Dallarooma Pty Ltd t/as CDB Chauffeured Transport v Hyam

[2014] ACTCA 22

COURT OF APPEAL
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Dallarooma Pty Ltd t/as CDB Chauffeured Transport v Hyam

Medium Neutral Citation:

[2014] ACTCA 22

Hearing Date(s):

13 May 2014

DecisionDate:

26 June 2014

Before:

Refshauge, Penfold and Rares JJ

Decision:

The appeal is dismissed with costs.

Category:

Principal Judgment

Catchwords:

NEGLIGENCE – whether appellant operator of transport vehicle business liable in negligence for respondent’s personal injuries under Civil Law (Wrongs) Act 2002 (ACT) – where respondent passenger’s clothing caught on lever in passenger vehicle when alighting causing her to fall – whether appellant commercial transport business operator negligent in failing to create system of inspection for safety risks in its passenger vehicles – whether appellant had duty of care to ensure that its vehicles in such condition that passengers able to enter and alight with reasonable safety from risk of personal injury – whether risk of injury foreseeable – whether appellant entitled to rely solely on certification of bodyworks installer after modifying it that vehicle sound – whether appellant was or ought to have been aware clothes or accessories of passengers might catch when entering or alighting on obvious protrusions in vehicle created by bodywork modifications – where appellant had no system for requiring reports by its employees of incidents involving passengers falling or suffering accidents in connection with journeys on its vehicles

HELD – standard of care required appellant to assess whether work performed by bodyworks installer required precautions a reasonable person would have taken against a foreseeable not insignificant risk of harm – risk of passenger’s clothes or accessories catching on vehicle’s interior was obvious risk requiring precautions – appeal dismissed

Legislation Cited:

Civil Law (Wrongs) Act 2002 (ACT), ss 40, 42 , 43, 44, 45

Cases Cited:

Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420

Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330

Texts Cited:

Peter Nygh and Peter Butt, Butterworths Australian Legal Dictionary (LexisNexis Butterworths, 1997)

Parties:

Dallarooma Pty Ltd trading as CBD Chauffeured Transport (Appellant)

Cara Cai Hyam (Respondent)

Representation:

Counsel:

Mr M Williams SC (Appellant)

Mr ID Roberts SC (Respondent)

Solicitors:

DLA Piper Australia (Appellant)

Hall Payne Lawyers (Respondent)

File Number(s):

ACTCA 67 of 2013; SC 26 of 2008

Publication Restriction:

No

Decision under appeal: 

Court/Tribunal:                ACT Supreme Court         

Before:  Master Harper       

Date of Decision:            25 September 2013          

Medium Neutral Citation: [2013] ACTSC 200

Refshauge and Rares JJ:

1. This is an appeal against a finding by the Master that the appellant was negligent in failing to put in place a system of inspection for safety risks in its passenger vehicles.  The Master awarded $242,250 in damages and that determination is not challenged.  His Honour also made an unchallenged finding that Ms Hyam had not been guilty of any contributory negligence.

1. The respondent, Cara Hyam, was a flight attendant with Virgin Blue Pty Ltd.  On 23 January 2005, she had been transported from Canberra Airport to the Crowne Plaza Hotel in Canberra City where she and the other crew were to stay overnight.  The appellant’s Volkswagon Transport mini-bus arrived at the hotel at about 10:30 pm.  As she alighted from the mini-bus, the hem of Ms Hyam’s uniform skirt caught on a protruding lever marked in grey/green on the photograph below.

The lever in issue is shown with the grey/green arrow closest to the doorway and above the tubular frame.

1. The lever was associated with the mechanism for moving the second row of seats in the mini-bus forward to make room for passengers seated behind that row to enter or alight by moving forward, towards the by now tilted row of seats and exposed lever and turning left to descend the stairs to the street or pavement.  Ms Hyam fell down the stairs of the mini-bus and out onto the pavement injuring her tongue (which she bit), knee and lower back.  The lower back injury never resolved and that injury was the principal basis of his Honour’s award of compensation.

1. The critical issue on the appeal is whether the trial judge erred in finding that the appellant ought to have known of the not insignificant risk that a passenger’s clothing might catch on the lever and that a reasonable person in the appellant’s position would have taken simple precautions to make an inexpensive physical modification to the protruding lever that would probably have avoided the quite low risk of serious harm to an alighting passenger in the position of Ms Hyam.

The statutory scheme

1. Relevantly, Ch 4 of the Civil Law (Wrongs) Act 2002 (ACT) applied to the making of a determination whether the appellant was liable to Ms Hyam in negligence. Importantly, s 42 provided:

“42   Standard of care

For deciding whether a person (the defendant) was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant’s position who was in possession of all the information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose.”

1. A person is not negligent in failing to take precautions against a risk of harm unless the risk was one which the person knew or ought to have known (i.e. it was foreseeable), was not insignificant and, in the circumstances, a reasonable  person in the person’s position would have taken those precautions (s 43(1)). In assessing those matters the Court must consider at least the probability that the harm (i.e. here, personal injury: s 40) would happen if precautions were not taken to avoid a risk of harm (including, as s 44(a) provides, the taking of precautions to avoid similar risks of harm) for which the person is responsible, the likely seriousness of that harm, the burden of taking precautions to avoid the risk of harm and the social utility of the activity creating that risk (s 43(2)). The fact that a risk of harm could have been avoided by doing something different does not, of itself, give rise to or affect liability for the way in which it was done (s 44(b)) and nor does the taking of action subsequently that would have avoided the risk (s 44(c)). And such subsequent action is not itself an admission of liability in relation to the risk.

1. The principles of causation are stated in s 45 as follows:

“45General principles

(1)A decision that negligence caused particular harm comprises the following elements:

(a)that the negligence was a necessary condition of the happening of the harm (‘factual causation’);

(b)that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (the scope of liability).

…

(3)In deciding the scope of liability, the court must consider (among other relevant things) whether or not, and why, responsibility for the harm should be imposed on the negligent party.”

The grounds of appeal

1. The appellant relied on four grounds of appeal in asserting that the trial judge erred in finding it liable.  Those grounds were that his Honour erred:

(1)in assessing the breach of the appellant’s duty of care retrospectively rather than prospectively;

(2)by finding against the evidence or weight of the evidence that the appellant ought reasonably to have been aware of a risk that Ms Hyam’s skirt would catch on the lever when she was alighting from the mini-bus at the time of her injury and that that would cause her to suffer injury;

(3)by failing to make a logical relation between the absence of any system of inspection of the appellant and the finding in ground (2);  and

(4)by finding against the evidence or weight of the evidence that the appellant had breached the duty of care that it owed to Ms Hyman.

1. The appellant distilled its attack in the four grounds of appeal as essentially a challenge to the trial judge’s finding in ground 2 that there was a foreseeable risk.  It contended that Ms Hyam suffered a “freak accident” that would not have been reasonably foreseeable.

The relevant evidence and findings below

1. In its 20 October 2003 report to the appellant of the work it had done, Canberra Motor Works stated that the seating for the mini-bus had been increased from two to eleven adult positions and that:

“This seating has been achieved by the addition of 3 x 2nd row, 3 x 3rd row and 3 x 4th row L/H seats being of a folding type.”

