Brock v Hillsdale Bowling and Recreation Club Ltd

[2007] NSWCA 46

New South Wales

Court of Appeal

CITATION:	BROCK v HILLSDALE BOWLING & RECREATION CLUB LTD [2007] NSWCA 46 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	06/03/07
JUDGMENT DATE:	15 March 2007
JUDGMENT OF:	Ipp JA at 1; Tobias JA at 33; Basten JA at 34
DECISION:	By majority; (a) The appeal be upheld. ; (b) The judgment of McGrowdie ADCJ be set aside. ; (c) There be judgment and verdict for Ms Brock in the sum of $31,531.11 (being 50% of the damages assessed at $63,062.22). ; (d) There be interest under the Supreme Court Act 1970 (NSW) on the sum $31,531.11 as from 29 November 1999. ; (e) The Club pay Ms Brock’s costs of the trial and the costs of the appeal. ; (f) The Club have a certificate under the Suitors’ Fund Act 1951 (NSW) if otherwise entitled.
CATCHWORDS:	TORTS – NEGLIGENCE – DUTY OF CARE – breach of duty – whether the design and configuration of a ramp constructed by the respondent was such that it amounted to a breach of duty on the part of the respondent – whether regard should be had to the fact that the respondent’s premises were frequented by elderly people – whether the respondent, in providing a safe environment as occupier, should have had regard to the fact that some of these people might be inadvertent, thoughtless or careless - TORTS – NEGLIGENCE – CAUSATION – whether the flaws in the design and construction of the ramp materially contributed to the appellant’s fall
LEGISLATION CITED:	Civil Liability Act 2002 (NSW), Pt 1A; s 15(3); Sch 1, Pt 3, cl 6(1) Suitors’ Fund Act 1951 (NSW) Supreme Court Act 1970 (NSW)
CASES CITED:	Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 Brodie v Singleton Shire Council (2001) 206 CLR 512 Clarke v Coleambally Ski Club [2004] NSWCA 376 Commissioner for Railways v Anderson (1961) 105 CLR 42 Hall v Brooklands Auto Racing Club [1933] 1 KB 205 Jones v Bartlett (2000) 205 CLR 166 Luxton v Vines (1952) 85 CLR 352 Rogers v Whitaker (1992) 175 CLR 479 Shellharbour City Council v Johnson [2006] NSWCA 67 Vairy v Wyong Shire Council (2005) 223 CLR 422 Watson v George [1953] SASR 219 Wyong Shire Council v Shirt (1980) 146 CLR 40
PARTIES:	Gladys Mary Brock (Appellant) Hillsdale Bowling & Recreation Club Ltd (Respondent)
FILE NUMBER(S):	CA 40029/05
COUNSEL:	R Toner SC/S Walsh (Appellant) M L Williams SC (Respondent)
SOLICITORS:	Craddock Murray Neumann (Appellant) Thompson Cooper (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC8657/02
LOWER COURT JUDICIAL OFFICER:	McGrowdie ADCJ
LOWER COURT DATE OF DECISION:	16/12/04

CA 40029/05

IPP JA
TOBIAS JA
BASTEN JA

15 March 2007

BROCK v HILLSDALE BOWLING &

RECREATION CLUB LTD

Judgment

1 IPP JA: On the evening of 29 November 1999, the appellant, Ms Brock, fell while leaving the premises of the respondent, Hillsdale Bowling & Recreation Club Ltd. She was injured and claimed damages from the Club. McGrowdie ADCJ dismissed her claim. He nevertheless proceeded to assess damages, which he determined as being $63,062.22.

2 Ms Brock appeals against his Honour’s judgment.

3 At trial, the Club conceded that it owed Ms Brock a duty of care. The judge found that it had breached that duty but Ms Brock had failed to prove that the breach caused the fall. Ms Brock contends on appeal that the judge erred in finding that causation had not been established. The Club has filed a notice of contention whereby it asserts that the judge erred in finding that it breached its duty of care.

4 Initially, Ms Brock appealed against the assessment of damages on the ground that the awards made by his Honour for general damages and damages for future domestic care were “underestimated”. She asked that the matter be remitted to the District Court for reassessment of those heads of damage. The Club, in its written submissions, threatened to cross-appeal on damages should Ms Brock proceed with the damages appeal. In the course of argument, Mr Toner SC, who together with Ms Walsh appeared for Ms Brock, indicated that Ms Brock was no longer appealing against damages. Later, Mr Williams SC, who appeared for the Club, sought leave to cross-appeal. In the light of the attitude the Club had previously adopted, the Court refused leave.

