2003