…

“Appropriate information on folding seat operation has been placed on the seats to advise occupants of the required operation to allow exit from the vehicle.”  (emphasis added)

…

“The modifications noted in this report meet the requirements of Transport Regulation for modified vehicles for road registration in the Australian Capital Territory.”

1. The expert witness called by Ms Hyam, Associate Professor Alexander Churches, measured the height of the open space of the mini-bus door as 132 cm.  Accordingly, a person of average height, including Ms Hyam, would always have to stoop or crouch to enter and exit the mini-bus.  In oral evidence Prof Churches said that he had measured the height of the lever as 42 cm above the floor when the second row of seats was tilted forward  to permit passengers seated in the row behind to enter or alight from the mini-bus.  The exposed catching end of the lever faced inwards, away from the bus door.  It was unguarded.  Prof Churches measured the bent portion that faced inwards as being 4 cm long and 8 mm in diameter.  However, only a 1.5 to 2 cm portion protruded towards the driver’s side of the mini-bus beyond the tubular frame of the seat row chassis.  That portion was raised upwards above the level of the frame and so was the highest exposed part of the chassis adjacent to the area whence passengers alighted or entered the mini-bus.  He said that there was little rounding or smoothing of this end portion and its outward (smooth rounded) face was about 75-100 mm inboard from the inner edge of the top step.  He wrote:

“In my opinion, it was in a position which could have caught the hem of a skirt as the passenger began to move down onto the step, 9 cm below floor level.”

1. The trial judge found that Ms Hyam was 172-173 cm tall and that her knee height was about 50 cm.  He found that the lever was about 20 cm below where the bottom edge of her skirt would have been had she been able to stand upright.  He accepted Prof Churches’ evidence, including his opinion that it would have cost less than $100 to modify the lever physically so that it would not have presented a risk of catching clothing.  Prof Churches gave this evidence in cross-examination about the lever (which he termed the “auxiliary lever”):

“I mean her skirt would have had to have dropped down sort of into the void surrounded by the pipe that supports the seat in the usual travelling position? --- Well with the auxiliary lever projecting, and it was some 20 millimetres above the tube, the seat tube, the frame, it would only need to be dragged across to have a reasonable chance of catching.

But it’s unlikely to catch if it just drags across the metal frame there, isn’t it?---No, I don’t think it would be all that difficult if you did that at the right height and you dragged the hem across the auxiliary lever then there would be a very good chance of it catching.

But isn’t the stronger frame of the seat there likely to deflect it away from the auxiliary lever?---Well as I’ve said, the lever was actually 20 millimetres above the sticking – 20 millimetres above the tube, above the seat frame.”   (emphasis added)

1. Prof Churches said that the centre of the doorway opening onto the step appeared to be about level with the projecting lever and then gave this evidence:

“So I would have thought it would been perfectly possible for her skirt to brush over the top of the seat frame and be deflected by the seat frame and caught by the auxiliary lever.

MR SHARWOOD:  And she might have been just that unlucky in these circumstances?---Well, if there is a catch point there, a potential catch point there you may go for years – months, years without anybody actually catching but sooner or later, well, there is a significant risk that sooner or later somebody will catch a garment on that and who knows what happens after that.”   (emphasis added)

1. His Honour referred to the requirements of ss 42-45 of the Act. He was conscious of the risk of hindsight and expressly adverted to guarding against being influenced by it. He found that the appellant knew that, over many years, it had contracted with Virgin Blue and Qantas to carry flight crew, giving rise to the duty to do so “with safety”. The trial judge found that female flight attendants would be wearing skirts of the kind Ms Hyam wore and that persons of normal height would need to stoop and bend as they got off the mini-bus. He found that the hem of Ms Hyam’s skirt caught on the lever and that this caused her to lose her balance and fall.

1. The trial judge found that the appellant’s management had no record of any injuries resulting from any similar prior incidents and that Mr Coggens, the driver of Ms Hyam’s mini-bus, had no recollection of any such incident.  He found that the appellant did not have any proper system for recording incidents of the kind that happened to Ms Hyam either at its administrative offices or at the individual bus driver level.  He found that the driver, Mr Coggens, did not take any steps to record the incident in which Ms Hyam had fallen onto the street either at the time or to report it to the company office.  He inferred that, if passengers had previously caught clothing or handbag straps on the lever and had brought this to the attention of the driver, it was unlikely that the driver would have recorded or even treated it as a matter of significance.  He found that, following Ms Hyam’s fall, the driver did not treat that incident as one of any importance and took no steps to investigate the cause of the fall.  He was not satisfied that, on the evidence, the appellant had any system in place for inspection of buses which would have been likely to detect the risk that was the cause of the fall.

1. The trial judge concluded:

“Because of its position just inside the bus at the top of the steps, I am satisfied that if a passenger’s clothing caught on the lever, the risk of injury to the passenger was not insignificant. It seems to me, doing my best to put out of my mind the benefit of hindsight, quite likely that a catch of that kind might cause a passenger to lose balance and fall on the steps, down onto whatever surface was below. A concrete footpath surface would be very much to be expected in the Canberra airport to hotel scenario. In these circumstances the risk of injury was not insignificant, and the injury was quite likely to be reasonably serious.”  (emphasis added)

1. His Honour referred again to Prof Churches’ suggestion of an inexpensive physical modification of the lever as one effective way of dealing with the risk.  The trial judge also posited that an alternative non-onerous precaution was for the driver to supervise the likely maximum of eight or nine passengers as they alighted.  He found that the appellant breached its duty of care because it ought to have been aware of the not insignificant risk of harm and, had it taken one of those precautions, Ms Hyam would probably have avoided the injury that she sustained.  He turned to consider the scope of the appellant’s responsibility under s 45 of the Act and concluded:

“The defendant was a commercial operator of passenger transport for profit. The plaintiff was an employee of an airline with which the defendant had a contract to provide that transport. The vehicle involved was registered as a commercial passenger vehicle. The plaintiff to my mind comes precisely within the range of persons to whom the defendant should be regarded as responsible for negligently inflicted personal injury. I am accordingly satisfied that the requirements of s 45 are met on the facts of this case.”

The appellant’s argument

1. The appellant submitted that it had purchased the mini-bus new and that it had engaged an apparently competent bodyworks modification supplier, Canberra Motor Works, to install three rows of passenger seats.  It contended that, following the work, that installer certified that the mini-bus was structurally sound in its design and construction and met the requirements prescribed by the ACT Transport Authority.  The appellant argued that it could not be required, reasonably, to second guess that certification.  It had a fleet of 23 vehicles of capacities varying between 7 and 22 seats, including one other that was identical to the mini-bus.  It contended that, by the time of Ms Hyam’s accident, it had transported about 68,000 flight crew in the mini-bus since it began operating. 