5 On 29 November 1999, Ms Brock was 69 years of age. She knew the Club well. She had been a member for more than 15 years and had been its president. She had been at the Club for most of the day in question, assisting at a function and socialising. Between about 8.00 pm and 9.00 pm she decided to leave. The president of the Club suggested that she use the rear exit as it was “dark out there”. Her car was in a car park close to that exit. The main exit from the Club was in the front of the building but members sometimes used the rear exit.

6 Ms Brock walked through the rear doors onto a verandah 1680mm wide. A sloping ramp, 900mm long and 1400mm wide, led from the verandah over a flowerbed to a concrete path. The edge of the ramp was not flush with the verandah. It commenced 156mm below the verandah and sloped down to the concrete path. It was constructed at a slope of approximately 10° or 17% (approximately one in six). Ms Brock had “very occasionally” walked down the ramp. She had seen it many times, although she had never been there “at night time”.

7 Ms Brock commenced walking across the verandah towards the ramp. She said that she then “walked into mid-air”. Plainly, she was not looking where she was going and had forgotten about the drop from the verandah to the upper part of the ramp. She lost her balance and fell to the bottom of the ramp.

8 The following exchange is important:

“Q. What happened? You walked to the end of the verandah?
A: I must have done because I’ve just kept walking and forgotten where I was, apparently and then I walked – I just missed completely the ramp and down I went”.

9 The judge described Ms Brock’s case at trial as being that her fall “was as a result of an unsafe exit created by the nature of the construction of a ramp which did not meet the level of the surface of the verandah together with, or in the alternative, the [Club] had failed to properly illuminate the area”.

10 The judge found that the ramp created a potential danger to persons who left the Club at that point. He held that the danger was reasonably foreseeable. In this regard, his Honour said, “Neither expert appears to have addressed the possibility of the ramp being replaced by a level step or steps. On the evidence before me I would not conclude that the cost or difficulty in eliminating the hazard would be prohibitive”. The judge thereby found that the Club breached its duty of care to Ms Brock by constructing a means of egress from its premises that was potentially dangerous, particularly to persons who were inadvertent or did not watch where they were walking.

11 The judge held that only one of the outside lights illuminating the area was working and the lighting was inadequate. He considered that the inadequacy of the lighting also constituted a breach of duty on the Club’s part.

12 The judge, however, found that these breaches of duty were not causative of Ms Brock’s injuries. He observed that the mere fact of the fall did not mean that it must have been caused by the Club’s breach of duty. He said that the fall was equally consistent with Ms Brock simply not looking where she was going. He said it was not sufficient to conclude that the fall might have resulted from inadequate lighting or been caused by the nature of the exit. His Honour was not prepared to find that the fall was as a result of Ms Brock’s inattention; he said that the reason for her fall was “a matter of supposition or speculation”.

13 In my opinion, however, his Honour erred in finding that the reason for Ms Brock’s fall was speculative. Her evidence that she walked into mid-air and forgot where she was is clear evidence, from her own mouth, that she was not looking where she was going. This lack of attention caused her to fall when she stepped on to the ramp.

14 Mr Toner supported the judge’s finding that the design and configuration of the ramp amounted to a breach of duty on the Club’s part. This finding was challenged by Mr Williams and is an important issue in the appeal.

15 The ramp was unusual in two respects.

16 Firstly, its top was not flush with the verandah but was 156mm below the verandah edge. This feature, together with its gradient, made the ramp a potential hazard. The gradient tended to throw the person descending in a forward direction (even though its surface was covered with non-slip material). It must have increased Ms Brock’s instability once she stepped off the verandah. This was the view of the plaintiff’s expert, Mr Burn, which his Honour apparently accepted as he was entitled to do.

17 Secondly, the slope of the ramp was steeper than the gradient permitted under the Building Code of Australia (the maximum under the Code being 12.5%). That is not to say that the ramp contravened the Code; it was constructed before the Code became applicable. According to Mr Burn, the building was constructed prior to 1974, when Ordinance 70 applied, and under that Ordinance the permitted gradient was one in eight (to be compared with the ramp gradient of one in six). According to Dr Cooke, the Club’s expert, the Club building “dates from 1963”. He said that the applicable Ordinance is Ordinance 71, which says nothing about permitted gradients for pedestrian ramps. In the circumstances, the Court must regard the Code and the Ordinances as no more than indications tending to show what may be a reasonable gradient for a pedestrian ramp. I would infer from this material that the ramp was steeper than usual, relative to what has been regarded for some years as desirable practice.

