Barry.Nilsson. successfully defended1 a claim brought against Brisbane City Council (along with the occupier and architect) following a tragic accident in the carpark of Hungry Jack’s Annerley in April 2012. As the plaintiff entered the carpark he drove through a pedestrian crossing. As he did so, his vehicle struck and fatally injured a 3 year old child. The plaintiff developed a psychiatric injury as a result of the accident.
- Whether Competitive Foods Australia Pty Ltd t/as Hungry Jack’s (Hungry Jack’s) breached its duty of care and if so, whether that breach was causative of the plaintiff’s psychiatric injury;
- Whether Brisbane City Council (Council)and Wayne Blow & Associates Pty Ltd (the Architects) owed the plaintiff a duty of care;
- Whether the plaintiff was contributorily negligent.
In 1999, Hungry Jack’s engaged the Architects to design an extension and modifications to its existing store at Annerley. A development application was submitted to Council. Council requested the Architects submit amended drawings which included a pedestrian crossing from the eastern boundary of the site into the restaurant and non-discriminatory access for disabled people. Council subsequently requested that the driveway be modified to comply with C1 driveway dimensions. The final plans and drawings for the redevelopment works were approved by Council in May 2000.
The plaintiff alleged the accident was caused by the negligent design and approval of the carpark and driveway, including the location of the pedestrian crossing.
The Decision at Trial
Hungry Jack’s admitted that it owed the plaintiff a duty to take reasonable care for the safety of people entering its property to minimise the risk of foreseeable injury (including psychiatric harm). His Honour Justice Jarro held that Council did not owe the plaintiff a duty of care in the exercise of its statutory approval powers (including the imposition of conditions) in relation to the development of the Hungry Jack’s site between September 1999 – May 2000. His Honour also held that whilst the Architects owed a duty of care to exercise reasonable care and skill in the provision of architectural services in respect of the matters within the scope of their instructions, the duty of care did not extend to avoiding causing pure psychiatric harm.
With respect to both Council and the Architects, His Honour noted that a legally recognised duty of care to avoid pure psychiatric injury is in a different category to a duty of care to avoid reasonably foreseeable physical injury.
His Honour was critical of the approach taken by the plaintiff’s expert, Mr John Jamieson, engineer. His Honour’s primary concern was that Mr Jamieson did not seek information directly from the plaintiff but rather, relied on the letter of instruction from the plaintiff’s solicitors. His Honour ultimately preferred the evidence of the defendants’ experts, noting they were competing and sufficiently corroborative.
His Honour was satisfied that, in respect of design, Hungry Jack’s discharged its duty of care by retaining a skilled contractor. Taking into consideration the findings on breach of duty and causation vis a vis Council and the Architects, His Honour found that Hungry Jack’s did not breach its duty of care owed to the plaintiff. Insofar as Council was concerned, his Honour noted the relevant schemes/standards were complied with, parked vehicles did not amount to obstructions, the allurement of the playground was irrelevant and the location of the crossing was optimal. Accordingly, there was no breach of duty by Council. His Honour also found there was no breach of duty by the Architects. The Architects adhered to the requirements of the applicable standards in designing the modifications to the carpark (including the position of the pedestrian crossing) and in doing so, acted in a way accepted as competent professional practice.
Having regard to the CCTV footage of the accident and the evidence of three independent lay witnesses, his Honour found the accident was caused by a combination of the child suddenly darting out into the path of the plaintiff’s vehicle and the plaintiff failing to observe the sudden emergence of the child. His Honour therefore held that none of the alleged deficiencies described by the plaintiff (including the angle of the driveway and the distance between the driveway and pedestrian crossing) materially contributed to the incident.
His Honour was satisfied the plaintiff was simply not looking where he was going. He described the plaintiff’s actions as “careless”. Had the plaintiff succeeded, His Honour would have reduced his damages by 90%.
Implications for you
This case reinforces a number key principals – firstly, a plaintiff will have significant hurdles to overcome to establish that a council will owe a duty of care in its capacity as a planning approval council (compared to in its capacity for example, as a road authority). For an occupier, where the allegations of negligence relate to the design of the premises, the retention of skilled contractors will be sufficient for the occupier to discharge its duty of care. The Court also reaffirmed the principal that a duty of care to avoid pure psychiatric injury is in a different category to a duty of care to avoid reasonably foreseeable physical injury. Lastly, the judgment reinforces the importance of ensuring that expert reports comply with the strict requirements of the Uniform Civil Procedure Rules 1999. Large portions of the reports of the plaintiff’s liability expert (including one report in its entirety) were excluded on the grounds of inadmissibility.
1The decision is being appealed.