The plaintiff, Kathleene Parker, fell from a step in the auditorium at Bankstown RSL Club (the club) on 22 December 2007. She was attending a daytime dance school concert with her husband and her five children. Her children were performing in the concert. As a result of her fall she fractured her right elbow.
The plaintiff brought a claim in the Supreme Court of New South Wales against the club, the first defendant and the proprietors of the dance school, the second and third defendants for their alleged negligence in failing to illuminate, or otherwise indicate the presence of, the step from which she fell.
The principal issues in the proceedings were as follows:
- how the incident occurred and whether the plaintiff fell because the step was not sufficiently indicated or whether she tripped on an object on the floor;
- whether the strip lighting designed to illuminate the step was working at the time of the plaintiff's fall and if it was working was the illumination sufficient;
- if the strip lighting was off which of the defendants was responsible for it being off;
- whether either or both of the club and the dance school proprietors were negligent; and
The plaintiff pleaded her claim in contract and tort. She alleged as a ticket holder to the dance concert that a term was implied into the contract that "services" would be rendered with due care and skill. Her Honour regarded the duties of care to be similar and co-existent in both contract and tort and therefore did not distinguish between the two claims.
The club as occupier of the premises was found to owe a duty of care to those in the auditorium to take reasonable care to protect them from harm and to warn of risks of harm that were not obvious.
Her Honour considered that because of the dimming of the house lights during performances the risk of someone missing a step and falling (the risk of harm) was foreseeable and not insignificant pursuant to the general principles of section 5B of the Civil Liability Act (2002) (NSW) (the Act).
However, her Honour considered that the precautions taken by the club to the risk of harm by installing metal strips along the edge of the step and strip lighting below the edge was reasonably sufficient to avoid the risk of harm. The plaintiff's expert liability evidence given that further illumination was required was not accepted.
Her Honour concluded that the plaintiff had failed to prove that the step was not illuminated. She found that the strip lighting on the step was probably illuminated throughout the subject concert.
Her Honour found that the plaintiff had failed in her case to establish a breach of duty against the club and that she fell because she was simply not taking reasonable care for her own safety in that she did not watch where she was going. Contributory negligence pursuant to sections 5R and 5S of the Act were not considered because her Honour considered the plaintiff was solely responsible for her fall.
The proprietors of the dance school were also found to be occupiers of the auditorium at the time of the plaintiff's fall. However, her Honour was satisfied that the proprietors of the dance school had not interfered with the strip lighting and that the strip lighting was likely to have been on at the time of the plaintiff's fall. It therefore followed that the plaintiff had also failed to establish any alleged breach of duty against the proprietors of the dance school.
The plaintiff was ordered to pay the defendants' costs of the proceedings.
Notwithstanding the decision as to liability, her Honour was obliged to assess damages. Briefly, an overview of the assessment is as follows:
The plaintiff was aged 42 years at the time of the hearing. As a result of the fall and fractured right elbow she had lost some of the use of her right arm and suffered pain. The plaintiff's injury was assessed at 35% of a Most Extreme Case pursuant to section 16 of the Act, currently $193,000.
As is common, past out-of-pocket expenses were agreed at the hearing between the parties at $22,638.07. A lump sum for future out-of-pocket expenses was assessed at $27,583, equating to $28.85 per week for medical review and medication.
Past and Future Gratuitous Care 1
The plaintiff required 40 hours of gratuitous care per week for the first four months post fall. The plaintiff then required 7 hours of gratuitous care per week to the hearing.2 The plaintiff required seven hours per week of gratuitous care for the foreseeable future.3
Care of Dependants4
Her Honour was satisfied that although it had become harder for the plaintiff to fulfil the needs of her children, the required tasks were able to be carried out by the plaintiff's husband or the children themselves. No award was made.
The plaintiff failed to establish the profitability of her business prior to the fall and that her injury had any real impact on her ability to work. She had dedicated the years prior to her fall to raising her children. On this basis past economic loss was assessed at $20,000 and future economic loss was assessed at $50,000. No allowance for lost superannuation was made.
The assessed value of the plaintiff's claim was therefore in the region of $577,608.
IMPACT FOR INSURERS
This is a useful decision for public liability insurers because it confirms that an insured occupier is only required to take reasonably sufficient precautions to avoid the risk of harm.
It also makes plaintiffs far more accountable for their actions and should assist with the defence of future claims.
1 Pursuant to section 15 of the Act
2 Approximately, $79,000 using a gratuitous rate of $27.70 for approximately 2,852 hours.
3 Approximately, $185,387 using a gratuitous rate of $27.70 and a 5% table multiplier of 956.1.
4 Pursuant to section 16 of the Act
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