1. It argued that its controlling shareholder at the time of the trial, Ms Willets, and the driver on the night, Mr Coggens, had no knowledge and were not aware of any reports of any earlier similar incident or injury.  Ms Willets had succeeded to her father’s interests as beneficial owner after the time of the accident  (He had not been called at the trial).   She had been an office employee at the time of the accident.  The appellant argued that it operated for about 18½ hours, 7 days a week.  It contended that, by the time of Ms Hyam’s accident, both identical mini-buses had performed many thousands of passenger transfers without any passenger in injury or report of incident or complaint.

1. It was common ground that the trial judge erred in finding that, at one point in his reasons, Ms Willets had agreed that a catch point on a protruding lever, that his Honour identified (wrongly) as the one in issue, was an obvious catch point and should have been identified.  Contrary to his Honour’s finding, Ms Willets had been referring to another catch point, in the back row of seats, that was irrelevant to the one in issue.  Indeed, she had denied that the lever in issue on which Ms Hyam’s skirt had caught was an obvious catch point.

1. The appellant argued that his Honour erred by failing to accept Ms Willets’ evidence, that she “wouldn’t agree that it’s obvious”, when asked about the risk presented by the relevant lever that was exposed when the second row seats were tilted to allow passengers to disembark or embark.  It contended that Prof Churches had merely opined that the risk of something catching on the lever was small, but foreseeable, but that he had not opined on the risk of any injury resulting from any catching.  The appellant submitted that the evidence did not establish that the risk of injury was other than remote, relying on what Gummow J  had said in Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330 at 351 [61].

1. It contended that the trial judge erred by assessing whether it had breached its duty of care guided by hindsight gained from the accident rather than prospectively.  The appellant argued that his Honour’s characterisation of its contractual duty owed to Ms Hyam’s employer, as being to transport her from the airport to the hotel “with safety”, was a crucial step in his reasoning.  It also submitted that it was entitled to rely on the certification of the mini-bus after the installation of the seating.

1. The appellant accepted that Prof Churches was appropriately qualified to opine on the construction of the seats and catch points. However, it argued that his evidence was distinguishable because s 42 of the Act required assessment of risk by a reasonable person in its position, as opposed to an assessment of an expert. It characterised Prof Churches’ evidence that there was a small risk of catching, and the “catching which was severe enough to tear the skirt had the potential to cause unbalance, resulting in a fall to the roadway”, as amounting to no more than an assertion of mere physical or mechanical possibility. The appellant criticised Prof Churches’ opinion that the risk of a skirt catching on the lever was foreseeable as being merely an ipse dixit in the sense referred to by Heydon JA in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at 745 [87].

1. Last, the appellant argued that the trial judge had not explained why an inspection of the mini-bus would have exposed the risk of disembarking passengers’ clothing catching on the lever when the second row of seats was tilted forward.

Consideration

1. Whether a reasonable person would have taken precautions against a risk must be determined prospectively based on the facts in the evidence:  Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 at 440 [40] per French CJ, Gummow, Hayne, Heydon and Crennan JJ. We reject ground 1. We do not accept the appellant’s criticism of the trial judge as having arrived at his conclusion based on a retrospective assessment. His Honour said that he had not done so. Having reviewed the evidence of Prof Churches and the objective facts as they would have appeared to the appellant at the time it first received the modified mini-bus and subsequently before Ms Hyam’s accident, we are satisfied that the appellant ought to have perceived the not insubstantial risk of its passengers suffering physical injury if their clothing became caught on the lever when it took delivery of the modified minibus or within a short time thereafter when viewing it in operation.

1. We reject grounds 2 and 4.  In our opinion, the trial judge’s conclusion that the appellant breached its duty of care to Ms Hyam and that the breach resulted in injury to her has not been shown to be incorrect.  Indeed, we agree with it.

1. The appellant was the operator of a commercial fleet of buses and mini-buses used to transport, among others, aircraft crew.  It was, or ought to have been, aware that female flight attendants that it would carry in the ordinary course could, and did, wear skirts and that they and other persons carried bags that had straps or wore clothes with other features that might catch on protrusions.  It was, or ought to have been, aware that persons of normal height would have to crouch down so as to exit or enter the 132 cm aperture comprising the doorway through which passengers passed.  That being so, it was, or ought to have been, aware that alighting passengers would bend or twist in a variety of ways when getting out of the mini-bus and that, in doing so, some of them would pass their bodies and or their clothing or other items that they were carrying such as handbags, laptop cases or the like, over the protruding lever as they were exiting the vehicle.

1. We reject the appellant’s argument that it was reasonable for it to have relied simply and only upon the self-certification of the installer responsible for performing the bodywork to fix the new seating in place in 2003.  Critically, s 43(1)(b) of the Act required the risk of harm that was foreseeable to be “not insignificant”.  There must have been a substantial number of passengers whom the appellant expected, or ought to have expected, to pass while wearing clothing or carrying accoutrements over the protruding lever as they bent or contorted so as to fit their taller bodies through the 132 cm high aperture of the mini-bus door.

1. Although the lever itself was 4 cm long, only about 1.5 to 2 cm extended over the bottom of the seat frame towards the driver’s side. This small section was the part of the lever that protruded in a slightly raised way when the second row of seats was pushed forward as shown in the photograph at [2] above. Looking at the configuration of the second row of seats pushed forward, the protruding lever and the space on a passenger’s left as he or she was about to manoeuvre to leave the mini-bus, we are satisfied that a reasonable transport fleet operator in the appellant’s position would have appreciated that there was a not insignificant risk that an alighting passenger could be wearing clothing, such as a skirt, or carrying a hand bag or other hand baggage with a strap or feature that could catch on the lever. We are also satisfied that such a person would also have foreseen that there was a not insignificant risk that the catching could cause the person to lose balance as he or she was bent over as he or she alighted from the mini-bus if suddenly that person experienced some restraint on his or her forward movement from the caught clothing or bag. That risk presented an obvious further risk of the person losing his or her balance or footing and falling onto the street or pavement and sustaining personal injury.

1. The appellant was entitled to place some reliance on the self-certification of the accredited body works installer of the seating as having been given in a bona fide way.  However, that did not mean that the appellant was relieved of an obligation to check how the seating operated in the mini-bus when it took delivery from the installer so that it was able to assess whether the job appeared to have been done, and whether it needed to give any instructions to passengers it was to carry about entering or alighting.

1. At the time it took delivery, the appellant was proposing to operate the mini-bus in its business of transporting persons for reward at all hours and in all conditions.  The physical structure of the unaltered and altered mini-bus included a door with a step to the street.  The door was only 132 cm high so that persons of ordinary height would necessarily have to bend or contort their bodies in order to enter or alight from the seating area.  The second row of seating had to be moveable in order to afford passengers the means of ingress and egress.

1. The operator of a transport business, such as the appellant’s, has a duty to take reasonable care that each of its vehicles is in such a condition that, in the ordinary manner of its operation, passengers will be able to enter and leave the vehicle with reasonable safety from the risk of personal injury.  It is neither appropriate nor possible to specify the exact metes and bounds of such a duty, for much will depend on the particular circumstances of any given case.  However, here a reasonable business operator in the appellant’s position had a duty to consider for itself the general nature of the modifications of the mini-bus and how passengers of the kind whom it proposed, or was likely, to carry would be likely to enter, leave and sit inside the vehicle when it would be in use.

