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.
When giving consideration to sections 5B and 5C of the Civil Liability Act 2002 (NSW), Dicker DCJ found:
His Honour made some interesting obiter recommendations in his judgment, including:
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.