NEGLIGENCE – OCCUPIERS LIABILITY – fall at bowling alley – whether breach of duty of care – whether damage caused by breach of duty and/or breach of contract – whether voluntary assumption of risk – whether contributory negligence
EVIDENCE – circumstantial evidence in civil case
DAMAGES – quantum of plaintiff’s claim
 This is an action by the plaintiff for damages for personal injuries alleged to have been caused by the negligence and/or breach of contract by the defendant arising from an incident, which occurred on 23 August 2008 at the Gladstone Ten Pin Bowling Alley. On my findings the plaintiff slipped on a slippery bowling lane surface when the lights were dimmed for “glow in the dark” bowling. She fractured her femur during the fall and thereafter suffered loss and damage to the extent of $260,990.05 (before any reduction for contributory negligence).
 I have found that the defendant is liable in negligence and in breach of contract for the incident. I have also found the plaintiff contributed to the incident to the extent of 40%.
 In reaching my decision I have had regard to the evidence and the submissions made by counsel. I have also had regard to the legal principles I have discussed below.
 I note that the plaintiff is required to prove her case on the balance of probabilities and that contributory negligence must be proved by the defendant.
Factual findings – liability
 The defendant relied on the case of Miller v Council of the Shire of Livingstone and Anor  QCA 29. I consider Miller to be an entirely different case to the present one. In Miller there were no eyewitnesses to the event nor did the plaintiff have any recollection as to it. Many reasons consistent with no liability could not be excluded (see  and -). I am not choosing between guesses in this case.
 Circumstantial evidence may be employed in civil cases (see Luxton v Vines  HCA 19; (1952) 85 CLR 352). Examples of the employment of such a principle are to be found in Holloway v McFeeters  HCA 25; (1956) 94 CLR 470 and Nominal Defendant v Puglisi (1984) 54 ALR 636.
 In this case I am able to exclude alternative possibilities. There was no obstruction which would have caused the plaintiff to fall. She was not affected by alcohol. She was sturdy on her feet before the fall. This removes the possibility posed by Mr Carswell in re-examination.
 The most rational inference open is that she slipped on the slippery surface in light of her description of being airborne her landing on her backside and her feet being on the lane. Nothing else would have caused this on the evidence.
 In this case I find the foul line was not able to be readily seen; the plaintiff took two steps and then she slipped on the slippery delivery lane and fell and suffered the fractured femur. I find there was no oral warning prior to the accident of the dangers involved. I find that the warning sign in the dark was not readily able to be seen.
 I also find that the accident was likely to be avoided if the lighting was better (as per Exhibit 20); and/or the foul line was a light colour. The green warning sign (which was later erected) and/or an oral warning as to the dangers given prior to the incident would have assisted as well.
 Accepting there may be some limitations concerning photographs I find that the conditions on the night of the accident were more like those depicted in photograph 5 (p 27 of Exhibit 1) than with the better lighting like in Exhibit 20.
 I do accept the plaintiff had some experience in ten pin bowling and accept that like many sports the delivery of the ball whilst intuitive requires the mind to process many things including staying away from the polished laneway. There are many activities in life where one’s experience leads one to take in a variety of matters an process them immediately. Driving is one example.
 I accept she did attempt (unsuccessfully) to look after her own safety by lining herself up with a teenager prior to ball delivery because she could not see the line. The plaintiff did not consider there was a risk of falling because the teenager did not and no-one else fell. But there was a risk of injury and this situation was created by the defendant. As I will discuss later though I do consider the plaintiff contributed to this by failing to keep a proper lookout (e.g. having regard to the gutters) bearing in mind her previous bowling experience.
 The elements of the cause of action in negligence are duty of care, breach of the duty and that damage was caused.
Duty of care
 As noted above the existence of the duty of care is admitted by the defendant (para 6 of the defence).
 I note that in Meandarra Aerial Spraying Pty Ltd and Anor v GEJ Geldard  QCA 315 at  it was said that Section 9(1) (b) of the Civil Liability Act 2003 (Q) (“CLA”) did alter the common law as expressed in Wyong Shire Council v Shirt  HCA 12; (1980) 146 CLR 40. At  it was noted that the words “not insignificant” are used rather than “not far-fetched or fanciful” and was thought to be a more demanding test. Certainly this was the approach taken in Council of the City of Greater Taree v Wells  NSWCA 147, a decision accepted by the Queensland Court of Appeal in State of Queensland v Kelly  QCA 27.
