After reversing his car into a level two space of a hotel car park, Thomas Lee and his wife Michelle – on their way to dinner at a nearby restaurant – had second thoughts about whether it should be reversed back further.
Thomas got back in the car. He moved it back slowly but as he applied more acceleration, a “wheel stop” rotated, allowing the vehicle to continue backwards towards the perimeter railing. The car kept going at no more than about 5 kph, with Michelle watching helplessly as it disintegrated the barrier on impact and in an instant tumbled out of control to the mall below.
Michelle rushed down to her husband’s side, arriving moments later. She saw a rush of blood from his head and heard a “gurgle” as she stroked his unconscious face. He died a short time after an ambulance had rushed him to hospital.
In the subsequent investigation of the March 2006 tragedy, the wheel stop in the parking space was discovered to have not been properly fixed to the carpark floor and “did not provide the tactile resistance that Mr Lee was expecting” when he reversed.
It also established the railing barrier was found to be “wholly inadequate” to withstand a car’s impact as intended. Michelle commenced a lawsuit for dependency damages and for her own psychological injury against the hotel that operated the car park and also the Sydney City Council for failing to adequately perform its inspection and approval duties.
Justice Robert Beech-Jones ruled the council owed users of the car park a duty of care in exercising those functions and powers and it was clearly foreseeable that such injury might occur in the failure to exercise them in a reasonable manner. In his view, “the possibility of a vehicle colliding with the railing was clearly foreseeable and ‘not insignificant’.”
The council failed in its duty to be satisfied that the railing as constructed complied with the relevant ordinance because the cursory inspection did not address the technical requirements for the structure probably because its inspectors had no engineering or equivalent qualifications. Nor did it address the construction plans which detailed how the railing was to be built.
In its defence the council argued it should be granted Civil Liability immunity because of budgetary restraints on its resources and the exceedingly “broad range of activities” for which it was day-to-day responsible.
“Nothing,” the court ruled, “in Civil Liability Act section 42 [Queensland equivalent: s 35], detracts from the conclusions that the council owed a duty of care”.
The council also initially defended on the basis of Civil Liability Act section 43 but “it was accepted that s 43 only concerns actions for breach of statutory duty” and Ms Lee’s case was in negligence. In respect of s 43A the court was satisfied that “the act or omission was so unreasonable that no authority could properly consider the act or omission to be a reasonable exercise of powers”: “The perimeter railing was a significant safety feature.
The physical safety of users and occupants of the building – a large car park in the middle of a large and busy city – was paramount. It was seriously neglected”. [Queensland’s CLA s 36 contain a broad immunity that reflects both NSW s 43 and 43A.] It followed in the court’s view that any conclusion they reached about the railing’s compliance “was unreasonable”.
It also considered the council to be in breach of its duty in respect of the power to license the operator of the car park by reason of no adequate inspection having ever occurred. The outcome had proper inspections been made ought to have been not to issue a certificate of classification to allow the use of the building and not to license the car park.
Judgment delivered today in Ms Lee’s favour on both her psychological injuries and for the loss of financial support from her husband. “In the six years since her husband’s death, Ms Lee has already been hospitalised. She has suffered an almost complete psychological collapse affecting every part of her life, including her promising career as a speech pathologist. Her prospects of recovery are low.”
His Honour assessed Michelle Lee’s damages at $2.9 million and apportioned damages 75% against the Carlton Crest Hotel and 25% against the council.
Lee v Carlton Crest Hotel (Sydney) Pty Ltd  NSWSC 1280 Beech-Jones J 30 October 2014 – view decision