What happened

In June 2003, the plaintiff took the shortest route from the shopping-centre car park towards a nearby hotel by ascending stairs leading to a council park. Charity bins beside the stairs blocked light from the centre; believing she had reached the landing, she let go of the handrail, tripped and sustained a serious left shoulder injury that later required replacement surgery.

The issues

The Court considered whether the centre owner occupied the stairs and whether the council, as roads authority, owed and breached duties concerning the inadequate illumination. It also addressed causation, the plaintiff's decision not to use another route, her conduct once she encountered darkness, and the proper allocation between concurrent tortfeasors.

The court's decision

Both defendants were held to have breached their duties and caused the injury, but the plaintiff was found 50 per cent contributorily negligent for releasing the handrail and moving forward in the dark. Judgment was entered for historical AUD 168,135.85, with responsibility between the defendants apportioned two-thirds to the centre owner and one-third to the council.

Understanding the figures

The primary assessment of historical AUD 336,271.70 was reduced by 50 per cent for contributory negligence, producing judgment of AUD 168,135.85. The two-thirds/one-third allocation governed contribution between the defendants and did not create additive recoveries for the plaintiff.

What this case shows

The decision shows that a business may be an occupier without exclusive possession where it constructed, used and invited people to use access over another owner's land. It also demonstrates that defendants may create the dangerous situation yet still obtain a substantial reduction when the claimant fails to take reasonable care after becoming aware of it.

Why another case may differ

The result depended on longstanding knowledge of the bin position and poor lighting, together with inexpensive precautions such as moving the bins or installing a light. The later Court of Appeal decision in Cavric v Willoughby City Council [2015] NSWCA 182 did not follow this case's s 249 approach to identifying a public road, so that aspect should not be treated as an unqualified current proposition.

Applying it to your claim

Different facts, evidence or procedures, an appeal, or a change in the law may affect how this decision applies. This is general information, not a report of a case handled by Park & Co Lawyers.

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