 Indeed in Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009) 239 CLR 430, the High Court made clear that the proper starting point for considering arising questions of breach and causation, was the Civil Liability Act 2002 (NSW) as well as the other statutes governing liability in that case. Their Honours stated that, “If attention is not directed first to the Civil Liability Act, and then to the Liquor Act, there is serious risk that the inquiries about duty, breach and causation will miscarry” (at ).
 Regardless the admission by the defendant that it owed a duty of care is well founded.
Breach of duty of care
 The next issue is whether there has been a breach of the duty of care.
 Sections 9 to 11 of the CLA provide:
“9 General principles
(1) A person does not breach a duty 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 reasonably to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the position of the person would have taken the precautions.
(2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (among 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.
10 Other principles
In a proceeding relating to liability for breach of duty happening on or after 2 December 2002—
(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible; and
(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done; and
(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in relation to the risk and does not of itself constitute an admission of liability in connection with the risk.
11 General principles
(1) A decision that a breach of duty caused particular harm comprises the following elements—
(a) the breach of duty was a necessary condition of the occurrence of the harm (factual causation);
(b) it is appropriate for the scope of the liability of the person in breach to extend to the harm so caused (scope of liability).
(2) In deciding in an exceptional case, in accordance with established principles, whether a breach of duty—being a breach of duty that is established but which can not be established as satisfying subsection (1)(a)—should be accepted as satisfying subsection (1)(a), the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party in breach.
(3) If it is relevant to deciding factual causation to decide what the person who suffered harm would have done if the person who was in breach of the duty had not been so in breach—
(a) the matter is to be decided subjectively in the light of all relevant circumstances, subject to paragraph (b); and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4) For the purpose of deciding the scope of liability, the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party who was in breach of the duty.
12 Onus of proof
In deciding liability for breach of a duty, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation”
 I also note the High Court has cautioned not to assess matters with the wisdom of hindsight but to assess matters as they were before the injury (see Vairy v Wyong Shire Council  HCA 62; (2005) 223 CLR 422).
 In my opinion the risk here was not only foreseeable but it was significant.
 The defence revealed that oil is placed on the floor to make the lane slippery. Moving at some speed with a heavy bowling ball in one’s hand would be particularly dangerous on a slippery surface. I consider therefore there was a real chance someone could fall over if the lights were darkened and the foul line crossed. There is also Mr Heading’s evidence of falls occurring over the line (T3-71.40).
 In those circumstances I consider a reasonable person in the defendant’s position should have taken measures to ensure that the foul line was clearly visible in this glow-in-the-dark bowling (e.g. use of a reflective or light coloured strip) and/or better lighting. It was not on my findings.
 Serious injury could result from a fall on the slippery surface. I have specifically considered each of the matters mentioned in s 9(2) CLA.
 I consider that Pollard v Trude  QCA 421 to be a different one from this case. For a start a warning was given there (by one golfer to another of a wayward shot) and second the case concerned a game of golf where the golfers involved were experienced and fully understood the risks and rules of the game.
 I find that:
(a) the risk of injury was foreseeable (s 9(1)(a) CLA);
(b) the risk was not insignificant (s 9(1)(b) CLA);
(c) in the circumstances a reasonable position in the defendant’s position would have taken precautions to avoid the risk i.e. to make the line visible and/or start of the polished lane clearly visible by e.g. a lighter line or better lighting. (s 9(1)(c) CLA);
(d) there was a likelihood harm would occur if care were not taken (s 9(2)(a) CLA);
(e) such harm could be serious (s 9(2)(b) CLA);
(f) the burden of avoiding the risk of injury was not great (s 9(2)(c) CLA) i.e. the measures put in place by Mr Carswell and/or the placement of a white line;
(g) I have had regard to the social utility of the activity (s 9(2)(d) CLA).
 I have also specifically had regard to ss 10, 11 and 12 of the CLA and find that the injury was caused by the breach of duty of the defendant.
 I find that:
(a) the breach of the duties owed by the defendant to the plaintiff was in this case a necessary condition leading to the femur fracture (s 11(1)(a) CLA);
(b) it is appropriate for the scope of liability of the defendant to extend to the harm caused in this case (s 11(1)(b) CLA);
(c) in case it is necessary pursuant to s 11(2) CLA I find responsibility for the harm should be imposed on the defendant because of the risk of a serious injury occurring because of the darkened condition of the bowling alley;
(d) in deciding factual causation, in light of all the relevant circumstances, it seems to me the defendant’s conduct in failing to make the foul line visible caused the injury (s 11(3) CLA);
(e) by reason of the foregoing responsibility for the harm should be imposed on the defendant (s 11(4) CLA).
 I also note that merely because another incident had not occurred during glow in the dark bowling does not mean the risk is insignificant (see Jandson Pty Ltd v Welsh  NSWCA 317 at – ).