18 In judging whether the design and configuration of the ramp constituted a breach of duty on the part of the Club, regard must be had to the fact that the Club, by its nature, was an institution that was frequented by some fairly elderly persons. The ramp formed part of the means of egress and ingress to the Club. Alcohol was served at the Club and on the evening in question Ms Brock consumed alcohol, although the judge did not find that she was affected thereby.

19 Dr Cooke said that the gradient of the ramp did not pose a hazard to pedestrians taking reasonable care. I accept that to be so, but that – in the circumstances of this case - is not the test for breach of duty. The Club, acting reasonably, should have had regard to the fact that some persons leaving the Club (particularly in the evening, after attending functions) might not be as careful of their own safety as would ordinarily be expected. As Menzies J stated in Commissioner for Railways v Anderson (1961) 105 CLR 42 at 67:

“I am not prepared to accept the broad proposition that there is never a duty of care owed by an occupier to a careless invitee or to an invitee who is aware of the dangerous condition of the premises to which he is invited.”

This remains the law: see Shellharbour City Council v Johnson [2006] NSWCA 67 at [18] and Clarke v ColeamballySki Club [2004] NSWCA 376 at [26] et seq.

20 There was a real possibility that some entrants to the Club might be inadvertent, thoughtless or even careless. The Club could not rely on all entrants taking reasonable steps for their own safety.

21 It was reasonably foreseeable that some of the older members might not be as stable on their feet when leaving the Club as younger, more alert and vigorous persons might be. The drop in level from the surface of the verandah to the top of the ramp, coupled with the relatively steep gradient of the ramp, posed a reasonably foreseeable hazard to such persons.

22 In the circumstances, I am not persuaded that the judge was wrong in finding that the Club breached its duty of care in the respect I have described.

23 As regards the lighting in the area, I do not think it played any part in the fall. Ms Brock did not fall because of bad lighting. Better lighting would have made no difference as she simply did not look where she was going.

24 The next question is whether the ramp materially contributed to the fall or whether Ms Brock, by reason of her failure to look where she was going, would have fallen even if the ramp had been constructed so as to eliminate the drop.

25 In this context, it is to be noted that Mr Toner rightly did not attempt to support the judge’s finding that the Club should have replaced the ramp with a step. This was not the case advanced by Ms Brock at trial. Mr Toner submitted that the ramp should have been configured so that it was flush with the level of the verandah. This was the argument propounded by Mr Burn.

26 His Honour reasoned that even if it had been possible to construct a ramp that met the top of the verandah, “there would still have been a change in the level for [Ms Brock] to negotiate and this would have required some conscious effort on her part”. He held that such a ramp “might not materially assist an inattentive plaintiff”.

27 I do not agree. On Ms Brock’s evidence, a cause of her loss of balance was her sensation of stepping into mid-air. This sensation was brought about by the drop from the verandah to the top of the ramp. Having lost her balance, it should be inferred as a matter of common sense that she was propelled forward by the slope. According to Mr Burn, the step down and the gradient of the ramp created a situation in which a fall was likely to occur when descending. Had the ramp been flush with the verandah, Ms Brock would not have stepped into mid-air. True it is that she would still have encountered the slope, but the slope without the drop would have been a far less hazardous situation.

28 In my opinion, on a common sense basis, the probabilities are that, had there been no change in the level between the surface of the verandah and the ramp, Ms Brock would not have fallen as she did. The evidence of Mr Burn which at least by inference, his Honour accepted, supported this conclusion.

29 Accordingly, I consider that the Club’s breach of duty was a cause of the fall.

30 The judge made no findings as to contributory negligence as, in the light of his conclusion, it was not necessary for him to do so. Nevertheless, contributory negligence was pleaded and senior counsel for both parties argued the issue before this Court.

31 In my view, there can be no doubt that Ms Brock was contributorily negligent by failing to look where she was going. The degree of her fault was substantial and I consider it to be equal to that of the Club. In my view, the damages found by the judge should be apportioned 50/50.

