A woman who suffered an “almost complete psychological collapse” after witnessing her husband killed when the car he was driving fell off the edge of a second storey car park, has been awarded a large sum of damages by the court that had no difficulty in ruling that both the Carlton Crest Hotel and the Council were liable in negligence.
When the accident occurred on the evening of 5 March 2006, Michelle Lee, a 34-year-old speech pathologist with a promising career ahead of her, was a passenger in the car driven by her husband of six years, Thomas Lee. Mr Lee drove to a multi-level commercial car park owned and operated by the Carlton Crest Hotel (Sydney) Pty Ltd (the car park and Carlton respectively). Mr Lee found a car space on the second storey. Ms Lee alighted from the vehicle while Mr Lee endeavoured to reverse the car further into the car space. The car slowly reversed into the car space and towards a metal railing that was a perimeter barrier. The barrier disintegrated and the car fell off the edge. Mr Lee was fatally injured. Ms Lee sued for nervous shock and under the Compensation to Relatives Act 1897 (NSW) in respect of the alleged “wrongful act, neglect, or default” of Carlton and the City of Sydney Council (Council) towards her late husband.
Liability of Carlton
Carlton was negligent and was held to be responsible for 75% of the judgment in Ms Lee’s favour. It owed a duty of care to users of the car park that required it to have a reasonable system of inspection of the surface of the interior and exterior of the car park to ascertain the existence of any potentially significant and obvious defects or disrepair. If it had such a system, it would have detected the fact that only one-half of the wheel stop at the rear of the car space was affixed so as when Mr Lee reversed he did not detect the tactile resistance that he was expecting. The system would also have detected that the state of the car park was such that it needed inspection by an engineer. Such an inspection would have revealed that the perimeter railing was “grossly inadequate” and did not comply with a particular design standard that prescribed a specific level of load resistance. Carlton was also held to be aware that some wheel stops were not attached and that at least one of the perimeter railings was loose.
Liability of Council
The Council was also held liable as the car park was not erected in compliance with the Local Government Act 1919 (NSW). The perimeter railing didn’t comply but after inspecting the car park the Council issued a building certificate which allowed it to be used as a commercial car park. The Council’s inspection and the subsequent exercises of power were considered by the court to be both “negligent and unreasonable”. The Council was to bear responsibility for 25% of Ms Lee’s judgment.
Mr Lee’s conduct in applying accelerating force contributed to his death but he had no knowledge of either the faulty wheel stop or the grossly inadequate nature of the perimeter railing. A reduction of 20% of the damages recoverable was warranted to account for his contributory negligence.
In relation to her nervous shock claim, as a result of her husband’s death Ms Lee suffered an almost complete psychological collapse affecting every part of her life, including her promising career as a speech pathologist. Since the fatal accident she had been depressed, suicidal at times and spent a considerable period in a psychiatric clinic and her condition was unlikely to improve. The court assessed her non-economic loss at 50% of a most extreme case. Considerable amounts for both past and future economic loss were also awarded along with past and future domestic assistance, and out-of-pocket expenses.
In relation to the damages under the Compensation to Relatives Act 1897 (NSW), absent the accident, Ms Lee could have expected to have derived significant economic benefits from her marriage. The court considered the income Mr Lee would have brought to the marriage via his role as a Network Support Analyst in a salary that commenced at $72,000 per annum and modestly increased and then from 2009 to the date of judgment as a Senior Infrastructure Specialist earning an average of $120,000 gross per annum.
The parties were asked to calculate the damages to give effect to the judgment: Lee v Carlton Crest Hotel (Sydney) Pty Ltd  NSWSC 1280.