 I consider that the plaintiff has made out the particulars of negligence in 6(a) and (b) of the statement of claim.
Voluntary assumption of risk
 However, of course the defence of volenti is to be considered as it has been raised by the defendant.
“13 Meaning of obvious risk
(1) For this division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.
(2) Obvious risks include risks that are patent or a matter of common knowledge.
(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.
(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.
(5) To remove any doubt, it is declared that a risk from a thing, including a living thing, is not an obvious risk if the risk is created because of a failure on the part of a person to properly operate, maintain, replace, prepare or care for the thing, unless the failure itself is an obvious risk.
Examples for subsection (5)—
- A motorised go-cart that appears to be in good condition may create a risk to a user of the go-cart that is not an obvious risk if its frame has been damaged or cracked in a way that is not obvious.
- A bungee cord that appears to be in good condition may create a risk to a user of the bungee cord that is not an obvious risk if it is used after the time the manufacturer of the bungee cord recommends its replacement or it is used in circumstances contrary to the manufacturer’s recommendation.”
“14 Persons suffering harm presumed to be aware of obvious risks
(1) If, in an action for damages for breach of duty causing harm, a defence of voluntary assumption of risk is raised by the defendant and the risk is an obvious risk, the plaintiff is taken to have been aware of the risk unless the plaintiff proves, on the balance of probabilities, that he or she was not aware of the risk.
‘Voluntary assumption of risk’ is sometimes stated as ‘volenti non fit injuria’.
(2) For this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk.”
“16 No liability for materialisation of inherent risk
(1) A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk.
(2) An inherent risk is a risk of something occurring that can not be avoided by the exercise of reasonable care and skill.
(3) This section does not operate to exclude liability in connection with a duty to warn of a risk.”
 Whilst the plaintiff may have been aware of the general risk of slipping over on the lane, in my view the plaintiff has proved that in the circumstances in which she found herself (i.e. the poor lighting, absence of clear demarcation and/or absence of warning) there was no obvious risk of slipping over and receiving serious injury at the time of the injury. While she had bowled before, she had never encountered this problem previously. Also as I found previously, the plaintiff did not consider there to be a risk on this occasion, as she thought she had safely lined herself up with the teenager on the night in question. Under normal conditions i.e. with normal lighting the risk would have been obvious, but bearing in mind the conditions under which she bowled, the risk would be concealed.
 I note that the CLA has altered the common law as to proof of volenti (see Carey v Lake Macquarie City Council  NSWCA 4 at . I note also though that “the position of the plaintiff” comprehends the particular circumstances in which the risk materialised and the harm was suffered see (Carey at ).
 In Carey at  it was accepted that a person in the position of the appellant was an experienced cyclist in his 50s with knowledge of the presence of a bollard on the lower path. It would have been obvious to a reasonable person in that position that riding along the lower path in the dark would involve the risk of hitting unexpected obstacles. The defendant was to prove that the plaintiff voluntarily accepted the risk (see . In Carey the plaintiff simply did not think about it.
 In this case I do not find in favour of the defendant on the grounds of voluntary assumption of risk.
 I find that:
(a) there was not an obvious risk because the foul line did not clearly delineate the non-slippery area from the slippery area at the time (s 13 CLA);
(b) the plaintiff has proved she was not aware of any obvious risk at the time (s 14(1) CLA);
(c) there was no inherent risk here as there was no risk of something occurring which could not be avoided by the exercise of reasonable care and skill (s 16(1) and (2) CLA).
 I do not consider this to be an obvious risk like one involving uneven paving, tree roots or a hole (see Brodie v Singleton Shire Council: Ghantous v Hawkesbury City Council  HCA 29; (2001) 206 CLR 512).
 I note at pp 580-581 of Brodie the court noted that some allowance must be made for inadvertence and certain dangers may not be perceived because of inadequate lighting.
 In Council of the City of Greater Taree v Wells (supra) I note the court at  considered a chain that was not visible to a cyclist taking reasonable care until shortly before it, is not an obvious risk. In State of Queensland v Kelly (supra) the risk of suffering serious injury diving into the lake was not obvious despite the plaintiff passing two warning signs.
 In Carey v Lake Macquarie City Council (supra) it was held that where the reflective strip had peeled off on a bollard and the accident occurred at night, the risk could not be said to be obvious. In Carey the plaintiff collided with a bollard when riding on his bicycle on a concrete path in the dark. The trial Judge found for the defendant. The appeal was allowed and contribution was assessed at 50%. The plaintiff was a very experienced bike rider in the dark and knew the area well. It was held at  that although the bollard was obvious in the daytime, by putting it in the middle of the path posed a significant hazard particularly at night. It was foreseeable that reflector tape would be missing at times. At  it was held the trial Judge ought to have found the defendant breached the duty of care owed to the plaintiff.
