Bateman v Reeve

[1999] NSWCA 49

CITATION:	BATEMAN v REEVE [1999] NSWCA 49
FILE NUMBER(S):	CA 40777/97
HEARING DATE(S):	5 March 1999
JUDGMENT DATE:	5 March 1999
PARTIES :	MELISSA JANE BATEMAN v WILLIAM EDWARD REEVE
JUDGMENT OF:	Priestley JA at 10; Meagher JA at 11; Handley JA at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	DC 15/95
LOWER COURT JUDICIAL OFFICER:	Armitage DCJ

COUNSEL:	P Menzies QC/F D Curtis (Appellant) R C Tonner (Respondent)
SOLICITORS:	Griffiths Tierney Bega (Appellant) Turner Whelan (Respondent)
CATCHWORDS:	NEGLIGENCE - occupier's liability - injury to guest at birthday party - whether injury to plaintiff the result of negligence of defendant
DECISION:	Appeal dismissed with costs

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40777/97
DC 15/95

PRIESTLEY JA
MEAGHER JA
HANDLEY JA

Friday 5 March 1999

BATEMAN v REEVE

NEGLIGENCE - occupier’s liability - injury to guest at birthday party - whether injury to plaintiff the result of negligence of defendant
The plaintiff was a guest at a birthday party for one of the defendant’s children. Access to the party was by way of a driveway. Upon leaving the party the plaintiff tripped over a bench which protruded onto the driveway. The District Court found for the defendant.
HELD, Dismissing the appeal: (1) The trial Judge’s findings that the bench was not in a dangerous position and that the plaintiff’s injuries were not the result of any breach of duty of care by the defendant could not be disturbed. (2) The injuries were the result of the plaintiff’s failure to take reasonable care for her own safety.

ORDER

Appeal dismissed with costs.
THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40777/97
DC 15/95

PRIESTLEY JA
MEAGHER JA
HANDLEY JA

Friday 5 March 1999

BATEMAN v REEVE

JUDGMENT

1 HANDLEY JA: This is an appeal by a plaintiff from a judgment entered for the defendant by Armitage DCJ in an occupier's liability case.
2 The plaintiff was a guest at a party at the defendant's home in Bega to celebrate the eighteenth birthday of one of his children. The plaintiff arrived shortly after 11.30 on the night in question, 18 April 1993. The party was being held on the back verandah and in the garden. Access to the party was obtained via a driveway down the side of the defendant's house on its eastern boundary.
3 After the plaintiff had been at the party for about half an hour, she decided to leave. She had to leave the way she came, by walking along the driveway, back to the public street. In doing so, she hit her knee on a wooden bench 2.4 metres in length which was standing partly on the western concrete strip of the driveway and partly on the back lawn of the premises. Having collided with the bench, she fell to the ground and struck a glass that was there and suffered the injuries for which she sued.
4 The question for the Court is whether the injury was in any respect a result of the negligence of the defendant in leaving the wooden bench where it was during the party, or whether the accident was caused solely by the failure of the plaintiff to keep a lookout where she was going.
5 It seems evident that the bench was reasonably visible at the time, and certainly the western end of it which stood wholly on the back lawn of the premises. The back garden and verandah were well lit at the time. The Judge’s finding to that effect has not been challenged. He also found that the driveway was not well lit. However, there was some visibility in the driveway, partly from the light in the back garden and partly from lights in the house next door.
6 Although the eastern end of the bench stood on the western concrete strip of the driveway, it is apparent from the diagram appearing on p 18 of the blue appeal book that the western end stood in the area which was well lit by the spotlight on the back of the verandah on the corner of the drive, which is illustrated in the photograph in exhibit 3. This photograph and the photograph exhibit 6 show that the light in the driveway where the plaintiff fell was reasonable and afforded a significant degree of visibility to a pedestrian, although it was not of the intensity of the lighting on the back lawn.
7 The Judge found that the rear of the premises was well lit, and the area where the plaintiff fell was sufficiently well lit for the bench to be easily seen. In the light of the plan and photographs, and the other evidence, this finding could not be disturbed, and indeed, I do not understand that it was seriously challenged by Mr Menzies QC for the appellant. In the light of that finding, the Judge concluded that the bench was not in a dangerous position and it followed, in the Judge's view, that the plaintiff's injuries were not the result of any breach of duty of care by the defendant. His Honour found that the defendant had done all he could reasonably be expected to have done having regard to the prevailing conditions, including the available lighting.
8 Given these findings, it seems to me, with respect to the argument presented by Mr Menzies, that the Judge's conclusion that there should be a verdict for the defendant was inevitable. If the plaintiff had been taking any reasonable care for her own safety, she could not have failed to be aware of the presence of the bench, the western end of which was clearly illuminated by the spotlight on the verandah, and this would have alerted her to its presence and to the fact that the eastern end extended out towards the driveway. The lighting appears to have been sufficient to have illuminated the eastern end of the bench in any event.
9 I would therefore propose that the appeal be dismissed with costs.
10 PRIESTLEY JA: I agree. On the facts found by the trial Judge, which this Court must take as the basis of its consideration in the appeal, I do not think any breach of the defendant's common law duty to his guest was established.
11 MEAGHER JA: I also agree.
12 PRIESTLEY JA: The orders of the court therefore are that the appeal is dismissed with costs.
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