Ansett Transport Industries (Operations) Pty Ltd v Lennard

[1998] QCA 124

IN THE COURT OF APPEAL	[1998] QCA 124
SUPREME COURT OF QUEENSLAND

Appeal No. 8601 of 1997

Brisbane

[Ansett Transport Industries (Operations) Pty Ltd v. Lennard]

BETWEEN:

ANSETT TRANSPORT INDUSTRIES
(OPERATIONS) PTY LTD

ACN 004 209 410

(Defendant) Appellant

AND:

KEVIN FRANCIS LENNARD

(Plaintiff) Respondent

Pincus J.A.
McPherson J.A.

Fryberg J.

Judgment delivered 16 June 1998

Separate reasons for judgment of each member of the Court; each concurring as to the orders made.

APPEAL DISMISSED WITH COSTS.

CATCHWORDS:	CIVIL - TORTS - Negligence - Standard of care - Dangerous premises - Obvious danger - No previous accident of same kind.
Damage - Causation - New intervening force - Deliberate act of third party.
March v. E. & M.H. Stramare Pty Ltd (1991) 171 C.L.R. 506 Parsons v John Holland-Christiani and Nielson Joint Venture (a firm) [1991] 1 Qd. R. 137 Romeo v. Conservation Commission of the Northern Territory (1998) 72 A.L.J.R. 208 Smith v. Littlewoods Organisation Ltd [1987] 1 AC 241 The Wagon Mound (No.1)[1961] AC 388 The Wagon Mound (No.2) [1967] 1 A.C. 617 Weld-Blundell v. Stephens [1920] A.C. 956
Counsel:	Mr J.A. Griffin Q.C. for the appellant Mr D.O.J. North S.C. for the respondent
Solicitors:	Drake Walker & Leahy for the appellant Bennett & Philp for the respondent
Hearing Date:	13 March 1998

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 8601 of 1997.

Brisbane

Before Pincus J.A.

McPherson J.A.

Fryberg J.

[Ansett Transport Industries (Operations) P/L v. Lennard]

BETWEEN:

ANSETT TRANSPORT INDUSTRIES
(OPERATIONS) PTY LTD

(A.C.N. 004 209 410)

(Defendant) Appellant

AND:

KEVIN FRANCIS LENNARD

(Plaintiff) Respondent

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 16 June 1998

I have read the reasons of Fryberg J. and agree with his Honour’s conclusions.

The argument that failure to provide a guard rail along the open edge of the jetty was not

negligent was not, in my opinion, an insubstantial one. I agree however with the view of Fryberg J. that

it must be rejected. My reason for doing so relates principally to the circumstances in which the jetty

was commonly used; but I am in general agreement with the reasons of Fryberg J. on that aspect.

The other argument for the appellant was that since the respondent was pushed over the side,
responsibility for his injuries should be laid at the door of his assailant, to the exclusion of the appellant.

There is no absolute rule that in situations of this kind the defendant will or will not be held liable. The

circumstances in which either result will follow do not appear to me to have been accurately defined and

I suspect they are not capable of such definition. Exhortations to apply commonsense, as in Bennett

v. Minister of Community Welfare (1992) 176 C.L.R. 408 at 412, 413 are, in marginal cases like the

present, of marginal help: cf. March v. E & M H Stramare Pty Ltd (1991) 171 C.L.R. 506 at 533.

Another suggestion is that the chain of causation is interrupted only by conduct which is intended to

exploit the situation created by the defendant: Bennett at 429, 430; but there are, with respect,

difficulties in accepting that as a test. March holds that one factor is whether the injury occurred "in the

ordinary course of things" and if that test were applied here it would point to allowance of the appeal.

It appears that in the United States a dominant test is the extent to which the intervening act was

foreseeable: see Prosser and Keeton on Torts 5th Ed. at pp. 301 et seq. I think there is sometimes

involved a comparison of the fault of the original tortfeasor with that of the intervener; in Mahony v. J

Kruschich (Demolitions) Pty Ltd (1985) 156 C.L.R. 522, for example, the question whether the

intervener’s conduct was grossly negligent was regarded as material, even though some negligent

conduct of an intervener was foreseeable (530).

