Hudson v Attorney-General [2001] VUSC 56; Civil Case 123 of 1990 (14 June 2001)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

(Civil Jurisdiction)

Civil Case No. 123/1990

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CLARE JUDITH HUDSON

(Plaintiff)

AND:

ATTORNEY GENERAL

(Defendant)

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JUDGMENT

clas class="MsoNormal" style="margin-top: 1; margin-bottom: 1"> On 2nd

After their son arrived, about an hoter, they walked to the car. It was still raining, but not not as heavily. Whilst the luggage was being placed in the boot and her husband and son getting into the car, the plaintiff walked around the front of the car and back towards the front passenger’s door. This was a left hand drive car. As she did so she stepped into an open drain causing pain and injury to her left knee, ankle and other parts of her leg.

The defendants accept they were at imes in occupation and control of the airport and environs.rons. However, they deny any breach of the Occupiers Liability Act 1957 or any act of negligence in respect of this incident.

The original writ of summons wled on 14 November 1990. For the purposes of this judgment ment there is no need to inquire into the reasons why this case has taken so long to reach trial. It does mean, however, that witnesses are recollecting events from a long time ago. It would appear that the scene of the incident itself has changed little, if at all, from the time in question.

I havited the scene in the presence of the plaintiff, her advocate and the advocate for thor the defendants. This was done after dark. A car was parked as nearly as recollection permits in the position of the car on the night in question. There was a similar type of lighting available, although brighter than at the time of the incident. It was not raining.

I have heard the evidence of the plaintiff, Mrs Clare Hudson, her husband David Hudson and Hendry Joewangeh, now general manager of the airport, and then a junior staff member.

I accept the evidence of each of them. I find they all doing their best to recall these events as accuraccurately as possible. Whilst the incident was over eleven years ago it is one that will have lodged in the memories of Mrs Hudson and her husband. Hendry Jeowangeh did not have that feature to assist him, but nevertheless gave evidence in a clear and truthful way. The only difference of any note, the use of the area outside the building, is not relevant as everyone agrees that whatever working lighting there was would have been on.

ass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> The submissions of the parties were tendered to the Court in writing. I will not reiterate them in detail. The plaintiff argued this area was clearly open to the public, there was a deep concealed drain in a poorly lit area. The fact the designated car parking area was not used is of no relevance and, in any event, there was no sign prohibiting parking at the place used. The plaintiff said in the circumstances the question of contributory negligence does not arise.

The defendants replied that there was no breach of the duty of care under the Occupiers Liability Act nor in negligence. They said drains of this kind are commonplace in the tropics and Port Vila. The plaintiff was a long-term resident here and a regular user of the airport. The designated car parking area was not used and there is no evidence of other accidents concerning this drain. They alleged contributory negligence as to where the plaintiff was walking, off the paved area onto grass, in high heel shoes, where the lighting was poor.

I find there was a duty of care owder section 2 of the Occupiers Liability Act and in negligegligence. This drain is clearly in an area where the public are permitted to go and can reasonably be expected to go. Just a few feet further on is a high wire fence topped with barbed wire. That follows a line extended along from the wall of the terminal building. On one side of the fence are the aeroplanes, airport vehicles, sheds, and everything that goes with a small working airport. On the other side of the fence is the service road, general car parking area and places to walk for the public.

Further, this is a wire fence th full visibility through it. Adults and children doubtlesbtless from time to time went up to the fence to look at aircraft, their movements and the general activities of an airport. There was nothing to indicate where the public area finished, other than the wire fence.

Was there a breach of that duty? I find there was a breach. It is accepted this was an drain running for sfor several yards parallel to the wire fence and two or three yards on the public side of it. It was approximately two to three feet wide and two to three feet deep. There were no covers, fences, lights or warnings for it. The top of the grass growing up from inside the drain and the top of the grass at the side of the drain were at approximately the same height. This in itself would have the effect of concealing its presence. The plaintiff described it as ankle to shin height when walking by the drain. The slipperiness at this area is not relevant as the plaintiff says she stepped straight into it and was injured. The area was poorly lit. I have visited the site, with the car in its position and outside lighting on. The plaintiff says that there was less lighting on the evening in question. Even at the time of my visit the area was poorly lit.

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There is a concrete shed which Hendry Joewangeh confirmed was the 1989, which sits against tnst the fence. That building cast a shadow which fell onto some of the length of the drain in the area where the car was parked. It is not possible to say if that was precisely the place where the incident happened; if it was, it would have turned a poorly lit area into virtual darkness.

Was there any contributory negligenche defendants argued that the starting point should be 50:5 50:50. I find the fact the car was parked in this position does not affect liability or raise a question of contributory negligence. The nearest no waiting sign was on the far side of a wide roadway, there were no such signs in this area. The fact it was not specifically designated as a car park area does not affect the issue.

The footwear of the plaintiff is not relevant. This is not a case of slipping or turnn ankle, this was a ss a step into a open drain. The fact of walking from to a paved grass area makes no difference, the drain was concealed, indeed almost invisible.

Did the plaintiff contribute to this incident by walking from a well rea, the terminal building,ding, into a poorly lit area. Should she have proceeded with greater caution ? Should she have waited in the well lit area to be collected ? I do not find there was any contributory negligence. Having met her son, it would have been natural to walk, as a family, back to the car. The rain was not as heavy as when they arrived, a light rain. She was aware she was walking onto grass, and therefore went on tip toe, in her high heel shoes. Whilst a greater degree of care can be expected when walking into a poorly lit area, that degree of care cannot reasonable be expected to encompass a concealed, 2-3 feet deep open drain.

I have considered whether or not there was a car parkhind the plaintiff’s car. I make no finding thereon. eon. It does not affect the matter. The fact the plaintiff had not parked in this specific area before does not affect my findings. Hendry Joewangeh gave evidence that he had not heard any reports of anyone else having an accident as a result of this drain. This is of peril value an and does not affect my findings.

lass="MsoNoMsoNormal" mal" style="margin-top: 1; margin-bottom: 1"> Accordingly I give judgment for the plaintiff. I specifically find there was no contributory negligence.

DATED at Port Vila this 14^th June 2001.

lass="Mss="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> BY THE COURT

p class="Mss="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> R.J. CRY

JUDGE