1. The standard of care for the performance of that duty must have included the requirement for the appellant to assess whether the work performed by the apparently reputable and competent installer appeared to present any potential that required the appellant to take precautions that a reasonable person in its position would have taken against a foreseeable, not insignificant risk of harm, within the meaning of s 43 of the Act.

1. Here, the cramped conditions for a person in a skirt or carrying or wearing an item of clothing that could catch on the minibus’ interior as the person was entering or alighting through the relatively small door aperture were obvious.  As the photograph at [2] shows, the lever was unguarded, pointing slightly upwards and offered, if the hem of a skirt passed over it, as Prof Churches said:  “a very good chance of it [the hem] catching”.  Because the wearer of the skirt would be moving in that scenario, her freedom of movement would be interfered with just as she was moving down the step into the street while bent over or contorted so as to fit through the doorway.

1. We reject ground 3.  As his Honour found, the appellant had no system in place at all for reporting similar misadventures by passengers.  Indeed, Mr Coggens did not think that Ms Hyam’s accident was reportable even though she had fallen out of the mini-bus and landed on her knee.  Although there is no evidence of an actual instance, the likelihood is that similar catching of garments or carried objects had occurred in the period between the appellant’s first use of the two mini-buses and Ms Hyam’s accident.  However, because the appellant had no system for requiring reports and no previous incident resulted in an injury, even if someone had fallen or stumbled, it would not have been reported to the appellant.

1. As Prof Churches opined, the lever was in a position which could have caught the hem of a skirt as the passenger began to move down onto the step 9 cm below the mini-bus’ floor level.  He measured the lever, in that position, as being 42 cm above the mini-bus floor.  In oral evidence, he said that it would have been perfectly possible for a passenger’s skirt to brush over the top of the upturned seat fame and be deflected by it so as to be caught by the lever.  He said that if the hem was dragged across the lever “there would be a very good chance of it catching”, the lever being 20 mm above the level of the steel tube forming the rest of the seat frame at that point.  He added that there was “a significant risk that sooner or later somebody will catch a garment on that and who knows what happens after that”.  We reject the appellant’s argument that this was an unreasoned ipse dixit.  Prof Churches explained his reasoning so far as necessary, and indeed, we are of the opinion that his observation was common sense. 

1. Even if the inference that we have drawn of the likelihood of occurrence of prior unreported catching incidents were wrong, the absence of earlier incidents with the lever, while it would be relevant, is not determinative of what a reasonable person in the appellant’s position ought reasonably to have done about the lever as it presented in the ordinary usage of the mini-bus:  Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 at 391 [82] per Heydon, Crennan and Bell JJ. As their Honours pointed out (243 CLR at 392 [86]):

“… in Neill v NSW Fresh Food & Ice Pty Ltd Taylor and Owen JJ said [(1963) 108 CLR 362 at 368]: ‘in many cases no more than common knowledge, or perhaps common sense, is necessary to enable one to perceive the existence of a real risk of injury and to permit one to say what reasonable and appropriate precautions might appropriately be taken to avoid it.’”

1. The lever was obviously protruding towards the driver’s side of the mini-bus and slightly above the line of the exposed tubular seat frame when the second row of seats was pushed forward.  Looking at this and the position of the frame in relation to the aperture of the door frame, the proximity of the step and the need for adult persons to bend down or contort in order to get through the 132 cm door frame, we are satisfied that a reasonable person in the appellant’s position would have appreciated that there was a not insignificant risk of clothing or hand held items catching, and that that could lead to a not insignificant risk of personal injury from a fall.  The trial judge suggested two inexpensive, non-onerous and obvious precautions, either of which would have been highly likely to have avoided that risk of injury.

1. This was a situation to which the appellant and its employees were exposed on a daily basis as an ordinary and usual feature of the two mini-buses’ operations.  Once the second row of seats was moved forward, as it frequently would have been, probably several times a day, the appellant’s drivers would have been likely to have seen, and a reasonable transport operator would have seen, the closeness or actual contact of some passengers’ clothing or effects with the lever.

1. There was an obvious risk of clothing or hand held items with straps catching and, if that occurred, of the person losing balance on the step so that he or she might fall and suffer injury.  The appellant’s negligence in failing to take the precautions to avoid the risk we have described was a necessary condition of the injury suffered by Ms Hyam when her skirt caught on the exposed lever in the dark.  It is appropriate that the scope of liability of the appellant should extend to the harm caused to Ms Hyam because its business was the carriage of persons for reward and the risk was obvious and easy to eliminate (s 45).

1. Accordingly, none of the grounds of appeal succeeds.

Conclusion

1. The appeal should be dismissed with costs.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justices Refshauge and Rares.

Associate:

Date: 26 June 2014

Penfold J:

Introduction

1. I have read in draft the judgment of Refshauge and Rares JJ, and gratefully rely on their outline of the circumstances from which this appeal and the original claim arose, including in particular the photograph set out at [2] above. Unfortunately, however, I cannot agree with all their Honours’ conclusions.

1. The Master found that the appellant had been negligent in failing to take precautions against the risk of harm that eventuated in this case and resulted in the respondent having a fall that caused significant injuries with long-term consequences. The conclusion that the appellant had been negligent depended upon findings (among others) that:

(a)the appellant ought to have put in place a system of inspection of its vehicles for safety risks;

(b)if the appellant had had such a system, it would have known about the risk;

(c)therefore, the appellant ought to have known about the risk; and

(d)therefore, the risk was foreseeable.

1. The particular risk that eventuated was that a passenger, the respondent, caught her clothing on a steel rod as she got out of the back of the appellant’s minibus by a sliding door.  The steel rod comprised part of the mechanism by which the seat closest to that sliding door could be released from its anchor on the minibus floor and pushed forward so as to allow passengers access to the doorway.  The steel rod has often been referred to in this matter as a lever but “lever” properly describes something that moves on a fulcrum of some sort.  This rod was fixed, to that part of the seat mechanism that did move, but it did not move except as part of the larger mechanism, and is more properly referred to as a rod.

Appeal ground 4.1: retrospective assessment of breach of duty of care

1. The first appeal ground is that:

4.1   His Honour fell into error in assessing any alleged breach of the defendant’s duty of care retrospectively rather than prospectively.

1. I agree with Refshauge and Rares JJ that this appeal ground is not made out; the Master specifically adverted to the need to look at the asserted breach of duty prospectively rather than retrospectively, and said nothing that of itself could suggest that his Honour had mistaken the required approach. If the Master did in fact reach incorrect conclusions in this matter, a retrospective rather than prospective assessment of whether a duty of care existed and had been breached may have been the source of those errors, but such an assessment cannot be directly demonstrated by reference to his Honour’s judgment.