It may be thought unsatisfactory that the appellant’s liability for the damage caused by an assault

by the intervener does not depend upon the application of any precise test. One produces little

advantage, as to the predictability of the result of a contest of this kind, by saying that the Court must

use its commonsense; use of that faculty might suggest to some that it is rather hard on the appellant to

treat it as having caused the injury consequent on the intervener’s assault, given that there was evidence

that in the history of the use of the jetty no-one had ever been injured because of the absence of a

guardrail. Although I have not found the question an easy one, I have concluded that the trial judge’s

view that the appellant should be held liable for the result of the push was right. My principal reason

for doing so is that, accepting as I do that the appellant would have been liable for the consequences

of an accidental fall over the unguarded side of the jetty, the happening of such a fall due to horseplay

or deliberate pushing was not much less foreseeable than an accidental fall.

I agree with the orders proposed by Fryberg J.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 8601 of 1997

Brisbane

Before Pincus J.A.
McPherson J.A.
Fryberg J.

[Ansett Transport Industries (Operations) P/L. v. Lennard]

BETWEEN:

ANSETT TRANSPORT INDUSTRIES (OPERATIONS) PTY. LTD.
ACN 004 209 410

(Defendant) Appellant

AND:

KEVIN FRANCIS LENNARD

(Plaintiff) Respondent

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 16 June 1998

Common experience teaches that people are prone to falling over. They do so for a variety of

reasons, such as being nudged, jostled, pushed, tripped or simply stumbling or losing their footing. Their

doing so may be traceable wholly or in part to any one or more of a number of factors, including malice,

carelessness, intoxication, infirmity, sickness, or other act or omission or condition of body or mind on

their own part or that of someone else. The risk is obviously greater where large moving crowds of

people are involved.

Ordinarily the consequences for an individual who falls, although possibly painful, are not often

serious. However, the risk of sustaining serious personal injury from a fall increases in direct proportion

to the distance of the fall and the physical condition of the surface on which the individual is likely to

land. Where the risk of serious injury through falling and the chances of its happening are not

insubstantial, an occupier who actively promotes the use of an area by crowds of people is under an

obligation to take reasonable care to guard against that risk.

Installing a simple handrail, a guard rail or a fence to reduce the risk of falling is an obvious

precaution of that kind. It could have been done here at comparatively little expense. In the present

instance there was a handrail along one side of the jetty but not the other. The risk that, among the

crowds of people using the jetty for purposes of access to and from the “booze cruises” conducted by

the defendant, one or more individuals might at some time stray over to the other and unguarded side

and fall over was, it might fairly be considered, an obvious one. The distance he or she might fall, and

the injuries likely to be sustained in doing so, were likely to vary according to the place of the fall and

the state of the tide. At the time when the applicant fell, the tide was out and the distance of his fall to

the exposed rocks below was about 4 metres. As a result, it was more or less inevitable that he would

be injured, as indeed he was.

The only substantial basis on which the defendant could and does seek to escape liability for

the plaintiff’s injury is that he was deliberately pushed off the edge of the jetty. Such an event was not

such a remote possibility as to justify the conclusion that it could be disregarded in judging whether a

rail or fence should be installed along the side of the jetty from which the plaintiff fell. The injury could

just as readily have had its origin in conduct that was not deliberate. Damage, said McHugh J. In

March v. E. &.M.H. Stramare Pty. Ltd. (1991) 171 C.L.R. 506, 535:

“... will be a consequence of the risk if it is the kind of damage which should have been reasonably foreseen. However, the precise damage need not have been foreseen. It is sufficient if damage of the kind which occurred could have been foreseen in a general way.”

The damage sustained in the present case was within the scope of the risk created by the defendant’s

negligent failure to fence the side of the jetty over the edge of which the plaintiff fell. This was in

substance the view formed by the learned trial judge.

I agree with the reasons of Fryberg J. The defendant’s appeal should be dismissed with costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 8601 of 1997

Brisbane

Before Pincus J.A.
McPherson J.A.
Fryberg J.

[Ansett Transport Industries (Operations) Pty Ltd v. Lennard]

BETWEEN:

ANSETT TRANSPORT INDUSTRIES
(OPERATIONS) PTY LTD

(A.C.N. 004 209 410)

(Defendant) Appellant

AND:

KEVIN FRANCIS LENNARD

(Plaintiff) Respondent

REASONS FOR JUDGMENT - FRYBERG J.

Judgment delivered 16 June 1998

The appellant was the unsuccessful defendant in an action in this Court for damages for personal

injuries sustained by the respondent when he fell from the open edge of a jetty at South Molle Island

on 5 January 1990. The learned trial judge assessed damages in the sum of $202,127.41 and, in the

absence of any plea of contributory negligence, gave judgment for that amount.