The warning – paragraph 6(c) – particular issues
 On the issue of a warning (para 6 (c) of the statement of claim), I am also satisfied this particular is made out. Relevant to this is a consideration of s 15 of the CLA.
 This provides:
“15 No proactive duty to warn of obvious risk
(1) A person (defendant) does not owe a duty to another person (plaintiff) to warn of an obvious risk to the plaintiff.
(2) Subsection (1) does not apply if—
(a) the plaintiff has requested advice or information about the risk from the defendant; or
(b) the defendant is required by a written law to warn the plaintiff of the risk; or
(c) the defendant is a professional, other than a doctor, and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant.
In relation to paragraphs (a) and (b), see section 21 for the duty of a doctor to warn of risk.
(3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection.
(4) In this section—
a professional has the same meaning as it has in division 5.”
 It is true the plaintiff conceded that a warning might be more relevant to a new bowler than to her and that a warning would be superfluous (T2-29.15) but in my respectful opinion this evidence was really given with the benefit of hindsight.
 It is really a combination of things. Of itself the warning might not have made a difference, but in combination with better lights and/or a light coloured line; with a reflective warning and/or an oral warning there was a far greater chance the accident would have been avoided.
 However, even if I am wrong as to my conclusions as to particular 6(c), I consider the accident would have been avoided by either a lighter coloured foul line or better lighting like that which was subsequently installed (paragraph 6 (a) and (b) of the Statement of Claim).
 On my findings the better lights and readily visible green sign (later installed) show the measures which could have been taken.
 I am satisfied:
(a) there was no obvious risk at the time (s 15(1) CLA); and
(b) in this case an oral warning (like one given later) should have been given or the written warning made far more obvious and readable in the darkened condition (such as the green sign) .
Conclusion on negligence
 I find that the plaintiff has proved on the balance of probabilities that a duty of care was owed, that this duty was breached and that damage was caused to her by that breach. I therefore find the defendant is liable in negligence. I make it clear I have not found the installation of the better lights or the green sign or the later oral warning as evidence of negligence of itself (s 10(c) CLA). But their installation surmounts the defence argument that no expert evidence was called and provides evidence of alternate measures which should have been taken and which would have avoided the risk of injury.
“10 Apportionment of liability in case of contributory negligence
(1) If a person (the claimant) suffers damage partly because of the claimant’s failure to take reasonable care (contributory negligence) and partly because of the wrong of someone else—
(a) a claim in relation to the damage is not defeated because of the claimant’s contributory negligence; and
(b) the damages recoverable for the wrong are to be reduced to the extent the court considers just and equitable having regard to the claimant’s share in the responsibility for the damage.
(2) Subsection (1) does not operate to defeat any defence arising under a contract.
(2A) If a contract or enactment providing for the limitation of liability applies to the claim, the amount of damages recoverable by the claimant because of subsection (1) is not to exceed the maximum limit applying to the claim.
(3) Where damages are recoverable by any person by virtue of subsection (1) subject to such reduction as is therein mentioned, the court shall find and record the total damages which would have been recoverable if the claimant had not been guilty of contributory negligence.”
 Sections 23 and 24 of the CLA provide:
“23 Standard of care in relation to contributory negligence
(1) The principles that are applicable in deciding whether a person has breached a duty also apply in deciding whether the person who suffered harm has been guilty of contributory negligence in failing to take precautions against the risk of that harm.
(2) For that purpose—
(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person; and
(b) the matter is to be decided on the basis of what that person knew or ought reasonably to have known at the time.
24 Contributory negligence can defeat claim
In deciding the extent of a reduction in damages by reason of contributory negligence, a court may decide a reduction of 100% if the court considers it just and equitable to do so, with the result that the claim for damages is defeated.”
 In light of the plaintiff’s experience of ten pin bowling in my opinion the plaintiff has failed to take care of her own safety. She ought to have taken more care where she stepped. I take into account the previous bowling experience she had (see Exhibit 19 at pp 75 and 76).
 I refer to her evidence at - above. Having a “sense of the lane” was not enough for the plaintiff to look after her own safety. She also failed to pay sufficient regard to the gutters (see T2-61).
