Bradley Vance v Daramalan College Limited

Bradley Vance (the appellant) appealed to the Court of Appeal of the Australian Capital Territory against a decision of the Master of the Supreme Court of the Australian Capital Territory. The dispute concerned a claim for damages for negligence arising from an injury sustained by the appellant while making a milk delivery to Daramalan College (the respondent). The Master had found the respondent negligent but had reduced the appellant's damages by 50% on account of contributory negligence. The appellant contended that this reduction was excessive and that the assessment of his loss of future earning capacity was inadequate.

The primary legal issue before the Court of Appeal was whether the Master's finding of contributory negligence was justifiable. This required the court to consider the scope of the respondent's duty of care as an occupier and the appellant's duty to take care for his own safety in the prevailing circumstances. The court also considered whether the principles applied in employment-related negligence cases, such as *McLean v Tedman*, could be distinguished in the context of an occupier's liability claim. A secondary issue was the adequacy of the damages awarded for loss of future earning capacity.

The Court of Appeal upheld the appeal, finding that the Master's finding of contributory negligence was not justifiable. The court reasoned that while an occupier is generally entitled to assume entrants will act reasonably, past experience can put an occupier on notice of foreseeable risks. Crucially, the court held that the principles from *McLean v Tedman*, which allow for consideration of factors affecting an entrant's concentration and judgment (such as employment duties and time pressures), were applicable to this occupier's liability claim. The court found that the appellant was faced with a dilemma: negotiate difficult terrain or fail to complete his delivery, which would inconvenience customers. The appellant's decision to proceed, based on his belief that it was not dangerous and his successful prior deliveries, was not, with the benefit of hindsight, demonstrably a failure to take reasonable care for his own safety. The court concluded that the appellant's judgment, though potentially flawed in hindsight, was not so flawed as to amount to contributory negligence, and that any risk taken was excusable in the circumstances.

Consequently, the Court of Appeal set aside the Master's finding of contributory negligence and the consequent reduction in damages. The court varied the judgment to award the appellant the full amount of damages assessed, increasing the award from $180,866 to $414,733. The respondent was ordered to pay the appellant's costs of the appeal and the costs of the proceedings before the Master.