At the relevant time the appellant operated a resort at South Molle Island. It was also the

occupier and controller of a jetty on the island. The jetty was about 170 metres long. As one

proceeded along it toward the sea, there was a handrail of solid timber construction along the right hand edge, but not along the left. The fence terminated where a wide T-shaped head commenced. This

unfenced head was where passengers embarked on and disembarked from vessels. Although the head

of the jetty was in relatively deep water, the sea bed rose quite quickly so that the water was fairly

shallow for a considerable distance over the mid-section of the jetty. There was no water at all beneath

the jetty for a substantial distance out from the abutment to the land. For many metres from the

abutment, the surface beneath the jetty consisted mainly of rocks. At the third or fourth pylon, the drop

to the rocks was about 13 feet.

The right hand side of the jetty was a walkway for pedestrians, about a metre wide with a

timber member acting as a "kerb" to separate it from the rest of the jetty. On the far left side of the jetty

was another horizontal timber member again fulfilling the function of a kerb. There was a plank centre

strip down the middle of this part of the jetty, probably for structural purposes, but looking like another

walkway. In fact, the whole jetty was available for pedestrians unless traffic happened to be using the

left-hand side. There was no warning sign, nor any attempt to confine pedestrian traffic to the right hand

section. The jetty was constantly and regularly used by pedestrians. The manager of the resort

estimated that on the day when the respondent fell between 850 and 1000 people used it. From time

to time there were crowds on the jetty, sometimes 100 at a time.

On 5 January 1990, the respondent, then a 23 year old telecommunications rigger in the air

force, went to South Molle Island with a companion to attend the regular "South Sea Island Night"

promoted and run by the appellant. This function was, to the appellant's knowledge, popularly known

in the district as the "booze cruise". The respondent arrived at the island on the vessel Capricorn,

disembarked upon the jetty, and walked to the resort to attend the function. There he had dinner and

a certain amount of alcohol, though not an excessive amount. A little after 11.10 p.m., he and his companion were walking back to the vessel not far behind a group of four young men, who were also

proceeding toward the jetty. Two other young men were walking in the opposite direction. One of

those men brushed shoulders with one of the men in the group of four. There was an exchange of

abuse. Shortly afterwards, when the respondent and his companion were about ten metres along the

jetty, the two men commenced physical hostilities. The respondent became involved. One of the men

aimed a karate kick at the respondent's head, which he blocked. Three of the others then subdued that

assailant. The respondent endeavoured to break up a struggle between two others. At that point, the

first assailant broke free, took hold of the respondent from behind, and propelled him forward.

Although the respondent's feet were on the ground, he was unable effectively to resist the propulsion

from his rear, and was pushed off the unguarded side of the jetty, falling onto the rocks below. The trial

judge found that the failure of the appellant to erect a fence in the area where the respondent fell was

a cause of his injuries and (apart from an argument relating to the doctrine of novus actus interveniens)

there was no challenge to this finding.

The trial judge also found that the respondent was the person primarily responsible for giving

consideration to whether the jetty was reasonably safe for those who came and went along it and

whether steps should be taken to arrange for any alterations that might be thought necessary. He found

that it was reasonably foreseeable, indeed quite obvious, that patrons would be leaving the island late

at night and that there was a strong possibility that such people might be intoxicated. Children also used

the jetty. He found that the readily foreseeable circumstances would include fairly large groups of

people hurrying to catch the boat back to the mainland, the prospect of jostling, and even of relatively

bizarre conduct by persons present. There were risks of slipping, skylarking, bumping and pushing.

He found that the erection of a fence on the left-hand side of the jetty, similar to that on the right-hand
side, would not have been difficult. There was no suggestion that it would have been particularly

expensive. His Honour rejected a suggestion that such a fence might somehow interfere with the

carrying of loads by vehicles along the jetty. No boats berthed at the side of the jetty; they used the

wharf at its end. As his Honour observed, the situation at the wharf raised far more complex issues.

Balancing these matters against the risks referred to above, his Honour held that it was desirable to

provide a protective mechanism, subject to reasonable feasibility, when a sufficient risk or danger could

be seen to exist.

The appellant did not challenge any of the facts found by the judge. Only two arguments were

advanced on its behalf. First, it was submitted that the inference of negligence drawn by the judge could

not properly be drawn. Second, it was submitted that the actions of the assailant in pushing the

respondent off the jetty constituted a novus actus interveniens.

