Fast and Furious: Mobility scooters in shopping centres are dangerous and the risk is obvious

Ms Whitton was struck from behind by an elderly woman driving a mobility scooter in the main thoroughfare of Deepwater Plaza Shopping Centre at Woy Woy in New South Wales (the Centre), causing her to sustain injuries to her right leg and back, as well as psychological injury. She brought a claim against the defendant as the occupier operator of the Centre, claiming that the installation of hoarding on a shopfront obstructed her visibility of the oncoming mobility scooter.

 

Authors: Jessie Tye and Jumana Hanania
Judgment date: 18 October 2019
Citation: Whitton v Dexus Funds Management [2019]
Jurisdiction: District Court of NSW – Common Law

Principles


  • Breach of a duty of care.
  • Whether risk warnings were required due to the obstruction to patron's vision by a shop front hoarding.
  • Causation.

Background

On 17 July 2016, Ms Whitton was exiting an amenities corridor at the Centre and turned left onto the main thoroughfare. She veered into the path of an oncoming mobility scooter travelling along the main thoroughfare and moments later was struck from behind, sustaining a serious injury.

The elderly woman driving the mobility scooter was uninsured and was not a party to the proceedings.

At the time of the incident there was hoarding present on a shopfront situated to Ms Whitton's right, at the corner where the amenities corridor met the main thoroughfare. It was alleged by Ms Whitton that the hoarding protruded into the main thoroughfare and obstructed her view of the oncoming mobility scooter to her right.

Amongst other things, Ms Whitton alleged that the defendant breached its duty of care in failing to install warning signs as to the 'blind corner' created by the hoarding; failing to install convex mirrors allowing those exiting the amenities corridor to see into the main thoroughfare; and failing to install barriers around the hoarding.  Ms Whitton also alleged the defendant breached its duty of care in failing to monitor and control the use of mobility scooters at the Centre.

Expert liability reports were relied upon by both parties to the proceedings.  The plaintiff's expert, David Dubos, opined the hoarding did obstruct the plaintiff's view of the oncoming mobility scooter an in addition the driver of the mobility scooter's vision was obscured.  Dubos opined the Centre ought to have implemented a range of measures to address the risk including the installation of warning signs indicating reduced visibility; a barrier with mesh netting connecting bollards, or witches hats, to create a safe passageway out of the amenities corridor; or installing a convex mirror positioned at the exit of the amenities corridor.

The defendant's expert, Ken Horrigan, opined that while the hoarding would have contributed to reducing the view of the mobility scooter in Ms Whitton's peripheral vision, the more important causative factors to the incident were Ms Whitton not looking in the direction of the mobility scooter; the driver of the mobility scooter having poor peripheral vision, being in a hurry, and being distracted; and the plaintiff walking across the path of the mobility scooter.  Horrigan further opined that Ms Whitton and driver of the mobility scooter both had ample opportunity to see each other and take action to avoid contact.

Decision

Dicker DCJ ultimately found that the cause of the accident was the careless control of the mobility scooter by the driver.  His Honour ordered judgment for the defendant, after finding that the defendant did not breach the duty of care which it owed to Ms Whitton and that causation had not been established.

When giving consideration to sections 5B and 5C of the Civil Liability Act 2002 (NSW), Dicker DCJ found:

  1. The risk of a that a patron may be struck and injured by a mobility scooter in the Centre was foreseeable;
  2. The plaintiff failed to establish that the risk was not insignificant;
  3. A reasonable person in the position of the defendant would not have taken the precautions recommended by Dubos and submitted by Ms Whitton;
  4. It was not probable at all that a person riding a mobility scooter would proceed at a high speed and not slow down or avoid colliding with a pedestrian ahead;
  5. The blind corner at the hoarding and at the exit to the corridor was obvious;
  6. There are potentially many other blind corners in shopping centres and to put signs and/or convex mirrors at all exits or entrances where there are blind corners or obscured vision would impose a significant, unreasonable and costly burden shopping centres;
  7. The social utility of having disabled people undertake tasks in the community is a relevant factor; and
  8. It was reasonably to be expected by her that someone riding a mobility scooter at speed would exercise reasonable care for the safety of patrons.
In any event, his Honour was not satisfied that causation had been established on the balance of probabilities.  He found it was more probable than not that Ms Whitton would not have altered her course if there were mirrors, signs or barricades present.  Absent being able to make such a finding, the precautionary measures the plaintiff pleaded that he defendant ought to have implemented would not have prevented the accident from occurring.

His Honour made some interesting obiter recommendations in his judgment, including:

  1. The requirement for people driving a mobility scooter to undergo a medical test to ensure they have the physical ability and vision necessary safely to control a scooter;
  2. Requiring the drivers of mobility scooters to be insured; and
  3. Requiring drivers to place their mobility scooters at a speed level of 3km/hr when in shopping centres.

Why this case is important

This case considers the risks posed by the use of mobility scooters under the control of persons with a disability.  These devices travel alongside other patrons in public thoroughfares and businesses, and can  be driven at reasonably fast speeds.

The Court has found in this decision that the risk of being struck by some form of traffic including a mobility scooter is an obvious risk, that can be avoided by a reasonable person exercising proper care for their own safety.

The Court has also found that the risk of navigating a 'blind corner' and entering into a thoroughfare with oncoming pedestrian traffic is obvious, in that a patron may risk being struck by another patron, or in this case, a mobility scooter.

As such, shopping centres have no proactive duty to warn patrons of such obvious risks.

This case emphasises that there is an expectation that patrons of a shopping centre will exercise reasonable care for their own safety and the safety of others.  This applies equally to both pedestrians and those driving mobility scooters.

Contributors

Jessie Tye Special Counsel
Jumana Hanania Lawyer