Brown v Owners Corporation SP021532U (Ruling No. 1)
[2013] VSC 126
•21 MARCH 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2012 00405
| COLIN KEITH BROWN | Plaintiff |
| v | |
| OWNERS CORPORATION SP021532U AND BENSIA THIRTEEN PTY LTD | Defendants |
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JUDGE: | DIXON J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 6 MARCH 2013 | |
DATE OF RULING: | 21 MARCH 2013 | |
CASE MAY BE CITED AS: | BROWN v OWNERS CORPORATION SP021532U AND ANOR (Ruling No. 1) | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 126 | |
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Tort – duty of care – occupiers’ liability - whether duty owed by occupier to entrant injured climbing a fence – whether risk of injury far fetched or fanciful – jury directions.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Murdoch SC with Mr D Seeman | Robinson Gill Lawyers |
| For the Defendants | Mr R Gillies QC with Ms M Tsikaris | Norton Rose Australia |
HIS HONOUR:
By paragraph 18 of their defence, the defendants contend that they owed no duty of care to the plaintiff because the risk of the plaintiff sustaining injury was not reasonably foreseeable in the circumstances. By paragraph 18 of the defence it is also pleaded that for the same reason the defendants breached no duty of care. The former is a question of law that I must decide while the latter is a question for the jury.
The defendants submitted that I should rule on the first limb of this defence whether, as a matter of law, no duty of care, whether at common law or pursuant to s 14B of the Wrongs Act, was owed to the plaintiff by the defendants. If that defence must succeed the consequence is that the proceeding must be dismissed. The application was rejected for reasons to later be provided. These are my reasons.
The defendants firstly submitted that the statutory requirement of reasonableness in the identification of an occupier’s duty to a person on the premises – to take such care as in all the circumstances of the case is reasonable to see that a person on the premises will not be injured – is effectively the same as the common law duty to exercise reasonable care to an entrant. In each case, the concept of reasonableness involves a question of foreseeability and invokes the same inquiry into foresight. I agree.
The defendants contend that when the issue is whether a duty of care is owed, a risk of harm is reasonably foreseeable if the risk is not far-fetched or fanciful. This is objectively assessed. The defendants submit that the plaintiff’s injury was sustained in bizarre and unforeseen circumstances. The event was far-fetched and fanciful. The risk that the plaintiff might climb the fence in the circumstances that prevailed was not reasonably foreseeable. For that reason no duty is owed. It is this latter contention that I reject.
In Tame v New South Wales[1] Gummow and Kirby JJ said:
… the central inquiry, which is whether, in all the circumstances, the risk of the plaintiff sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far-fetched or fanciful.[2] It may be that, in some circumstances, the risk of a recognisable psychiatric illness to a person who falls outside the notion of "normal fortitude" is nonetheless not far-fetched or fanciful. If that is so, it is then for the tribunal of fact to determine what a reasonable person would do by way of response to the risk, in the manner indicated in Wyong Shire Council v Shirt.
[1](2002) 211 CLR 317, 385 [201].
[2]See Wyong Shire Council v Shirt (1980) 146 CLR 40, 48.
In Koehler v Cerebos (Aust) Ltd,[3] another psychiatric injury case, the plurality[4] observed, discussing the test for when a duty is owed:
The central inquiry remains whether, in all the circumstances, the risk of a plaintiff (in this case the appellant) sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far-fetched or fanciful.
And later:
The relevant duty of care is engaged if psychiatric injury to the particular employee is reasonably foreseeable. That is why, in Hatton, the relevant question was rightly found to be whether this kind of harm to this particular employee was reasonably foreseeable.[5]
[3](2005) 222 CLR 44, 57 [33].
[4]McHugh, Gummow, Hayne and Heydon JJ.
[5]Ibid.