Negligence

As the first submission was developed, it became apparent that its thrust was not that the

appellant owed the respondent no duty, but rather, that the provision of a rail exceeded the necessary

standard of care. As Mr. Griffin Q.C. for the appellant conceded, to succeed in this argument the

appellant had to show that the provision of a guard rail was excessive even to guard against accidental

falls. Mr. Griffin submitted that there were two features of the case which supported this contention.

These were, first, that the danger was obvious to persons taking reasonable care; and second, that

there had been no accident of the same kind in the past. He relied upon the decision of the High Court

in Romeo v Conservation Commission of the Northern Territory[1] in support of his submission. It is true that the two features referred to by Mr. Griffin were present in that case. However, the case

[1]

does not stand as authority for the proposition that the existence of these two features negates liability.

They are simply evidentiary factors which must be taken into account. The trial judge took them into

account. Romeo does not assist the appellant on this point.

The appellant also contended that the decision below was inconsistent with the decision of this

Court in Parsons v John Holland-Christiani and Nielson Joint Venture (a firm)[2]. However, it did

[2]

not identify any proposition of law in Parsons with which the decision was inconsistent. In the end, it

seemed that the decision was cited to us only because it was a jetty case in which the defendant

succeeded. It was a decision which depended upon its own facts. It does not assist the appellant in

this case.

Novus actus interveniens

Under this heading, the appellant submitted that "his Honour has, in the circumstances, failed,

to give sufficient weight to the fact that the conduct of the assailant was (on his own findings) the

deliberate act of pushing the plaintiff over the side of the jetty. He has also failed to give proper weight

to the fact that such act was not just fraught with risk of injury, but must have been intended to bring

about injury." His Honour did not find that the assailant's act was intended to bring about injury, and

it was not argued before us that his Honour erred in failing to make such a finding. He did find that that

act (pushing the plaintiff over the side of the jetty) was deliberate. It was further submitted that in those circumstances, the case fell within what counsel described as "the general rule" expressed by Lord

Sumner:

"In general ... , even though A. is in fault, he is not responsible for injury to C. which B., a stranger to him, deliberately chooses to do. Though A. may have given the occasion for B.'s mischievous activity, B. then becomes a new and independent cause ... ." [3]

[3]

The only allowable exception to this rule, it was submitted, was where the defendant was under some

duty to provide security of some kind, although in argument counsel seemed to concede a further

exception where a child or an employee was the plaintiff.

To invite the court to formulate a rule in this area was brave. To invite it to formulate a rule on

the basis of dicta nearly 80 years old was foolhardy. The law is not static. The common law of

Australia today is very different from that of England in 1920. At that time, the tests for remoteness of

damage in negligence were perceived in very different terms. Lord Sumner said this:

“It is tautologous to speak of ‘effective’ cause or to say that damages too remote from

the cause are irrecoverable, for an effective cause is simply that which causes, and in

law what is ineffective or too remote is not a cause at all. I still venture to think that

direct cause is the best expression. Proximate cause has acquired a special connotation

through its use in reference to contracts of insurance. Direct cause excludes what is

indirect, conveys the essential distinction, which causa causans and causa sine qua

non rather cumbrously indicate, and is consistent with the possibility of the concurrence

of more direct causes than one, operating at the same time and leading to a common

result ... .”[4]

[4]

That view was, of course, overruled more than 30 years ago[5]. A little later in his speech, Lord Sumner

[5]

said:-

“What a defendant ought to have anticipated as a reasonable man is material when the

question is whether or not he was guilty of negligence, that is, of want of due care

according to the circumstances. This, however, goes to culpability, not to

compensation ... . Again, what ordinarily happens, or may reasonably be expected to

happen, is material where a mere series of physical phenomena has to be investigated

and the remoteness of the damage or the reverse is to be decided accordingly. Such

a case is Sharpe v. Powell, unless indeed it be regarded as a decision on negligence

or no negligence. At any rate it is not this case.”

That does not reflect the law today[6].

[6]

Lord Sumner’s dicta were critically dependent upon his view of the law regarding causation.

He saw the deliberate actions of the second wrongdoer as an “original impulse” which gave the matter

a “fresh start”. The connection between the damage and the original wrongdoing was, he thought, too

indirect. The foundation for this view no longer exists. As has been said in the High Court, “[T]he fact

that the intervening action is deliberate or voluntary does not necessarily mean that the plaintiff’s injuries

are not a consequence of the defendant’s negligent conduct.”[7] The insufficiency of Lord Sumner’s dicta

[7]

was recognized by the appellant’s concession that additional exceptions had to be made where the

defendant was under a duty to provide security of some kind or where the plaintiff was an employee

or a child.