32 I propose the following orders:

(a) The appeal be upheld.

(b) The judgment of McGrowdie ADCJ be set aside.

(c) There be judgment and verdict for Ms Brock in the sum of $31,531.11 (being 50% of the damages assessed at $63,062.22).

(d) There be interest under the Supreme Court Act 1970 (NSW) on the sum $31,531.11 as from 29 November 1999.

(e) The Club pay Ms Brock’s costs of the trial and the costs of the appeal.

(f) The Club have a certificate under the Suitors’ Fund Act 1951 (NSW) if otherwise entitled.

33 TOBIAS JA: I agree with Ipp JA.

34 BASTEN JA: On 29 November 1999 Ms Brock missed her footing and fell when leaving the Hillsdale Bowling & Recreation Club premises at Hillsdale. She suffered a fracture of her elbow and other injuries.

35 She commenced proceedings in the District Court against the Club, but was unsuccessful. The trial judge nevertheless, and in accordance with established practice, assessed her damages at $63,062.22. However, he did not address a defence of contributory negligence, that not being necessary in the circumstances.

36 Even if successful in establishing liability, the award of damages would be reduced by a significant proportion on account of contributory negligence. Although the notice of appeal sought to challenge the assessment of damages, it had little prospect of success and was met by a foreshadowed cross-claim, based on the proposition that the trial judge had failed correctly to apply s 15(3) of the Civil Liability Act 2002 (NSW) in making allowance for domestic services. Understandably, the appeal against the assessment was abandoned at the hearing. (Because the proceedings were commenced on 28 November 2002, before the commencement of Part 1A of the Civil Liability Act, the principles to be applied in determining negligence contained in that Part did not apply to this appeal: see Schedule 1, Part 3, cl 6(1).)

37 It was not in dispute that the Club owed the Appellant a duty to take reasonable care for her safety in relation to the condition of the premises which it occupied. The case at trial was run on the basis that there was a dispute concerning breach of that duty and a dispute as to whether, if there were a breach, the necessary causal connection with her injury was established.

38 A determination of breach involves a question of fact. In the present case, the question was whether a means of access from the veranda of the Club to ground level, which appeared to involve a drop of approximately 30cm, was relevantly unsafe because it involved a step down of 15.6cm onto a sloping ramp, with a gradient of 15.5%. That was an assessment requiring an evaluative judgment, but involving no question of principle. The Respondent, however, challenged the finding of breach, a question which will be addressed below.

Causation

39 In relation to causation, the question was whether it would have made any difference if there had been a different configuration, either with a ramp of a lesser gradient, and without an intervening step or, possibly, by two flat steps.

40 The trial judge concluded that causation was not established. On any view, the Appellant had to “negotiate” the change in level which “would have required some conscious effort on her part”: Judgment, p 21. She fell because she was inattentive and “simply was not looking where she was going”: Judgment, p 20. Given that there was a change in level to be negotiated, his Honour was not satisfied that the Appellant would not have missed her footing and fallen in any event.

41 Precisely how the Appellant missed her footing was unclear. She had been accompanied to the door of the Club by the President, Mr Shields, who had exchanged pleasantries and locked the door behind him after she had passed through. He did not see her fall. Nor did anybody else see her fall. She did not know how she fell. In her evidence-in-chief she described what happened in the following manner (Tcpt, 16 September 2004, p 20):

“A. I was standing there – there’s a mat just outside … at that door … where I would’ve been standing when he spoke to me. … I just continued walking and … walked into mid-air.
Q. What happened? You walked to the end [sic] of the veranda?
A. I must’ve done because I’ve just kept walking and forgotten where I was apparently and I walked – I just missed completely the ramp and down I went.
Q. When you say ‘apparently’, is that what people have told you since?
A. Yeah, well, I think I was in a bit of shock by the time I fell and I wouldn’t have had much recollection of what really happened.”

42 The question first set out above may have been wrongly recorded because the Appellant walked across the veranda to the edge, not to the “end”. The answer should be so understood. The rest of her evidence was that she landed on her right hand side on her shoulder and right arm.

43 She agreed that she had been a member of the Club since the early 1980s and, no doubt, for a period of more than a decade prior to the accident. She had had a fall on concrete on the Club premises some 18 months before the date of the present accident: Tcpt, pp 42-43. She knew of the existence of the ramp and step, but had used it very occasionally: Tcpt, p 44. She agreed that she had been drinking on the evening in question, but was not significantly affected by liquor. There was no evidence of any injury suggesting she had twisted her ankle, nor giving any other indication as to precisely how she missed her footing.