In a separate judgment, Callinan J observed that the line between a risk that is remote or extremely unlikely to be realised and one that is far-fetched or fanciful is a very difficult one to draw but Wyong Shire Council v Shirt held that any risk, however remote or extremely unlikely its realisation may be, that is not far-fetched or fanciful, is foreseeable. That decision has been constantly applied, throughout this country and in the High Court, since it was decided. Callinan J considered he was bound to apply it.
In Bainbridge v James & Ors[6] the plaintiff, while dressed as Father Christmas, was assaulted by a teenage boy at a shopping centre. He appealed the dismissal at trial of his claim against the owner of the shopping centre. Harper JA with whom the other members of the court agreed considered that a violent attack upon somebody dressed as Father Christmas was bizarre and the appellant’s experience appeared unique. Harper JA stated:[7]
Liability in negligence turns on foreseeability and proximity, the total relationship between the parties, and questions of fairness, policy, practicality, proportion, expense and justice.[8] Consistently with this, the law has always taken the position that employers are not guarantors of the safety of their employees: the employer’s obligation is to exercise reasonable care, not to warrant safety. There is, of course, a relationship of proximity between all employers and each of their employees; but unforeseeable risks are not covered by its mantle. (my emphasis)
[6][2013] VSCA 12 (1 February 2013).
[7]Ibid, at [12].
[8]Karatjas v Deakin University [2012] VSCA 53 (Nettle JA, with whom Hansen JA and Kyrou AJA agreed).
The court observed that the onus of proving the existence of a reasonably foreseeable risk against which the owner of the shopping centre had a duty of care to protect the appellant lay upon the appellant. Evaluation of the foreseeability of risk is a matter of objective assessment. The court concluded that the risk that the appellant would be assaulted while performing his role as Father Christmas was far-fetched and fanciful. The assault upon him could not have been foreseen as anything more than a possibility that any person in a public place during times when the public is present might be assaulted.
The scale of foreseeability of risk when considering whether a defendant owed a duty of care to a plaintiff runs from ‘near certainty’ at one end to ‘far-fetched or fanciful’ at the other. Clearly, a duty of care can exist to avoid an improbable risk because an improbable risk is foreseeable without being far-fetched or fanciful. The authorities make clear that the point on the continuum at which a risk is not foreseeable is when, objectively assessed, the risk is far-fetched or fanciful.
Applying these authorities, the defendants contend that the conduct of the plaintiff in choosing to resolve his dilemma by climbing a high fence was far-fetched and fanciful. It was a bizarre response outside the scope of reasonable foresight. Not being reasonably foreseeable, there was no duty to take such care as in all the circumstances of the case is reasonable to see that a person on the premises will not be injured by climbing the fence.
The plaintiff submitted that what has to be reasonably foreseeable is not the mechanics of the injury, not how it came to pass, or the injury itself, but the risk of a person engaging in an activity that resulted in an injury of the type revealed by the plaintiff’s circumstances. If the risk of that kind of harm or injury is not far-fetched or fanciful, it is reasonably foreseeable and an occupier must take care that a person on the premises is not injured by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises.
The correct approach to the identification of the duty of an occupier in relation to foreseeable risk was in issue in Amaca Pty Ltd v King.[9] In this proceeding, the plaintiff, having contracted mesothelioma from exposure to asbestos dust, sued the defendant as occupier. The proceeding concerned circumstances that pre-dated Part IIA of the Wrongs Act 1958 and common law principles applied.
[9][2011] VSCA 447 (22 December 2011).
One ground of appeal was that the trial judge had erroneously glossed over the task of defining the relevant duty of care in his directions by treating the respondent’s claim as one simply based on occupier’s liability. The court stated:[10]
We accept that the question in issue was whether the appellant owed the respondent a relevant duty of care. Over the last several years, the High Court has emphasised the importance of identifying the scope, extent and reach of a duty.[11] It is no longer enough to define an occupier’s duty to a lawful entrant merely in terms of reasonable care in relation to the physical state and condition of premises. It is necessary to determine whether an occupier owes an entrant a duty to take reasonable care to guard against the particular type of harm which befalls the entrant; although not necessarily the precise sequence of events leading up the injury.[12]
The Court of Appeal was satisfied that the trial judge told the jury just that.
