Slip & Fall Incident Claim Reduced For Failing To Take Care
Windley v Gazaland Pty Ltd trading as Gladstone Ten Pin Bowling QDC (2014) 214
The Plaintiff, Ms Windley, had been bowling for 40 years when she attended a "glow in the dark" bowling night at Gladstone Ten Pin Bowling. She had attended such events previously but not at this establishment. As Ms Windley was about to throw the ball down the lane, she stepped forward and her foot went past the foul line in the dark, onto the oiled surface of the alley, and she slipped and fell, fracturing her femur.
Ms Windley alleged that she had not seen the foul line in the dim lighting as the lighting had been dimmed considerably to give effect to the "glow in the dark" aspects of the event. She brought a personal injury claim against the bowling alley in negligence and breach of contractual duty.
Arguments were made against Ms Windley's claim on the grounds of obvious risk, failing to take due care for her own safety by keeping a proper lookout, and that there was no negligence on the part of the Defendant. The Defendant argued that Ms Windley had attended similar events previously and ought to have been aware when participating in the event that she would have to take extra care for her safety when bowling in the dark, and she had accepted the risks involved in such event given that knowledge, and her decision to participate with that knowledge.
There had not been sufficient light or means of identifying where the foul line was
The Court considered the evidence and found for the Plaintiff. The Court accepted that Ms Windley could not see the foul line properly due to the dimmed lighting and there had not been sufficient light or means of identifying where the foul line was and where the slippery alley, which was oiled regularly by the Defendant to make the alley slippery for the purposes of bowling, started. The Court found it was not an obvious risk or inherent risk as alleged by the Defendant, as the foul line was not clearly delineated making the slippery area of floor obvious.
The Court also found the Plaintiff was not aware of the risk, and the event could have been set up more safely thereby avoiding the risk. In particular, the Court found the foul line could have been made more visible to players by providing better lighting and putting in the highlighting sign that was later put in by the bowling alley, as well as announcing a warning as to the risk at the beginning of the event.
The Court held that the Defendant ought to have been aware of the risk posed by the poorly delineated foul line as it was reasonably foreseeable in the circumstances, it was not insignificant and could have been avoided by taking the steps asserted by the Plaintiff that a reasonable person in the circumstances would have done.
Breach of contractual duty
The Court also considered the Plaintiff's claim for breach of contract. The Plaintiff alleged that there was a contract between herself and the bowling alley, having paid to enter the establishment, and she was owed a duty of care under that contract that the premises would be as safe as reasonable care and skill on the part of any person could make them. She alleged the breach of that contractual duty by the bowling alley resulting in her injury.
The Court agreed with the Plaintiff's submissions and found that the bowling alley had breached its contractual duty to her in failing to properly illuminate the slippery part of the alley, place highlighting signs to delineate it, and to provide early warnings of the risk posed by it when bowling in the poorly lit environment.
However, the Court also found that the Plaintiff had not taken due care for her safety at the time of her injury occurring, in that she was aware that she would be bowling in dim lighting and she ought therefore have been aware that she should take extra care. In particular, the Court found the Plaintiff should have taken heed of where the gutters were when she was bowling and taken more care where she was stepping. The Court also took into account the Plaintiff's past experience as a bowler when considering the issue of contributory negligence.
In determining the extent of the Plaintiff's contribution to the accident occurring, it considered previous cases and awards in this regard. The Court also considered the legislative provision in the Civil Liability Act 2003, that a Plaintiff's claim can be defeated by the contributory negligence of a Plaintiff if the Court considers it just and equitable in the circumstances. The Court held that the Plaintiff's negligence was not to such an extent as to extinguish her claim, but awarded contribution of 40% against her. This resulted in a reduction of the Plaintiff's assessed damages of $260,990 to $156,594.
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