Written by Peter CarterJune 27, 2014
A worker who slipped on the lacquered surface of a bowling lane during a work arranged tenpin play-off, has sustained a $261k injury as a result of her fall.
Lining up for her next delivery, Kathryn Windley stepped beyond the “foul line” – because its presence was subdued by disco illumination – onto the highly polished lane surface itself. Sent feet first into the air, she landed on her right hip shattering it and her femur.
Ambulance to Gladstone Hospital and then airlifted to Rockhampton, she underwent surgery twice. Her convalescence after discharge five days later in August 2008, was slow. There was no doubt that the lanes of the Gladstone Ten Pin Bowling Alley were suitably slick, to speed the passage of the heavy balls over its surface.
Accepting that the foul line was insufficiently visible, the District Court ruled its lack of illumination exposed Kathryn to danger by removing the visible cue as to where the hazardous surface started. Demarcation in a brighter paint colour visible even in the mood lighting that prevailed, was a reasonable and inexpensive solution to avoid the risk of patron injury.
The bowling establishment nevertheless pleaded CLA liability immunity asserting the hazardous surface of bowling lanes was an “obvious risk” of which Kathryn was taken to have been aware.
The absence of clear delineation of the foul line was not “an obvious risk”, Judge Paul Smith decided and neither was it an “inherent risk” pursuant to CLA s 16 CLA.
Thus Windley had not voluntarily assumed the fall risk and the statutory immunity was not available.
As an experienced tenpin bowler, Windley ought to have exercised more care, before the delivery, of ascertaining exactly where the surface delineation occurred. Because she merely made an assumption by looking at participants in other lanes, she hadn’t taken appropriate care for her own safety and was liable for her own injuries to the extent of 40%.
That she pleaded her case in contract as well as tort did not diminish her contributory negligence given that the CLA deals with breaches of duty and harm arising either way. Her loss of past wages was assessed at $91k. Future economic loss came in for the 55-year-old (allowing to $40 per week) at $100k. Total assessment was $261k.
Because of her own 40% liability, damages awarded were reduced to $156k.