| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : DOYLE (WA) PTY LTD -v- ING REAL ESTATE JOONDALUP BV [2013] WADC 181 CORAM : WAGER DCJ HEARD : 4 NOVEMBER 2013 DELIVERED : 26 NOVEMBER 2013 FILE NO/S : CIV 3127 of 2012 BETWEEN : DOYLE (WA) PTY LTD Plaintiff
AND
ING REAL ESTATE JOONDALUP BV
Defendant
Catchwords: Tort - Negligence - Injury after trip and fall - Common law principles - Occupiers' Liability Act 1985 (WA) - Civil Liability Act 2002 (WA) - Section 93 Workers' Compensation and Injury Management Act 1981(WA) Legislation: Civil Liability Act 2002 (WA)
Occupiers' Liability Act 1985 (WA)
Workers' Compensation and Injury Management Act 1981 (WA)
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Result: Plaintiff's claim dismissed
Representation: Counsel:
Plaintiff : Mr A J Power
Defendant : Mr H M O'Sullivan
Solicitors:
Plaintiff : WHL Legal Pty Ltd
Defendant : SRB Legal
Case(s) referred to in judgment(s):
Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 260 ALR 628
Department of Housing and Works v Smith [No 2] [2010] WASCA 25
Jones v Darkan Hotel [2013] WADC 70
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254
Town of Port Hedland v Hodder [No 2] [2012] WASCA 212
Wallace v Kam [2013] HCA 19
Watch Tower Society v Sahas (2008) 36 WAR 234
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1 WAGER DCJ: Ms Douglas was employed by the plaintiff at its barbershop Governor's Men's Hair that was situated at the Lakeside Joondalup Shopping City shopping centre.
2 On 21 November 2009 when making her way from the barbershop to the toilet via service yard 7, Ms Douglas tripped over a metal bracket that had been set into the concrete surface of the service yard thereby falling and injuring herself. Ms Douglas received payments from the plaintiff pursuant to the Workers' Compensation Injury Management Act 1981 (WCIMA) agreed to be an amount in the total sum of $52,989.12 (the recovery amount). 3 The defendant was the registered proprietor of the shopping centre at the time of Ms Douglas' trip and fall. 4 The plaintiff seeks to recover an indemnity for a contribution to the recovery amount pursuant to s 93 WCIMA because it contends the defendant breached its duty of care in that it was negligent and/or it was in breach of its obligations pursuant to s 5 Occupiers' Liability Act (OLA) because the trip hazard constituted by the metal bracket would have been obvious to a reasonable person in the defendant's position. 5 The defendant admits it was the occupier of the shopping centre at the time and that it owed a duty of care to persons such as Ms Douglas both under the common law and pursuant to the OLA, however the defendant denies that it was in breach of its duty to Ms Douglas. 6 The defendant further claims that if it was in breach of a common law or a statutory obligation it owed the plaintiff, then further and in the alternative, Ms Douglas and/or her employer contributed to Ms Douglas' injury pursuant to s 93(1) and s 93(2) WCIMA requiring a reduction to the sum pleaded as the recovery amount.