44 The trial judge held that the Appellant had failed to establish causation in these circumstances and no error has been shown in his Honour’s reasoning. It was an inference which would have had to be drawn from a very slight factual basis and his Honour was entitled not to draw it.

45 If it were necessary to reconsider the finding on causation, I would uphold his Honour’s conclusion. If there had been a second step, in place of a ramp, there is no reason to suppose that the Appellant would not have fallen, as she did. To succeed in her claim, she needed at least to establish that, if advised of the need to reconfigure the point of access, the Club would have raised the ramp to the level of the veranda and extended it so that the gradient conformed to current standards. However, if that had occurred, the end of the ramp would extend across the path which it was designed to meet. As noted by Dr John Cooke, a consultant architect who prepared a report for the Respondent (at par 24):

“The ramp could not be altered as suggested by Mr Burn as it would create a trip hazard at the lower level if raised to eliminate the step at the veranda and/or if lengthened to reduce the gradient … .”

46 This was not a conclusion requiring expertise: it is obvious. If the Club was unreasonable in leaving the ramp as it did, it would have been even more unreasonable had it reconfigured the ramp as proposed by Mr Burn. The Appellant ran her case on the basis of Mr Burn’s proposal, because she had to do so to have a chance of success on the issue of causation. In my view this contention should be rejected and the finding with respect to absence of causation upheld.

Breach of duty

47 The Club also sought to defend the appeal on the basis that there should not have been a finding of breach of duty. At trial, the claim of breach appears to have been run on three bases. The first was that the area by which access was provided to the step and ramp was inadequately lit. His Honour appears to have upheld a breach of duty based on this complaint, stating at Judgment, p 19:

“I consider that the most likely situation was that only one light was working and that the illumination of the differences in level would have been inadequate such as to constitute a breach of duty on the defendant’s part.”

However, he held that the evidence did not establish that the level of illumination contributed to her fall.

48 The evidence as to the degree of illumination on the night in question was extremely slight. The trial judge relied on the fact that the plaintiff had said that the area was “dark” when she fell. However, she also gave evidence that “the new lighting had not been installed when she fell”, a belief which his Honour stated was “clearly incorrect”: Judgment, pp 16-17. Having reached that conclusion, the basis upon which his Honour concluded that the lighting was inadequate was that one of the fluorescent tubes must have failed and not been replaced. The only real support for that in the evidence was the statement by Ms Michelle Cullen, a former employee of the Club who gave evidence about the lighting in the following terms (Tcpt, p 57):

“Q. Were you aware of the lighting around the outside of the Club during that period of time back in around 1999?
A. In one word crap.
Q. Which lighting are you talking about in particular and what precisely do you mean by that?
A. Well, the outside lighting was always bad as far as I can remember. The inside lighting was more my thing, if I couldn’t see inside I get somebody on to the job to hurry it on. No, bad, very bad lighting.
Q. In particular I am talking about the veranda around the edge where the step ramp it [sic], how was that lighting?
A. That’s worse because of the fact that it’s not used all that often, the lighting inside is a lot dimmer. …”

49 In cross-examination Ms Cullen gave evidence that the lighting had never changed, and particularly that the lights in place at the date of the accident had not been changed in May 1998, as other evidence indicated. The cross-examination included the following passages (Tcpt, pp 62-63):

“Q. Do you recall that when you first started working there [in 1994], … there were different lights, old lights?
A. To my knowledge the lights have never been changed.
…
They look the same as far as I know, it’s only the tubes that ever got changed.
Q. I want to suggest to you that those lights in fact went in in May 1998?
A. Well, they’ve obviously been put in the same place as the ones that were there before that.
Q. Yes, but they replaced lights that looked … nothing like it. Totally different size, shape and appearance?
A. As I said, I don’t – didn’t sort of go to work to check out the lights. …
Q. I suggest to you that before May 1998 the lights that were there did not work at all and hadn’t worked for some time. What do you say to that?
A. I just remember it always being dark out there.”

