In a study published May 2019, in the period 2011 to 2016 approximately 140 pedestrians were admitted to hospital for mobility scooter-related injuries. But if you sustained an injury as a result of a collision with a mobility scooter in a shopping centre, could you make a claim for compensation? The case of Whitton v Dexus Funds Management provides precedent and guidance.
Ms Whitton attended Deepwater Plaza Shopping Centre at Woy Woy on 17 July 2016. Whilst she was exiting an amenities corridor, Ms Whitton was struck in the back heavily by a mobility scooter driven by an elderly woman, causing her to fall to the ground. Ms Whitton sustained injuries to her back, leg and a psychological injury.
Ms Whitton brought a claim against the Centre owner in respect to the injuries sustained as a result of the collision. Ms Whitton made the following allegations in support of her claim for compensation:
- Her view of the oncoming mobility scooter was obstructed by hoarding erected around fit out works on a shop front;
- The Centre owner breached its duty of care in failing to erect warning signs, barriers and reasonable measures to prevent the accident; and
- The Centre breached its duty of care in failing to monitor and control the use of mobility scooters at the Centre.
On all the evidence presented by the parties, his Honour Dicker J found that the Centre owner did not breach its duty of care owned to Ms Whitton. His Honour commented that even if the Centre implemented reasonable measures to prevent the accident, Ms Whitton would not have altered her course to avoid the collision.
His Honour determined that the cause of the collision was the careless control of the mobility scooter and not the Centre’s breach of duty of care. Further, his Honour found that the risk of being struck by a mobility scooter is an obvious risk that can be avoided by a reasonable person exercising proper care for their own safety.
The case highlights some important take outs that ought to be considered before commencing court proceedings for damages as a result of mobility scooter –v- pedestrian collisions in Shopping Centres:
- Shopping Centres do not have a duty to warn patrons of obvious risks such as mobility scooters; and
- Pedestrian and mobility scooter drivers should take reasonable care for their own and others’ safety.
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