Appeal grounds 4.2 and 4.3: whether the risk was foreseeable

1. Appeal grounds 4.2 and 4.3 were as follows:

4.2   His Honour found against the evidence and the weight of the evidence that the defendant ought reasonably have been aware of the risk that the plaintiff’s skirt would catch upon the release mechanism of a seat in the rear of the minibus from which she was alighting at the time of her injury and she would thereby suffer injury.

4.3   His Honour failed to relate logically or at all the absence of a system of inspection of the defendant’s minibus fleet with the finding impugned in ground of appeal 4.2 above.

Legislation

1. The legislative provisions relevant to this appeal are ss 42 to 45 of the Civil Law (Wrongs) Act 2002 (ACT):

42Standard of care

For deciding whether a person (the defendant) was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant’s position who was in possession of all the information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose.

43Precautions against risk—general principles

(1)A person is not negligent in failing to take precautions against a risk of harm unless—

(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and

(b)the risk was not insignificant; and

(c)in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2)In deciding whether a reasonable person would have taken precautions against a risk of harm, the court must consider the following (among other relevant things):

(a)the probability that the harm would happen if precautions were not taken;

(b)the likely seriousness of the harm;

(c)the burden of taking precautions to avoid the risk of harm;

(d)the social utility of the activity creating the risk of harm.

44Precautions against risk—other principles

In a proceeding in relation to liability for negligence—

(a)the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible; and

(b)the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which it was done; and

(c)the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in relation to the risk and is not of itself an admission of liability in relation to the risk.

Part 4.3Causation

45General principles

(1)A decision that negligence caused particular harm comprises the following elements:

(a)that the negligence was a necessary condition of the happening of the harm (‘factual causation’);

(b)that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (the scope of liability).

(2)However, if a person (the plaintiff) has been negligently exposed to a similar risk of harm by a number of different people (the defendants) and it is not possible to assign responsibility for causing the harm to any 1 or more of them—

(a)the court may continue to apply the established common law principle under which responsibility may be assigned to the defendants for causing the harm; but

(b)the court must consider the position of each defendant individually and state the reasons for bringing the defendant within the scope of liability.

(3)In deciding the scope of liability, the court must consider (among other relevant things) whether or not, and why, responsibility for the harm should be imposed on the negligent party.

1. As already noted, the case against the appellant required among other things a finding that the risk of harm that eventuated in this case was foreseeable. 

1. The legislation sets out three pre-requisites for a finding of negligence constituted by failing to take precautions against a risk of harm, one of which being that the risk was foreseeable (s 43(1)(a)), and all of which needing to be satisfied before such a finding can be made (s 43(1)).   It lists matters to be taken into account in determining whether one of those pre-requisites (that a reasonable person would have taken precautions against a risk of harm: s 43(1)(c)) has been established (s 43(2)).

1. The matters listed in s 43(2), however, are not relevant in determining whether s 43(1)(a) or 43(1)(b) has been satisfied.  In particular, the foreseeability of the risk under s 43(1)(a) does not depend on the ease with which precautions could have been taken to deal with that risk (s 43(2)(c)) or indeed on the probability or likely seriousness of the harm flowing if the risk eventuated, or on the social utility of the relevant activity (ss 43(2)(a), (b) or (d)).

The appellant’s position

1. The appellant’s position at trial was as follows:

(a)it had bought the minibus new, and had engaged Canberra Motor Works to modify it by installing nine seats, in three rows of three seats, behind the front row of seats provided for the driver and one passenger;

(b)Canberra Motor Works had certified that the work had been done in accordance with the relevant legislation permitting road registration for modified vehicles (relevant material is quoted in the joint judgment at [10] above), and the minibus had been carefully inspected each year in connection with renewal of its registration;

(c)between the time when the minibus had been modified and the time of the respondent’s accident, the appellant had transported around 68,000 flight crew passengers without any incident having been reported or recorded, and at the time of the accident, the company had been operating for nine years without any injury having been recorded;

(d)it had not recognised, and did not accept, that the rod on which the respondent caught her skirt was an obvious catch-point, and that as such it should have been modified to eliminate or reduce the risk to passengers.

1. None of the evidence on which the first three propositions were based was challenged at trial.  The fourth proposition was, in effect, a denial of the s 43(1)(a) pre-requisite for a finding of negligence, being that the risk of harm that had eventuated was foreseeable.  If that pre-requisite is not satisfied, then it does not matter whether the harm caused turned out to be serious or that the burden of taking precautions was said to be small.

1. Appeal ground 4.2 challenges his Honour’s finding that the relevant risk of harm was foreseeable on the grounds that the finding was against the evidence or the weight of evidence.

1. Appeal ground 4.3 is, in effect, a particular of the error alleged in ground 4.2.

The finding of foreseeability

1. The Master’s finding was expressed at [91]:

It follows that whilst it has not been established that the defendant had actual knowledge of the risk, I am satisfied that the defendant should have known of it ....

1. This finding appears to have relied on his Honour’s interim findings at [80] to [88]:

By reason of the continuing relationship between the defendant and the employer, the defendant knew and must be taken to have known that persons in the position of the plaintiff would be wearing flight attendants’ uniforms, including a skirt of the kind which the plaintiff was wearing. The defendant must also be taken to have known that persons of normal height would need to stoop and bend as they got off the mini-bus.

...

I am satisfied on the evidence that the rear hem of the plaintiff’s skirt caught on the lever on that seat which I have previously described, and that this was what caused her to lose her balance and to fall.

I also accept the evidence that the defendant’s management had no record of any injuries arising from such an incident before this, and that the driver of the mini-bus has no recollection of any previous such incidents.

Having said that, it does not seem to me that the defendant had any proper system for recording such incidents, either at its administrative offices, or at the individual bus driver level. There is no suggestion that the driver on this occasion took any steps to record the incident at the time, or to report it to the company office. If passengers had previously caught clothing or handbag straps on the lever and had brought this to the attention of the driver, it seems to me unlikely that the driver would have recorded it or even treated it as a matter of significance. I am satisfied that following the plaintiff’s fall the driver did not treat the matter as one of any importance and did not take any steps to investigate the cause of the plaintiff’s fall.

I am not satisfied on the evidence that the defendant had any system in place for inspection of buses which would have been likely to detect the risk which was the cause of the plaintiff’s fall.

The defendant seems to have relied on the annual motor registry inspection to pick up any problems with its vehicles, and on the individual drivers to report or deal with any safety issues which might arise.

It seems to me a reasonable thing to expect that a company operating a fleet of more than 20 mini-buses and other vehicles, conveying passengers including airline flight crew for profit, would put in place a system of inspection for safety risks, rather than, as effectively what happened here, waiting for the risk to eventuate before doing something about it.

I need to consider, in the light of the expert evidence in particular, whether such an inspection would have picked up the present risk, that clothing might catch on the lever on which the plaintiff’s skirt caught when the seat was tilted in the forward position. It seems to me reasonable to take into account that the seat would have been put into that position on every occasion when there were passengers other than in the front passenger seat and the row immediately behind the driver. That is, every time the mini-bus was full or almost full, the seat would have to have been tilted forward for a number of the passengers to get out. The positioning of the lever where it was when the plaintiff’s skirt caught on it was accordingly far from a rarity, and something which probably happened very frequently.