50 His Honour summarised this evidence, but did not expressly indicate how much of it he accepted, if any. He noted that Ms Cullen had ceased employment with the Club in late 2003 for reasons about which she was vague and that her membership had been rejected for reasons of which she said she was unaware. After referring to the evidence on lighting generally, his Honour stated (p 17):

“There was no direct evidence that on the night in question the lights were on or off or that either one of the lights was not working. I accept … the evidence that the tubes were replaced on an ad hoc basis. One tube was out when [the plaintiff’s expert] did his inspection.”

51 The conclusion set out at [47] above involved a significant degree of speculation. I do not see in the reasoning of the trial judge any basis for preferring one view as to the state of the lighting over another. I would conclude that the facts fall squarely within the principle explained in Luxton v Vines (1952) 85 CLR 352: the plaintiff did not establish on the probabilities that the lighting was inadequate on the night in question.

52 On the other hand, this conclusion may not matter because the trial judge’s conclusion that inadequate lighting had no relevant causal connection with the injury, was not seriously disputed.

53 The second basis was that the gradient of the ramp was in excess of that provided for under the current Building Code of Australia, although it appears to have been common ground that it did not breach any regulatory requirement at the time of its construction in about 1964. The gradient of a ramp usually gives rise to safety issues because, if too steep, pedestrians may slip on it. There was no suggestion that the Appellant slipped in the present case and this does not appear to have been the basis upon which his Honour found breach of duty.

54 The third element in the complaint of breach was that the combination of the ramp and the step down onto the ramp involved a “hazardous construction”: Judgment, p 20. He held (at p 14), accepting an opinion expressed by a consulting engineer, “that there was a risk associated with the configuration in view of the sharp discontinuities of the upper surfaces and that, without making any allowance for poor lighting, the addition of the step creates a situation in which a fall is likely to occur when descending”. The phrase ‘sharp discontinuities’ appears to have been a reference to the edge of the veranda.

55 If his Honour’s finding with respect to causation was, in relation to the construction of the ramp, in error, it becomes necessary to consider the Respondent’s contention that there was no breach of duty in the configuration of the step and ramp. It is necessary to commence with the Appellant’s best evidence in support of this finding. Two passages were relied upon in the report of the Appellant’s expert, which read as follows:

“This accident could have been prevented by ensuring adequate lighting was available and constructing the ramp in such a manner that the top finished flush with the main slab.”

The expert also concluded:

“It is also considered that a step down of 160mm on to a slope of 15.5% (4% greater than the maximum acceptable slope) or 7 times that nominated in clause D2.14 above [dealing with the gradients now required in the Code for “stairway landings”] is unacceptable.”

56 His Honour’s conclusion that the means of access involved a foreseeable risk may be accepted, but is not sufficient to establish breach of duty. His Honour’s conclusion that the addition of the step created a situation in which a fall was “likely” to occur overstates the degree of risk. The ramp and step appear to have been in position for some 35 years: there was no evidence of any prior fall, or complaint that it was unsafe. People are required to negotiate steps and slopes involving a potentially far greater risk of injury to the inadvertent, every day of their lives. In my view the Appellant did not demonstrate on the evidence more than that access by way of two steps, or possibly a ramp without a step, might have been safer. She did not demonstrate that the Club had acted unreasonably in failing to replace the existing configuration prior to her accident.

57 The fact that the access to the ground from the veranda could have been constructed differently, and even more safely, does not mean that there was a failure to take reasonable care in maintaining the existing construction: see Jones v Bartlett (2000) 205 CLR 166 at [22]-[23] (Gleeson CJ). Further, in considering breach, it is necessary to take into account the risk to persons taking reasonable care for their own safety: Brodie v Singleton Shire Council (2001) 206 CLR 512 at [163] (Gaudron, McHugh and Gummow JJ). Finally, it is also important to bear in mind that foreseeability of risk of injury is by no means a sufficient condition for a finding of negligence. As has often been noted, where a risk has materialised, it can rarely be said that the risk itself was unforeseeable in advance.

58 The implications of the Appellant’s case in support of a breach of duty must also be addressed. While of course the conduct of individuals, who may otherwise be identified as reasonable and responsible people, will not define the limits of the tort of negligence (as demonstrated by Rogers v Whitaker (1992) 175 CLR 479) nevertheless, the test remains one which requires application of “the standard of ordinary reasonable human conduct”: see Ligertwood J in Watson v George [1953] SASR 219, adopted by Gummow and Hayne JJ in Jones v Bartlett, supra, at [185]-[186].