The pleadings 7 The plaintiff accepts the bracket had been painted yellow at an earlier time but submits the paint had chipped off and faded and the area had become dirty. In par 10 of its amended statement of claim the plaintiff's particulars of negligence and/or breach of OLA contend that the defendant: (Page 4)
(c) Failed to warn that the metal bracket posed a danger to those entering the service yard; (d) Failed to cover the metal bracket when not in use; (e) Failed to advise that accessing toilets via service yard 7 was prohibited; (f) Failed to alert pedestrians using service yard 7 to the presence of the metal bracket by painting, marking or otherwise highlighting its presence in a way which would make its presence and hazardous nature obvious to such pedestrians. 8 The plaintiff submits that the inference to be drawn from the original painting of the bracket is that it had been painted in order to warn pedestrians and others using the service yard of its presence. The plaintiff submits the defendant should have kept the bracket and surrounding area painted in a vivid, solid and bright colour so that a distinction between the raised bracket area and the level concrete surface of the yard was clearer. Further, the plaintiff submits the defendant should have painted words of warning on the concrete adjacent to the bracket such as 'warning' or 'trip hazard – metal protrusion'. 9 The defendant admits it was the occupier of the service yard and, as the occupier, it admits it owed a duty to persons such as Ms Douglas at common law and pursuant to s 5(1) OLA. The defendant however denies breaching its duty to Ms Douglas and pleads in its amended defence at par 6 that: (Page 5)
6.4 The metal bracket, which stands some 5 cm above the concrete driveway, is painted yellow and as a consequence, and for the purposes of s 5N of the Civil Liability Act 2002, the risk of tripping on the same in daylight hours is obvious and need not be the subject of a warning. 10 Further, and in the alternative, contributory negligence is pleaded by the defendant as follows: 7. Further and in the alternative, if Douglas tripped and fell as is alleged in par 9 of the statement of claim, for the purposes of s 5K of the Civil Liability Act 2002, Douglas is guilty of contributory negligence in that she failed to take any or any appropriate precautions for her own safety. 8. Further and in the alternative, if Douglas tripped and fell as is alleged in par 9 of the statement of claim, the fall occurred as a result of negligence on the part of the plaintiff. Particulars of negligence The plaintiff, as employer, was negligent in that it: 8.1 failed to direct Douglas not to access the staff toilets via service yard 7; 8.2 failed to warn Douglas of the existence of the metal bracket and of the fact that it constituted a tripping hazard; 8.3 failed to warn Douglas that, when obtaining access to the staff toilets via service yard 7, she should pay close attention to her path of travel: The evidence 11 Only two witnesses were called to give evidence. The plaintiff called Ms Douglas and the defendant called Ms Francis who has been the assistant centre manager/retail manager at the shopping centre since 2004. A book of photographs and plans including plans of the shopping centre, photographs of service yard 7, the metal bracket and related areas was tendered by consent (exhibit 1.1 - 1.43). (Page 6)
12 In evidence Ms Douglas said she had worked at the barbershop for three weeks prior to the fall, however she had never been to the toilet at the shopping centre in this period. At about 11 am on 21 November 2009 she asked for and received directions to the toilet from staff at the barbershop. She was directed to go through the service yard in order to reach the toilet which was a route she had never taken before. She was unaware of why she tripped but on falling she injured her back, her right shoulder, her left knee and her forehead. After falling two men came to assist her and picked her up. She was able to look back at that time and saw the metal bracket and she realised she had tripped over it and fell. She had not seen it prior to tripping. 13 The bracket was a little bar protruding from the ground which she described as being metal with a very little bit of yellow paint on it. Ms Douglas agreed that photographs exhibit 1.5 to 1.10 showed a bracket consistent with the one she had tripped over on that day. I am satisfied that the bracket photographed is the bracket Ms Douglas tripped over. 14 In cross-examination Ms Douglas said she was unaware of the public entrances to the shopping centre and unaware of any other routes she could have taken to the toilet. In relation to the photographs of the bracket, specifically exhibit 1.5, she agreed that the bracket shown was similar to the bracket that had caused her trip and fall however she thought the metal bracket in the photograph stood out from the concrete. It 'just stands out because you are asking me to focus and look at that' (ts 55). In cross-examination she was asked (ts 55): Now, you'd agree with me that from looking at that photograph there the metal bracket is not difficult to detect, is it? … Only because you're getting me to focus on that and point out to that, at this stage it's noticeable. 15 She said that in daylight the bracket does not stand out as it did in the photograph. The photographs were taken during daylight hours on 5 February 2010 approximately three months after Ms Douglas' fall that also occurred in daylight on a November day. 16 Ms Douglas clarified that when walking across the service yard she was walking into an environment that she did not know and she was just focusing on the entrance that led to the toilet. She denied that she failed to keep a proper lookout stating: If I was to walk with my head like that (indicating facing down towards the ground) yes. But how can I see where I'm going? I need to focus and look at the surroundings and where I am aiming for. I don't walk like that. (Page 7)