1. His Honour had previously referred to the evidence of Associate Professor Churches, called as an expert by the respondent.  In cross-examination, Associate Professor Churches said:

I would have thought it would [sic] been perfectly possible for her skirt to brush over the top of the seat frame and be deflected by the seat frame and caught by the auxiliary lever.

Mr Sharwood: And she might have been just that unlucky in these circumstances? – – – Well, if there is a catch point there, a potential catch point there you may go for years – months, years without anybody actually catching but sooner or later, well, there is a significant risk that sooner or later somebody will catch a garment on that and who knows what happens after that.

1. His Honour summarised the relevant evidence at [21] to [23]:

[Associate Professor Churches] thought that the risk of catching clothing on the lever was low but foreseeable. It was, he said, good practice to take care to avoid projections or catch points of any kind, particularly in passageways and exit areas. He noted that the end of the lever was not rounded and was higher than the rest of the seat frame when the seat was tilted, in a position where passengers needed to move past it to exit the vehicle. A skirt or similar garment, in his opinion, had the potential to catch on the lever. It would have been a simple and inexpensive design and manufacturing modification to lengthen the lever by some 3 to 4 cm, and bend the extension down so that its sharp end lay well within the envelope of the seat frame, rather than projecting above it as it did. There was a foreseeable risk of catching on a garment, causing unbalance and a fall to the roadway.

The oral evidence of Professor Churches was that the modification he proposed would have cost less than $100.00 for each vehicle to which it applied.

Professor Churches thought that it was perfectly possible for a passenger in the position of the plaintiff to have her skirt brush over the top of the frame of the seat in front as she passed it, and to catch the edge of the skirt on the lever. It was put to her by counsel for the defendant that she might have just been unlucky in the circumstances. He agreed that there was a potential catch point in position and that months or years might go by without anyone catching it, but sooner or later there was a significant risk that someone would catch a garment on it.

1. His Honour has concluded that the risk of harm was foreseeable in the sense that the appellant “ought to have known” about it.  He has reached that conclusion from the following interim findings:

(a)That the appellant knew or ought to have known that many of the people transported in the minibus would be wearing flight attendants’ uniforms, including skirts of the relevant kind, and that persons of normal height would need to stoop and bend as they got off the mini-bus.

(b)That the appellant had relied on motor registry inspections to identify any safety issues affecting its vehicles.

(c)That the appellant did not operate any proper system for recording incidents in which passengers had fallen, or suffered other problems, as a result of the combination of the passengers’ clothing and the need for passengers to stoop as they got off the bus, from which his Honour inferred that any previous incidents either would not have been reported to management by drivers or would not have been recorded by management if they had been reported.  

(d)That the appellant did not operate any proper system for inspection of its vehicles that would have been likely to detect the risk posed by the protruding rod.

(e)That it was unreasonable for a company in the position of the appellants (in terms of the nature of its business and the size and value of its operations) not to implement a system of inspections for safety risks.

(f)That in determining whether a system of inspections for safety risks would have detected the particular risk that eventuated, it was relevant that probably the seat concerned would have been tipped forward very frequently (every time there were passengers in the second or third rows of seats).

1. It can be inferred that his Honour also relied on the statements by Associate Professor Churches that were summarised by his Honour as follows:

the risk of catching clothing on the lever was low but foreseeable. ... the end of the lever was not rounded and was higher than the rest of the seat frame when the seat was tilted, in a position where passengers needed to move past it to exit the vehicle. A skirt or similar garment, in his opinion, had the potential to catch on the lever.  ... There was a foreseeable risk of catching on a garment, causing unbalance and a fall to the roadway.

... it was perfectly possible for a passenger in the position of the plaintiff to have her skirt brush over the top of the frame of the seat in front as she passed it, and to catch the edge of the skirt on the lever. ... He agreed that there was a potential catch point in position and that months or years might go by without anyone catching it, but sooner or later there was a significant risk that someone would catch a garment on it.

Mistake as to Ms Willets’ evidence

1. The appellant pointed to a mistake made by his Honour as to the evidence given by the owner of the appellant company. The error was that his Honour stated at [36] that Ms Willets had agreed in evidence that the “lever” on which the respondent was found to have caught her skirt was “an obvious catch point and should have been identified”. This was not correct; what Ms Willets had accepted as an obvious catch point was another lever or handle that his Honour found (at [24]) was not the item on which the respondent had caught her skirt. The respondent conceded that his Honour was in error in his report of Ms Willets’ evidence, but said that his Honour did not rely on that misapprehended evidence in reaching his findings.

1. It is likely that his Honour took Ms Willet’s concession into account in finding that the appellant should have operated a system of inspections for safety risks, but to the extent that his Honour was influenced in that way by that concession, it does not seem to matter whether the concession had related to the offending catch point or another hitherto unrecognised catch point.

Respondent’s evidence

1. At trial, the respondent was shown a copy of the photograph set out in the joint judgment. In cross-examination, she gave the following evidence:

All right and if you turn to figure 7, is – I understand your evidence, you say that you caught your skirt where that light coloured – sorry mine’s black and white. There’s a light coloured - - -

HIS HONOUR: So is mine, yes. But there are two lighter arrows, one going up and one going down, and there are two dark arrows in that photo. So it’s the upper one of the two light arrows that you’re asking about.

MR SHARWOOD: Yes I am, yes.

HIS HONOUR: The arrow pointing down.

MR SHARWOOD: Can you see that?---Yes.

The one pointing down?---Yes.

Is that where you say your skirt caught?---I don’t recall it looking like that.

Is that the location – and we’ll just – we’ll come to what it looked like in a moment?---Okay.

Is that the location or is – or are you able to point to some other place in that photograph where you think - - - ?---That’s what I recall, that location.

It was that location?---Yes.

And I’d suggest that in fact it did look like that at the time – sorry. At the time that you had your accident, the piece of metal that – identified with the arrow pointing down looks like it looks in that paragraph?---No.

HIS HONOUR: You say it didn’t look like that?---It didn’t look like that it was protruding up. It was sticking up more.

1. In the absence of any suggestion that the relevant mechanism had been modified after the accident, it is hard to know exactly what to make of this evidence, but it seems at least to suggest that not only Ms Willets but also the respondent did not see the relevant rod as an obvious potential catch point.

Appeal ground 4.3 – absence of safety inspection system

1. It is convenient to consider appeal ground 4.3 first; that appeal ground was:

His Honour failed to relate logically or at all the absence of a system of inspection of the defendant’s minibus fleet with the finding impugned in ground of appeal 4.2 above

1. As noted at [44] above, his Honour’s conclusion that the appellant was negligent depended on findings that the appellant should have put in place a system of safety inspections, and that such a system would have revealed the relevant risk.

1. His Honour made several interim findings about the absence of a system of safety inspections, as summarised at [61(d), (e) and (f)] above. The effect of these was that it was unreasonable for the appellant not to operate a system for inspecting its vehicles for safety risks including the kind that had eventuated in this case, and that the frequency with which the seat would have been in the position in which that risk eventuated was relevant to determining whether such a system would have detected that particular risk. His Honour did not explicitly find that the frequency with which the seat was in that position meant that such a system would have detected the particular risk. 

