David Benjamin Wood v Postnet Pty Ltd - [2002] ACTSC 48

David Benjamin Wood v Postnet Pty Ltd [2002] ACTSC 48 (31 May 2002)

CATCHWORDS

NEGLIGENCE – duty of care – foreseeability – nightclub patron injured when falling from awning of nightclub – access to awning gained through window - occupiers duty of care

Law Reform (Miscellaneous Provisions) Act1955 s 15

Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
Downunder Rock Café Pty v Roberts (Victorian Court of Appeal) (1998) Aust Torts Reports ¶81-481
Fry v McGufficke [1998] FCA 1499
Morawski v State Rail Authority of NSW (1988) 14 NSWLR 374
Pennington v Norris (1956) 96 CLR 10
Phillis v Daly (1988) 15 NSWLR 65
Wyong Shire Council v Shirt (1980) 146 CLR 40

No. SC 550 of 1997

Coram: Master T. Connolly
Supreme Court of the ACT
Date: 31 May 2002

IN THE SUPREME COURT OF THE       )
  )          No. SC 550 of 1997
AUSTRALIAN CAPITAL TERRITORY    )

BETWEEN:DAVID BENJAMIN WOOD
Plaintiff

AND:POSTNET PTY LTD
Defendant

AND: CAMERON DOUGLAS BROWN
Third Party

ORDER

Coram:  Master T. Connolly
Date:  31 May 2002
Place:  Canberra

THE COURT ORDERS THAT:

Judgment for the plaintiff in the sum of $277,106.40

Costs reserved

This is a claim for damages for personal injuries arising from a fall sustained by the plaintiff on 26 June 1996 from an awning and associated structures outside licensed premises occupied by the defendant on the corner of Bunda Street and Garema Place in Canberra City, trading under the name of “Late Night Heaven”. The licensed premises were situated on the first floor of the building, and windows opened at near full height from the licensed premises to the awning outside. The plaintiff and a friend, both then aged in their early twenties, left the nightclub through the window and then walked along the awning before climbing up on to a sunshade structure on a neighbouring building. The plaintiff then climbed to the top parapet of the building and sat on the parapet for a while with his legs dangling. He sought to return by pushing himself off the parapet and in effect jumping to the sunshade structure. This gave way, and he fell to the awning level. Unfortunately directly below the point at which he jumped there was a skylight on the awning, and he crashed though this and struck the ground. He sustained very serious injuries, and was indeed fortunate to survive.

At first glance this may seem to be the type of circumstances where a plaintiff should be seen to be entirely responsible for their own misfortune, and indeed the defendant has pleaded that it owed the plaintiff no duty of care, and that the plaintiff voluntarily assumed all risk by climbing through the window onto the awning. The plaintiff’s case is strengthened, however, by the acknowledgment by the defendant that it knew that patrons regularly climbed through the windows to go out onto the awnings. The plaintiffs says that the defendant had a duty to ensure that patrons of the licensed premises…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading David Benjamin Wood v Postnet Pty Ltd

Details

AGLC: David Benjamin Wood v Postnet Pty Ltd [2002] ACTSC 48
Case: [2002] ACTSC 48
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, David Benjamin Wood, the plaintiff, sought damages from Postnet Pty Ltd, the defendant, for personal injuries sustained from a fall from an awning outside the defendant’s nightclub. The plaintiff and his friend exited the nightclub via a window and walked along the awning before climbing onto a sunshade structure on a neighbouring building. The plaintiff then climbed to the top parapet of the building, sat on the parapet, and attempted to return by pushing himself off the parapet, resulting in him falling to the awning level and through a skylight, causing serious injuries. The plaintiff argued that the defendant had a duty to ensure patrons were not able to access the awning, a known dangerous area, and should have installed bars on the windows to prevent this. The defendant argued it owed the plaintiff no duty of care and that the plaintiff voluntarily assumed all risk by climbing through the window onto the awning. The court found the defendant liable for breach of duty of care and awarded damages to the plaintiff, but reduced the amount by two thirds due to the plaintiff’s contributory negligence.

The court considered the law relating to the liability of an occupier, which applied the ordinary principles of negligence regardless of whether the injured person was an invitee, licensee, or trespasser. The occupier must take reasonable care for the safety of persons entering the premises, with the reasonable standard varying according to the circumstances of the plaintiff’s entry. The court found that the defendant, by permitting patrons to leave the club premises by way of the windows and gather on the outside awning, had a duty to ensure that patrons of the licensed premises were not able to get into the obviously dangerous situation that standing on a first floor level awning presented. The defendant could not expect that patrons would pay heed to an obvious danger and not go out onto the awning because it knew patrons habitually did. The court held that the risk of patrons using the awning for a balcony and falling was foreseeable, and the preventative measures, involving a cost of only some hundreds of dollars, should have been taken.

The court found that the plaintiff’s conduct, by walking along the awning, climbing onto the sunshade structure, and then climbing up to the parapet, had a greater impact on his resulting misfortune than the negligence of the defendant in failing to prevent persons from leaving the club and gaining access to the awning. The plaintiff should have departed significantly from the degree of care that a reasonable person visiting a nightclub should be expected to observe. The court attributed responsibility in the proportion of two thirds to the plaintiff and one third to the defendant. Accordingly, the court reduced the assessed award of damages by two thirds and awarded the plaintiff damages in the sum of $277,106.40.

Orders