[10]Ibid, at 47
[11]Although, according to Fleming’s, The Law of Torts, 10th ed, at 124, thereby blurring the distinction between duty and breach.
[12]Sydney Water Corporation v Turano (2009) 239 CLR 51, 70 [46].
However, the appellant contended the jury was misdirected as to the relevant duty of care when the trial judge instructed them that the law says that a risk of injury which is quite unlikely to occur may, nevertheless, be foreseeable in the sense that its occurrence is not far-fetched or fanciful. The court observed:[13]
... The question whether the appellant owed the respondent a relevant duty was a question of law for the judge.[14] It was his Honour’s task to determine whether it was reasonable that the appellant have in contemplation such a risk of injury. The only questions for the jury were breach, causation, and the measure of damage.[15] It was, however, necessary for the jury to be directed as to the existence and scope of the duty; for, without that, they could not determine the question of breach. By instructing the jury that it must consider whether a reasonable occupier would have foreseen that Mr King’s presence in the factory for a short period to perform maintenance work on the machine involved a risk of exposure to asbestos dust and fibres and that such exposure involved a risk of him contracting a lung disease such as mesothelioma, the trial judge provided appropriate instruction as to the existence and scope of the duty without need of further amplification or analysis.[16] The instruction that a risk that is not far fetched but is unlikely to occur may be reasonably foreseeable is unexceptionable and, read in conjunction with the balance of the direction on duty of care, involved no misdirection as to the scope of the duty.
[13][2011] VSCA 447 (22 December 2011), at [ 51]
[14]Swain v Waverley Municipal Council (2005) 220 CLR 517, 520 [4].
[15]Ibid 520 [6].
[16]Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254, 262 [13] (Gleeson CJ).
As a case of occupier’s liability, that case concerned a relationship of a kind in which the existence of the relevant duty of care is well established, and its nature is well understood. Considerations that might arise when considering another duty of care were not significant. The court observed that:
… It is well established that an occupier of premises owes a duty of care to a person lawfully upon the premises, in relation to the physical state and condition of the premises and in relation to activities on the premises, to take reasonable care to guard against reasonably foreseeable risk of physical injury resulting from the state or condition of the premises or those activities.[17] The basis of the duty is that the occupier ‘has control over and knowledge of the state of the premises.’[18]
[17]Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479, 488; Modbury Triangle v Anzil (2000) 205 CLR 254, 263 [17] (Gleeson CJ).
[18]Commissioner for Railways (NSW) v McDermott [1967] 1 AC 169, 186; Thompson v Woolworths (Q’land) Pty Ltd (2005) 221 CLR 234, 243 [24].
In Sydney Water Corporation v Turano[19] the High Court stated that:
Reasonable foreseeability of the class of injury is an essential condition of the existence of a legal obligation to take care for the benefit of another. The concept is relevant at each of the three, related, stages of the analysis of liability in negligence: the existence and scope of a duty of care, breach of the duty, and remoteness of damage. At the first stage, the inquiry has been said to involve the assessment of foreseeability conducted at "a higher level of abstraction” than at the subsequent stages. However, to speak of a higher level of abstraction in dealing with that first stage does not support a formulation of duty in terms devoid of meaningful content. It remains, as Gleeson CJ observed in Tame v New South Wales, that the concept is to be understood and applied with due regard to the consideration that, in the context of the issue as to duty of care, it is bound up with the question of whether it is reasonable to require a person to have in contemplation the risk of injury that has eventuated.
It was not necessary that the precise sequence of events leading to Mrs Turano's injury be foreseen. However, it was necessary to show that in 1981 it was foreseeable by Sydney Water that laying a water main in a bed of sand in this location involved a risk of injury to road users.
