Kelly v Trentham Holdings P/L & Ors [2012] QDC 141

The female plaintiff (now 32 years) injured herself whilst exiting the Chalk Hotel via a bark covered garden bed ‘pathway’ to exit on Herbert Street, whilst intoxicated (2 bottles of wine).  She suffered a fractured ankle with cuts and abrasions. The hotel subsequently constructed a fence across the potential pathway. The plaintiff’s claim was dismissed.

The duty of care under s.9 of the Civil Liability Act (CLA) owed in such circumstances was found by Dorney DCJ to not be discernibly different to that expressed at common law [13].

The matter for determination was the reasonableness of the response to the risk – looking prospectively and in particular the ‘obviousness’ of the risk (ss.13 -15 CLA) and the plaintiff’s intoxication (ss.23, 24 and 46 CLA). His Honour was guided by various decisions of the Court of Appeal in NSW as to previous interpretations of analogous provisions [27 & 28]. His Honour formed the view it was.

His Honour considered the plaintiff and her partner’s credibility were affected by consumption of alcohol and preferred the evidence of the security guard, despite some irregularities in the incident report completed by the security guard. Furthermore, the plaintiff’s credibility was not assisted by several discrepancies in the evidence where she “forget” certain matters, such as competing in a 10km race or the demonstrated aggressive behaviour of the plaintiff’s partner.

Dorney DCJ considered the plaintiff’s evidence as to where she was and why was speculative. The confusion was not assisted by there being no witnesses. In the end, His Honour concluded:

[65] I conclude that a more probable inference of the mechanism of the injury from the evidence that I have accepted as basal facts is that the plaintiff took the route she did because of her confusion (i.e. being “lost” due to her consumption of alcohol). I conclude that she made no rational decision to take that avenue upon based upon an intention to catch a taxi at Stanley Street. I reach that conclusion because, accepting at least that part of her evidence that acknowledged that she saw lights on Hubert Street, that she wanted to get a taxi, and that the lighting was really very good (disclosing a clear access to Hubert Street) – particularly in circumstances where the plaintiff herself concedes that the bark covered ground over which she proceeded to travel was a “crazy” way to go – I find that she “blindly” proceeded to enter on to the bark covered ground and, given the nature of her footwear, became unbalanced, or otherwise without any real attention to it walked to the place where she fell.

[66] Although there are other scenarios open, in the circumstances of this case I conclude that they are merely speculative, and that the one which I have adopted is the more probable of any rational hypothesis.

[71] In the scenario that I have accepted, no reasonable person would have attempted to take the path that the plaintiff did, particularly given the state of lighting which permitted, if a person was capable of doing so, easy observation of the surrounding area and its total unsuitability as a means of access. It is difficult to think of a greater contrast between the paved area of the car park and the bark covered area, particularly in circumstances where the lighting and unobstructed view of a person wishing to leave the car park of the Office Premises could either move directly towards Hubert Street or turn back to the way from which that person came and then easily observe Reid Street.

..

His Honour considered the erection of the fence did not amount to an admission or indication of fault because the bark covered ground was readily observable and there were well lit alternative paths.

As to the nature of a warning sign His Honour noted the content was not specifically pleaded and unlikely to be effective in the circumstances having regard to the intoxicated state of the plaintiff, together with his finding that it was an obvious risk. [81]

However, His Honour was not prepared to find volenti or the voluntary assumption of risk [88] – [90].

In considering the impact of the consumption of alcohol His Honour concluded it did not reduce the duty of care owed, but rather it could be decided on the basis of knowledge of the person knew or ought to have known at the time (s.23 CLA).  However, having regard to the finding of no liability on the part of the defendants His Honour declined to make a specific finding of contributory negligence. [95] – [106]

Whilst the claim was dismissed, damages were notionally assessed as follows:

1. General damages $11,000.00

2. Past economic loss $2,636.90

3. Interest on past economic loss $462.84

4. Future economic loss $12,250.00

5. Past loss of superannuation $237.32

6. Future loss of superannuation $1,102.50

7. Special damages $4,083.20

8. Interest on special damages $33.23

9. Future expenses $3,150.00

TOTAL $34,955.99

Brisbane Barrister – David Cormack

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