 Needless to say there is some tension between finding a defendant liable and then finding contributory negligence (see e.g. Reck v Queensland Rail  QCA 228 at ) however this is clearly contemplated by the legislation. As was said in State of Queensland v Kelly (supra) at  “the finding of contributory negligence is not in conflict with the finding that the risk which materialised was not an ‘obvious risk’ within the meaning of s 13 [CLA]”.
 In this regard I note that which the High Court stated in Thompson v Woolworths (Qld) Pty Ltd  HCA 19; (2005) 221 CLR 234 at –  where it was noted that different principles apply as to contributory negligence by employees and that relevant was the plaintiff’s being accustomed to waiting for assistance to move the bins.
 I also consider Carey v Lake Macquarie City Council  NSWCA 4 to be an instructive case. I note that 50% contribution was assessed in this case.
 I otherwise have had regard to the decisions relied on by the parties.
 In Leyden v Caboolture Shire Council  QCA 134 Jerrard JA dissented but assessed a 50% contribution. In that case the plaintiff was riding a BMX bike on a track constructed by the defendant with bumps as is usual for such a track. However outsiders not under the control of the defendant had modified a jump. The plaintiff had used this jump on 5 previous occasions knowing of the risk. The majority dismissed the claim on the grounds of volenti.
 In Lynch v Kinney Shoes (Australia) Ltd and Ors  QCA 326 again the majority dismissed the appeal, Atkinson J in dissent would have found 50% contribution. In that case the Appellant tripped over a platform in a shop. The Appellant failed to keep any proper lookout.
 In Felhaber v Rockhampton City Council  QSC 23 the trial Judge found for the defendant. This was a case where the plaintiff swung on a rope in a tree on the banks of the Fitzroy River. He then dived into the water head first and broke his neck on the river bed. On the notional apportionment 50% was assessed.
 In Del Romano v Turner  VSCA 166 50% was assessed where a motor was dropped on a plaintiff at a building site. It was arguable the plaintiff himself instigated the unsafe system and acquiesced in a system which lead to the injury.
 In State of Queensland v Kelly (supra) 15% was assessed. However the warning signs did not fully point out the risks involved and the plaintiff had gone down the dune in question a number of times previously without mishap. Further the lion’s share of responsibility fell on the defendant as it was aware of the dangers involved in running down the slope into the water (there had been 18 incidents, including serious spinal injuries, in the previous 17 years and various recommendations to improve the situation including the warnings had not been implemented).
 I consider that Anderson v AWWW Pty Ltd  QDC 155; Samways v Workcover  QSC 127 and Reck v Queensland Rail (supra) do not greatly assist as the principles in employer/employee actions differ.
 In Rogers v Interpacific (Aust) Pty Ltd  QSC 139, no deduction for contribution was made. However that case involved a plaintiff and his son who were inexperienced with jet skiing.
 Littlejohn v Julia Creek Town and Country Club  QDC 116, is a different case to the present one. In that case there was no evidence the plaintiff was aware of the change in floor level.
 In Alvarenga v Mirvac Real Estate Pty Ltd and Anor  NSWDC 26, 10% contribution was assessed. In that case the plaintiff slipped on a freshly mopped floor. Originally the trial judge thought he would assess contribution at 25%, but reduced it to 10% because the plaintiff did attempt to grab a handrail.
 In Boral Bricks v Cosmidis (No 2)  NSWCA 139 at –  the New South Wales Court of Appeal noted that in assessing contribution one has to compare the culpability of the parties and the importance of their acts in causing the damage.
 I consider this matter falls some where between Carey and Thompson but closer to Thompson.
 In my opinion the plaintiff contributed to her own injuries to the extent of 40%.
Breach of contract
 The plaintiff alternatively alleges that the duties breached were owed pursuant to contract.
 In this case the plaintiff paid an entrance fee to play bowls. I find there was a contract between the parties.
 In those circumstances I find that the defendant owed the duties pleaded to the plaintiff (see Australian Racing Drivers Club v Metcalf  HCA 80; (1961) 106 CLR 177 and Calin v Greater Union Organisation Pty Ltd  HCA 23; (1991) 173 CLR 33 at ).
 I find that these duties were breached for the reasons I gave concerning the claim in negligence. I note that s 4 CLA provides that the Act covers all breaches of duty (aside from some mentioned in s 5 CLA).
 The dictionary in schedule 2 defines duty as:
(a) a duty of care in tort; or
(b) a duty of care under contract that is concurrent and coextensive with a duty of care in tort; or
(c) another duty under statute or otherwise that is concurrent with a duty of care mentioned in paragraph (a) or (b).”
 However I still find that contributory negligence reduces plaintiff’s award for breach of contract (see Astley v Austrust Ltd (1999) 197 CLR 1).
Brisbane Barrister – David Cormack