Written by Peter CarterFebruary 28, 2012
It took two trials and as many appeals before three judges, last week finally put Sonia Littlejohn’s bitterly contested compensation award against the Julia Creek Town & Country Club beyond further dispute.
Successful to the extent of $160,000 in her initial June 2010 three day trial, the Court of Appeal then ordered a re-trial that occurred 12 months later, on liability issues only. In both hearings, Littlejohn claimed that on exiting the premises – where she, her husband and her friend had made a half-hour refreshment stop one sunny morning in May 2004 – “she was confronted with glare thrown up from the floor and put her hand up to shield her gaze”.
Her case was remarkable only because it was merely a 25 mm height differential at the interface of the floor surfaces of a tiled area adjacent to the bar and a lower carpeted area, where Sonia who at that very point was struck with the glaring “reflection of sunlight streaming in from an ‘undressed’ window”, stumbled, fell and sustained serious injuries.
As is their habit, the insurer for the club insisted that the plaintiff should have been looking where she was walking and that a mere one-inch floor surface differential was not hazarding enough to create any liability to patrons.
Moreover, it contended, the glare from the floor was a “recent invention” which Littlejohn only weaved into her story 4 years following the event after a safety consultant, instructed by her lawyers, had conducted a site inspection and prepared a forensic report that made reference to it.
The absence of this detail from her Notice of Claim, they said – the only detail which could possibly lend credence to her claim – showed Littlejohn to be inconsistent and unreliable to the extent that her evidence should not be accepted.
The insurer’s second appeal point was the trial judge had not given sufficient weight to the opinions of their ergonomist but rather had preferred almost exclusively and without sufficient evident reason, the views of the safety expert commissioned by the plaintiff.
Thirdly, it argued, the encounter with the glare was such a statistically rare event that it was something that the law did not require the club to prevent against. But liable they were, on the second hearing, as in the first and this was upheld in the second appeal decided last week.
A prudent occupier should have eliminated the height differential altogether; better illuminated the location; shielded the window glare with curtains; and highlighted the edge of the tiles with a high visibility strip. Both the glare and the floor surface were hazards that could – however infrequently – foreseeably cause injury.
Of particular relevance – creating a higher duty on the part of the occupier than would likely apply to domestic premises – was the fact that the premises were a commercial workplace that also served alcohol to patrons. Littlejohn was found believable – if inconsistent – even in the face of a ‘gotcha video’, that to their disappointment did not live up to the insurer’s claim-busting expectations.
Frustrated perhaps at the outset by her modest award – her claim was for nearly $700,000 – Ms Littlejohn is no doubt greatly relieved that such arduous proceedings are now, finally, at an end.