The appellant also sought to gain support for its argument from the decision of the House of

Lords in Smith v. Littlewoods Organisation Ltd[8]. However, that case was concerned with whether

[8]

the defendant owed the plaintiff a duty of care. It is unnecessary to consider whether the test for the

existence of such a duty which was applied by their Lordships would command the support of the High

Court in this country. Only Lord Goff thought Lord Sumner’s statement relevant to the question of duty.

Although he held that the defendant in that case owed no duty, his Lordship said:-

“But there is a more general circumstance in which a defender may be held liable in

negligence to the pursuer, although the immediate cause of the damage suffered by the

pursuer is the deliberate wrongdoing of another. This may occur where the defender

negligently causes or permits to be created a source of danger, and it is reasonably

foreseeable that third parties may interfere with it and, sparking off the danger, thereby

cause damage to persons in the position of the pursuer. ... In such a case, Lord

Sumner’s dictum ... can have no application to exclude liability.”[9]

[9]

In the present case, the appellant did not argue that it owed the plaintiff no duty and it conceded

that, had the respondent been pushed accidentally rather than deliberately, there would have been no

break in the chain of causation. The trial judge held that a fall from an unprotected and much used

structure was foreseeable and that it did not matter whether the precise way in which the fall happened

was foreseeable. Those findings were correct. Indeed, they were almost inevitable on the appellant’s

own approach to the matter. That approach left the appellant submitting that it made good sense to hold

that where a duty to fence off a dangerous fall existed and there was a breach of that duty, a plaintiff

injured in a fall resulting from a deliberate push could not recover, whereas one injured in a fall caused

otherwise could do so. With the greatest of respect, such a result makes no sense at all.

Considerations of common sense and logic are appropriate in this context. In March v. E. &

M.H. Stramare Pty. Ltd., Mason C.J. said:-

“As a matter of both logic and common sense, it makes no sense to regard the

negligence of the plaintiff or a third party as a superseding cause or novus actus

interveniens when the defendant’s wrongful conduct has generated the very risk of injury resulting from the negligence of the plaintiff or a third party and that injury occurs

in the ordinary course of things. In such a situation, the defendant’s negligence satisfies

the ‘but for’ test, and is properly to be regarded as a cause of the consequence

because there is no reason in common sense, logic or policy for refusing to so regard

it.”[10]

[10]

The reference in that passage to the injury occurring in the ordinary course of things should be

understood in a qualitative, not a quantitive, sense. It is not a question of whether, if a situation is

replicated a multitude of times, there will be a statistical preponderance of occasions where injury

occurs. In March v. E. & M. H. Stramare Pty Ltd, the second defendant had parked his truck in the

same position at night for as long as he could remember. The question is one of common experience.

Common experience placed the events which happened in that case within the scope of the risk created

by the first defendant. So it is in the present case. Falling from the jetty was the very thing a fence

would have prevented and falls caused by third parties are no different from any other falls. Such falls

were foreseeable (a factor which is relevant although not conclusive). The jetty was being used by those

who had consumed alcohol at the appellant’s invitation. There was, as the trial judge found, a risk of

pushing. What happened to the plaintiff was within the scope of that risk.

Neither common sense nor logic supports the appellant’s submission and the appellant

conceded that its case could not be supported on grounds of policy.

As the appellant did not allege contributory negligence nor argue that the respondent’s damages

should be calculated on the basis of the loss of a chance, the trial judge correctly gave judgment for the

full amount of the damages assessed by him.

The appeal should be dismissed with costs.

(1998) 72 A.L.J.R. 208.
[1991] 1 Qd.R. 137.
Weld-Blundell v. Stephens [1920] A.C. 956 at p.986.

[1920] A.C. 956 at pp.983-4.
The Wagon Mound (No.1) [1961] A.C. 388 and The Wagon Mound (No.2) [1967] 1 A.C. 617.
See for example March v. E. & M.H. Stramare Pty. Ltd. (1991) 171 C.L.R. 506 at pp.509-510.

March v. E. & M. H. Stramare Pty. Ltd. (1991) 171 C.L.R. 506 at p.517.

[1987] 1 A.C. 241.
[1987] 1 A.C. 241 at pp.272-3.
(1991) 171 C.L.R. 506 at pp.518-9.