[19](2009) 239 CLR 51, at 70 [45] (footnotes omitted).
What emerges from these authorities is that on this application:
(a)The question whether the defendants owed the plaintiff a relevant duty is a question of law for the judge.
(b)The judge must determine whether it was reasonable that the defendant have in contemplation a risk of injury of the class or type suffered by the plaintiff;
(c)The risk of the plaintiff sustaining that type of injury is reasonably foreseeable if the risk, in the relevant circumstances, is not fanciful or far fetched;
(d)In having regard to the relevant circumstances, it is not necessary that the precise sequence of events leading to injury be foreseen;
(e)Evaluation of the foreseeability of risk is a matter of objective assessment.
The relevant inquiry for me on this application is whether it was reasonably foreseeable by the defendants that failing to provide a safe form of emergency egress from the property, when the driveway gates are disabled by a power failure involved a risk of injury to persons on the premises who attempt to exit from the premises by climbing the fence. That inquiry involves objective assessment of whether there is a risk that persons on the premises in those circumstances might attempt to exit from the premises by climbing the rear fence.
Having considered the evidence that has been presented to the jury, I have no hesitation in concluding that the plaintiff’s response to his inability to open the driveway gate was reasonably foreseeable. It is reasonably foreseeable that a person on the premises in that predicament would not simply wait for assistance. It is reasonably foreseeable that persons on the premises in that predicament might scale the back fence. There is evidence that the defendants knew that tenants who were unable to open the gate had scaled it. Scaling the gate is, on any objective assessment, a more difficult physical challenge for a person of average physical ability than scaling the back fence, particularly from the inside.
The fence did not present any unusual features that might suggest otherwise. It was a typical suburban fence consisting of a wooden skin on a frame of vertical posts with three railings at a height of about two metres. It is reasonable to infer on the evidence that the purpose of the fence is to delineate the property boundary and provide some deterrence to crossing that boundary other than through gates. It is common experience that a fence that is intended not to be scalable by any person will present a greater barrier than a typical suburban backyard fence.
It is in no way fanciful or far fetched to expect that younger and fitter persons, who may well be lawfully on the premises, could scale over such a fence without injury but, at the same time, it is clearly an activity that carries an appreciable risk of injury, even for young, fit climbers. The evidence before the jury that persons of unknown climbing ability were scaling the driveway gate when the gate could not be opened clearly permits the conclusion not just that such activity was reasonably foreseeable, but that the defendants actually knew that it occurred when the gate could not be opened for whatever reason. It is not far fetched or fanciful that persons with similar or lesser physical ability than the plaintiff may lawfully come onto the premises. It is not far fetched or fanciful to foresee that a person who engages in the activity of scaling a structure such as a gate or a fence of about 2 meters in height risks sustaining an injury to the foot.
For these reasons I reject the defendants’ contention that the incident was bizarre and that the risk to a person on the premises confronted with unopenable exit gates sustaining an injury by scaling a fence was far-fetched and fanciful.
I propose to direct the jury that:
(a)the defendant’s duty of care extended to taking reasonable care to ensure that ingress and egress from the premises to Margaret Street could be safely achieved in all reasonably foreseeable conditions in which visitors might enter or leave the apartments, including, in particular, that the driveway gate could not be opened in the usual way;
(b)that duty was to take reasonable care to guard against reasonably foreseeable risk of physical injury resulting from the state or condition of the premises or those activities;
(c)a risk of injury which is quite unlikely to occur may, nevertheless, be foreseeable in the sense that its occurrence is not far-fetched or fanciful;
(d)the jury would need to be satisfied on the balance of probabilities that the defendants should reasonably have foreseen that -
(i)there was a risk that the plaintiff might scale the fence to exit from the premises;
(ii)there was a risk that the plaintiff might suffer a foot injury in the activity of scaling a fence; and
(e)the defendants with their knowledge and experience did not respond to that risk as a reasonable occupier of the apartments would have responded.
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