59 The Court heard evidence from Mr Shields, the President of the Club at the time of the accident. In relation to the possible inebriation of the Appellant, the trial judge accepted Mr Shields’ evidence that he did not notice that she was significantly affected by alcohol and that “it would have been a concern to him had she appeared to be inebriated” in relation to the short drive to her home: Judgment, p 12. Similarly, in considering the state of the lighting, his Honour noted that it was Mr Shields himself who had directed her to use the particular door instead of the main doors, advising her that it was “dark out there”, referring to the necessary walk to the carpark from the main doors. His Honour continued (Judgment, p 17):

“It is perhaps inconsistent that he would then usher the plaintiff out [of] an exit with no illumination.”

One might add that it would also be odd for Mr Shields, who appears to have been accepted as a reasonable, responsible and caring person, to have redirected the Appellant to an exit which he should have known was unsafe. The Appellant’s contention suggests that Mr Shields was either ignorant or derelict in his duty as President of the Club.

60 The implications go further: those responsible for the maintenance and operation of the Club must have failed to identify or act on the unsafe exit for many years. Whilst it is necessary to consider whether premises were defective according to “current community standards” and accepting that those standards may change over time (see Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 308-309 (Mason, Wilson and Dawson JJ), referred to with approval in Jones v Bartlett, supra, at [104]-[106] by McHugh J), nevertheless, the Appellant’s argument did not assay the question of when, over the last 40 years, the construction of the step and ramp first gave rise to a breach of duty. In fact, the dereliction of duty would appear to extend to the Appellant herself, who had been, by the time of the trial on the board of the Ladies’ Bowling Club for some time and was then engaged on her second stint as President. (Her first stint had been at the time of the accident.) The relationship of the Ladies’ Bowling Club to the Respondent was not explored in the evidence, but it may be assumed that the President of that arm of the Club had some ability to influence the operation of the Club and at least identify unsafe aspects of the premises.

61 The Appellant’s argument that there was a breach of duty on the part of the Club which she helped to run, albeit a breach which had not, on the evidence, been identified by any member of the executive of the Club over years and even decades, strongly suggests that the test being applied is not that of the reasonable member of the community, but some artefact of the law. That may result from a mechanistic approach to the so-called “Shirt calculus” which is often treated as requiring a somewhat mechanical assessment of the degree of risk, the seriousness of the possible harm and the difficulty, inconvenience and cost of ameliorative measures. Further, as explained by Hayne J in Vairy v Wyong Shire Council (2005) 223 CLR 422 at [124], “because the inquiry is prospective, it would be wrong to focus exclusively upon the particular way in which the accident that has happened came about”. His Honour continued:

“In particular, the examination of the causes of an accident that has happened cannot be equated with the examination that is to be undertaken when asking whether there was a breach of duty of care which was a cause of the plaintiff’s injuries. The inquiry into the causes of an accident is wholly retrospective. It seeks to identify what happened and why. The inquiry into breach, although made after the accident, must attempt to answer what response a reasonable person, confronted with a foreseeable risk of injury, would have made to that risk. And one of the possible answers to that inquiry must be ‘nothing’.”

62 At [128], his Honour continued:

“If, instead of looking forward, the so-called Shirt calculus is undertaken looking back on what is known to have happened, the tort of negligence becomes separated from standards of reasonableness. It becomes separated because, in every case where the cost of taking alleviating action at the particular place where the plaintiff was injured is markedly less than the consequences of a risk coming to pass, it is well nigh inevitable that the defendant would be found to have acted without reasonable care if alleviating action was not taken.”

63 In my view the risk which his Honour was addressing in Vairy would be fulfilled if the finding of breach of duty were upheld. It is at least plausible that a modern localised equivalent of the “man on the Clapham omnibus” – see Hall v Brooklands Auto Racing Club [1933] 1 KB 205 at 224 (Greer LJ) - is a member of the executive of the Hillsdale Bowling and Recreation Club. Such a finding would condemn a generation of members as having been derelict in their duty. That would not be a decisive objection but it would suggest that such a decision was not consistent with the relevant legal standard.

64 On any view, the Appellant would suffer a reduction in her damages of approximately one-half for contributory negligence. That means that the amount in issue in this case is of the order of $30,000. I would not have granted leave to appeal, but there is no application to revoke the grant. The appropriate order is that the appeal be dismissed with costs.

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20/03/2007 - of instead of on - Paragraph(s) 63