Beware of mobility scooters in shopping malls, warns RMB Compensation lawyer, Melissa Pacheco.

The recent decision in Whitton v Dexus Funds Management Ltd [2019] saw a NSW shopping centre owner escape liability for injuries caused by a mobility scooter.

Ms Whitton sued the owner of Deepwater Plaza Shopping Centre at Woy Woy after she was struck by an unregistered mobility scooter and suffered injuries to her back and leg and psychological injury.

Ms Whitton was exiting an amenities corridor when she was struck from behind by the elderly woman driving her scooter along a main thoroughfare. Ms Whitton did not see the oncoming scooter as her view was obstructed by hoarding erected around fit out works on a shop front.

This created a ‘blind corner’, also obscuring the scooter driver’s vision of Ms Whitton.

The accident was captured on CCTV.

Ms Whitton brought the claim against the centre alleging it breached its duty of care in failing to implement reasonable measures available to them that, if implemented, could have prevented the accident.

Her expert evidence provided that such measures could have included, for example: placing warning signs indicating reduced visibility; convex mirrors; barricades or witches hats to create a safe passageway at and around the hoarding on the ‘blind corner’.

One of the most important questions for the Court to consider was whether these measures would have prevented the accident from occurring.

The centre’s liability expert opined that even though Ms Whitton’s peripheral vision of the oncoming scooter may have been obscured by the hoarding erected around the fit out works, the more significant factors in terms of causation included: the speed at which the mobility scooter driver was travelling, and the fact that she was in a rush and distracted the poor peripheral vision of the scooter driver that Ms Whitton was not looking in the direction of the scooter that Ms Whitton entered the scooters path of travel.

In considering whether the Centre breached its duty of care owed to Ms Whitton, the Court accepted that the risk of being struck by a mobility scooter in a shopping centre was foreseeable, but found that Ms Whitton failed to prove that: the risk of harm was not insignificant; the recommended precautions would have been adopted by a reasonable person in the position of the centre and probably would have been effective.

His Honour was not satisfied that causation had been established, finding that, on the balance of probabilities, even if the above mentioned measures recommended by Ms Whitton’s liability expert were in place, Ms Whitton would not have altered her course to avoid being struck by the mobility scooter. His Honour also held the view that it was not probable that a fast travelling mobility scooter would not have slowed down in an attempt to avoid colliding with a patron and hence the ultimate cause of the accident was the careless control of the mobility scooter.

The Court determined that the Centre had not breached its duty of care owed to Ms Whitton, ultimately ruling in favour of the centre.

In essence, the salient points to take from the decision include:

• patrons in shopping centres, whether pedestrians or drivers of mobility scooters, have to take reasonable care for their own safety
• shopping centres are not obliged to take precautionary measures to warn patrons of ‘obvious risks’.