1. I accept the appellant’s argument that there is no logical connection between the frequency with which the seat was in a particular position and the utility of a safety inspection system. One would assume that if a genuine safety inspection system were operating, it would not involve random assessments of vehicles on the basis that each vehicle would be inspected with the seats in whatever position they were found, but on the basis that each vehicle would be inspected in its various operating positions.

1. His Honour might have had in mind that the frequency with which the seat would have been in the dangerous position suggested that there might have been other incidents that would have increased the chances of the actual risk being recognised, but whether or not this is correct, it does not seem to be relevant to a system of inspection (as distinct from a system of recording report incidents).

1. However, the appellant’s real complaint seemed to be:

(a)that his Honour’s conclusion required a finding that such an inspection system would have detected the relevant risk;

(b)that no such finding was made explicit; and

(c)that there was no basis for such a finding.

1. It is unarguable that his Honour made no explicit finding that an inspection scheme of the kind suggested would have detected the relevant risk.  The evidence before his Honour in relation to whether such an inspection system would have detected the relevant risk was:

(a)the evidence of Ms Willets about her assessment of the “lever” concerned;

(b)the evidence of the respondent that what she believed she had caught her skirt on had stuck up more than the rod shown in the photograph of the claimed catch point;

(c)the evidence of Associate Professor Churches to the effect:

(i)that the risk was low;

(ii)that a skirt or similar garment, in his opinion, had the potential to catch on the “lever”;

(iii)that it would have been “perfectly possible for her skirt to brush over the top of the seat frame and be deflected by the seat frame and caught by the auxiliary lever”; and

(iv)that “if there is ... a potential catch point there you may go for years ... without anybody actually catching but sooner or later well there is a significant risk that sooner or later somebody will catch a garment on that and who knows what happens after that”.

1. Presumably his Honour was not suggesting that the inspection system that should have been operating was an inspection system aimed at detecting catch points for skirts, or even catch points for passengers’ clothing, since such a proposition would imply (contrary to his Honour’s findings) that the appellant had foreseen that the existence of catch points for passengers’ clothing would create a risk of harm. His Honour did not explain the nature of the inspection system that in his view should have been operated by the appellant, or why an inspection system that by definition was not aimed specifically at detecting catch points for clothing would have detected a safety risk:

(a)that would (on Ms Willets’ evidence) not have been noticed by the owner of the appellant company;

(b)that would (on the respondent’s evidence) not have been identified in a photograph of the relevant mechanism;

(c)that had not in fact eventuated over some time and a large number of trips involving a large number of passengers, many of whom were presumably wearing similar skirts; and

(d)that, on the evidence of the respondent’s expert, was a low risk that might not have eventuated “for years” and the consequences of which, if it did eventuate, were unpredictable.

1. Nothing in this evidence, as far as I can see, supports a conclusion that a system that involved looking at each vehicle, at unspecified intervals or perhaps only when it was first acquired, for any aspect of the vehicle’s design, construction or fit-out that could possibly give rise to a risk to passengers would have brought to light the danger posed by the rod concerned.  Nor did his Honour articulate such a conclusion. 

1. The appellant has in my view established the error asserted in appeal ground 4.3, being that his Honour did not explain the connection between the absence of a safety inspection system and the finding that the appellant ought to have been aware of the risk of a passenger catching a skirt on the rod and suffering injury as a result. Whether that is fatal to his Honour’s finding that the risk was foreseeable is a separate question.

Appeal ground 4.2 – assessment of risk of harm

1. If the failure to operate a system of safety inspections of the appellant’s vehicles is excluded, his Honour’s finding that the risk of harm was foreseeable (in that the appellant should have been aware of it) is supported only by his explicit findings that:

(a)the appellant knew that some of the airline crew and passengers that it transported would be wearing flight attendants’ uniforms including skirts of the relevant kind;

(b)the appellant knew that persons of normal height (which included the respondent) would need to stoop and bend as they got off the minibus; and

(c)the appellant had no record of any injuries being caused, before the respondent’s fall, by an incident of the sort that befell the respondent.

1. To those findings should presumably be added His Honour’s description of the  mechanism by which the front row left-hand passenger-side seat tilted forward to allow passengers from the rear seats to reach the sliding door, including the release lever for the hook which normally held the seat on the floor. His Honour said at [19]:

The release mechanism was held in place around the tube which formed the rear base of the seat by a bent metal rod, the end of which was horizontal, with its end about 4 cm in from the tubular structure, pointing away from the sliding door and towards the driver’s side of the vehicle. It is the end ... of that rod on which the plaintiff, on her case, probably caught the hem of her skirt.

1. The photograph set out in the joint judgment at [2] above shows the horizontal end of the bent metal rod referred to by the Master, which is identified by the top left of the several arrows pointing to various aspects of the photograph. As the Master noted, the end of the rod points away from the sliding door. It protrudes to a distance of about 20 mm into the space marked out by what his Honour described as the tube forming the rear base of the seat; because it curves around the top of that tube, the relevant part of the rod sits slightly above the physical barrier provided by the tube, about 10 mm above at the most. However, as far as I can see, the bottom of the rod sits on the same plane as the top of that tube; that is, it points out into the space marked out by the tube but it does not point upwards from the level of the tube where the rod curves around the tube. It is apparent that the tube would have kept away from the metal rod not only a passenger’s legs but also any longer clothing that was not liable to ride up to any significant degree (for instance full-length trousers or tight skirts), and shorter but tight clothing (eg figure-hugging shorts). The tube would not, however, have provided a barrier to a shorter skirt that hung above or around the wearer’s knee and did not cling to the wearer’s body.

1. Once the finding that the appellant should have operated a system for regular safety inspections of all its vehicles, and the implied finding that such a system would have detected the relevant risk of harm, are put aside, it is hard to find a basis in the evidence for his Honour’s finding that the appellant ought to have known about the risk of harm.  There was no evidence or argument that mid-length skirts, or all skirts, are generally a safety risk (and the fact that they are part of a uniform designed to be worn by people working in a relatively confined environment might suggest the contrary).  There was no evidence that stooping to get out of a vehicle is generally a safety risk.  There was no evidence that travelling in a vehicle that required one to stoop when getting out of the vehicle, either at all or when wearing a flight attendant’s skirt, carried any “not insignificant” risk of harm. 

1. The appellant argued that his Honour had assessed the foreseeability of clothing catching on the “lever” rather than the foreseeability of harm being caused by clothing catching on the “lever”. Counsel referred to Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330, a case involving action, by a person who had been injured by jumping off a bridge into shallow waters, against the builder of the bridge. Gummow J said at [60] and [61]:

In the Court of Appeal, the risk faced by Mr Dederer was characterised by the majority as being "serious spinal injury flowing from the act of diving off the bridge". That risk, it was said, was one created by the RTA through the erection of the bridge by its predecessor. However, such a characterisation of the risk obscured the true source of potential injury. This arose not from the state of the bridge itself, but rather from the risk of impact upon jumping into the potentially shallow water and shifting sands of the estuary. This mischaracterisation of the risk led to two consequent errors. First, the majority were distracted from a proper evaluation of the probability of that risk occurring. Secondly, they erroneously attributed to the RTA a greater control over the risk than it possessed.

The first error can be seen in Ipp JA's characterisation of the "startling frequency" of "large numbers" of people jumping and diving from the bridge; a practice that was "continuing unabated" notwithstanding the pictograms. Such a characterisation incorrectly focused attention on the frequency of an antecedent course of conduct, namely jumping and diving, and not on the probability of the risk of injury occurring as a result of that conduct, namely impact in shallow water. As Lord Porter observed in Bolton v Stone, "in order that the act may be negligent there must not only be a reasonable possibility of its happening but also of injury being caused" (emphasis added). In the present case, the frequency of jumping and diving was only startling if one ignored the fact that no-one was injured until Mr Dederer's unfortunate accident. Far from being a risk with a high probability of occurrence, the probability was in truth very low, and this fact was masked by the Court of Appeal's characterisation of the relevant risk. (citations omitted)

1. Gummow J’s comment about the risk under consideration having a low probability of occurrence was made not in relation to whether the risk was foreseeable but in relation to whether the defendant in Dederer had exercised reasonable care having regard to the nature of what was accepted to be a foreseeable risk.  However, his Honour’s reminder that the risk to be considered is the risk of injury being caused by the defendant’s conduct rather than the risk of an event that, in turn, carries a risk of injury is consistent with the statutory position applicable in this case, specifically that under s 43(1)(a), negligence requires a failure to take precautions against “a risk of harm” (emphasis added) that was foreseeable and not insignificant.

1. In the absence of any system for reporting minor incidents of this sort within the appellant company, there was no positive evidence before his Honour about the probability of occurrence of the risk of passengers catching clothing on the rod that his Honour found had caused the respondent’s fall.

1. There was however evidence that a large number of passengers had been transported in the year or so before the respondent’s fall. There was evidence that the appellant was unaware of any previous claim that injury had been caused as a result of passengers catching clothing on the rod, a claim of the sort that would presumably have reached the appellant irrespective of the absence of any internal reporting arrangements. The risk of clothing being caught on the rod was described by the expert witness called by the respondent as low, with the risk being described as one that might not eventuate “for years” and that, when it did “sooner or later” eventuate, would have consequences that could not be predicted. That is, Associate Professor Churches did not give evidence that if the risk of catching clothing did eventuate, it would necessarily or even probably cause harm; he gave evidence that whether it would cause harm could not have been predicted.

1. The appellant submitted that Associate Professor Churches’ evidence about the risk was “a bare ipse dixit” of the kind mentioned by Heydon J in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at 745 [87]:

There is no doubt about Professor Morton's authority, experience, qualifications and skill. It is also the case that Professor Morton's report is quite lengthy and detailed. But, given that the court is not obliged to take the opinion of an expert as conclusive even though no other expert is called to contradict it, can it be said that Professor Morton's report goes beyond a series of oracular pronouncements? Does it usurp the function of the trier of fact? More vitally, did it furnish the trial judge with the necessary scientific criteria for testing the accuracy of its conclusions? Did it enable him to form his own independent judgment by applying the criteria furnished to the facts proved? Was it intelligible, convincing and tested? Did it go beyond a bare ipse dixit? Did it contain within itself materials which could have convinced the trial judge of its fundamental soundness?

1. If Associate Professor Churches’ evidence (as quoted at [59] above) went beyond “a bare ipse dixit” (Latin for “he himself has said it”, defined in Butterworths Australian Legal Dictionary, 1997, as “a dogmatic assertion made on the unsupported authority of the speaker”), it did not go far beyond.  The witness’s addition of the word “significant” is the only basis on which the risk identified could be said to be “not insignificant”. Once a potential catch point has been identified, then the possibility that one day something will catch on it does not seem to require expert evidence, and is presumably “fundamentally sound” in the way in which any tautology is fundamentally sound.  However, the evidence that months or even years might pass before someone catches something on that catch point (especially in the context of a commercial vehicle which is unlikely to have a particularly long lifespan) does not of itself appear to justify Professor Churches’ claim of a “significant risk” that at some point something will be caught on that catch point.  To the extent that the evidence did purport to go beyond the possibility that something would catch on a catch point and to say, in effect, that there was a significant risk that within the life of the vehicle concerned, something would catch on the identified catch point, it did not provide any basis for judging its fundamental soundness. 

1. The appellant company was in the business of transporting passengers around Canberra in a fleet of vehicles that, as far as the evidence addressed the matter, seem to have satisfied the legal requirements for regular registration renewals for commercial passenger vehicles. Before the respondent’s fall, no injury arising from this activity had been recorded by the company, despite the large numbers of flight crew transported to and from the airport and veterans transported to and from medical appointments, as well as passengers dressed for balls and other functions.  There was nothing in the evidence to suggest that this business was other than a low-risk activity, at least in relation to risks arising from the internal fit-out of the vehicles (especially to the extent that the fit-out was subject to vehicle registration requirements). 

1. The conclusion that the appellant ought to have known that the rod on which the respondent was found to have caught her skirt posed a risk of harm to passengers alighting from the minibus while wearing skirts of the relevant kind, or in general, was not supported by the evidence available to his Honour, at least when considered without the benefit of hindsight.

1. Accordingly, the appellant has established the error by the Master that is asserted in appeal ground 4.2.

Appeal ground 4.4: whether duty of care owed

1. Appeal ground 4.4 was:

His Honour found against the evidence and the weight of the evidence that the defendant breached the duty of care that it owed to the plaintiff.

1. His Honour’s finding as to the existence of a duty of care was as follows:

The defendant was a commercial operator of passenger transport for profit. The plaintiff was an employee of an airline with which the defendant had a contract to provide that transport. The vehicle involved was registered as a commercial passenger vehicle. The plaintiff to my mind comes precisely within the range of persons to whom the defendant should be regarded as responsible for negligently inflicted personal injury. I am accordingly satisfied that the requirements of s 45 are met on the facts of this case.

1. The appellant made no specific submissions about this appeal ground. The Master’s explanation of the existence of a duty of care was brief, but I cannot see any error in the conclusion that a duty of care (in relation to foreseeable risk) was owed to the respondent in the circumstances of this case.  I agree with Refshauge and Rares JJ that this appeal ground fails.

Conclusion

1. I have found that appeal grounds 4.2 and 4.3 have been made out.  If the Master was in error in finding that the appellant ought reasonably to have been aware of the risk of harm that eventuated, then there was no basis for his conclusion that the risk of harm was foreseeable and therefore that the appellant had been negligent in failing to take precautions against that risk.  Accordingly, I would uphold the appeal.

I certify that the preceding fifty-one [51] paragraphs numbered [43] to [93] are a true copy of the Reasons for Judgment of her Honour Justice Penfold.

Associate:

Date: 26 June 2014