17 However she agreed with the proposition that in the usual course 'you can walk along the street, the footpath … and you can at the same time, without great difficulty, monitor what is in front of you, both in the distance and on the ground immediately in front of you' (ts 56). 18 Ms Francis, who gave de bene esse evidence on 24 October 2013, said that it was part of her duties to receive daily reports in relation to incidences and accidents at the shopping centre. To her knowledge no other accidents involving the metal bracket for the gate for service yard 7 had occurred, prior to or after Ms Douglas' fall. 19 Ms Francis described that there are seven service yards at the shopping centre. Service yard 7 was the last stage of the development to be built and was completed in 2008. She agreed that the photographs in exhibit 1 that were taken on 5 February 2010 appeared similar to how the area appeared on the date of the trip and fall on 21 November 2009. She noted however that the accident had occurred three months before the date on which the photographs had been taken without commenting further on what, if any, impact the time period had had on service yard 7. 20 Ms Francis confirmed that the gates to each service yard are unlocked and opened at 7.30 am each day and closed and re-locked at 7.30 pm each night. The gates are locked at night in order to provide security and to stop people from sleeping in the rubbish compactors. Daytime access is unrestricted and, on a busy day, the service yard would receive up to 30 or 40 deliveries. The service yard area is also used for rubbish disposal (because it houses a cardboard compactor), as a place for shopkeepers to pay for deliveries and for staff and others to use as a smoking area. She confirmed that access to the toilets across the service yard is not discouraged. 21 Ms Francis acknowledged that the raised metal bracket would be a tripping hazard if it was a grey metal colour rising directly from the grey concrete surface however she noted that it was painted yellow. She considered that access to the service yard could not be cut off during the daytime because of the frequency of use. In her view if a cover was to be placed over the bracket then rather than assist to alert pedestrians to the bracket it would simply be a more serious trip hazard. She noted that a warning sign could be placed on the wall but it would be behind the gate once the gate was open which was its position during the daytime. She agreed that it was possible to put signs in the area setting out the potential danger of the bracket however a permanent sign would cause a further hazard and would be an additional obstacle for delivery trucks and (Page 8)
drivers. She noted that bollards in the shopping centre had been the cause of accidents in the past. 22 Ms Francis agreed that painting words of warning on the concrete surround was possible and would be inexpensive however nobody had requested that this be done. She confirmed that if a tenant required a sign to be put up, they would have to ask permission. No tenant had asked for a sign to be erected. 23 When shown photograph exhibit 1.4 she agreed with the proposition that quite a lot of the yellow paint had worn off or been chipped off the bracket. She agreed with the proposition that the more paint that was removed from the bracket and its surrounding concrete apron, the duller the paint became and the less visible the bracket would appear to be. 24 Ms Francis stated that the bracket was painted yellow at the time when the builders handed the service yard over to the shopping centre management. The shopping centre had a full-time maintenance staff. She did not direct when the bracket was to be repainted nor did she consider she would have been told if the bracket was going to be repainted. She doubted that records of a minor repair of that nature would have been kept.
Exhibit 1.1 - 1.43 25 It is agreed that exhibit 1.30 shows a plan of the shopping centre with cameras drawn in on angles indicative of where the photographs shown in exhibit 1.1 - 1.25 were taken. Photographs exhibit 1.5 - 1.10 are close-up views of the painted metal bracket. Photographs 1.7, 1.8 and 1.9 show a tape measure that indicates that the bracket is 25 cm long and 5 cm high. The width is not specified, however it appears to be roughly square. 26 Although no evidence of any measurements has been led, using the photographs of the tape measure shown in exhibit 1.8, the solid painted yellow border around the painted metallic bracket appears to be approximately 6 cm in width on all sides. Accordingly, the total yellow painted area of the bracket is approximately 37 cm square. The metal bracket contained therein is approximately 25 cm square. The photographs show that paint has chipped off the metal bracket however the 6 cm solid border remains almost intact. As a result there is a contrast between the grey concrete surface of the service yard, the painted yellow solid border and the metal bracket in the middle that has exposed metal showing. The remainder of the concrete surface is marked in places, however those marks are of a similar colour to the grey (Page 9)
concrete surface. The only yellow mark on the concrete in the area that has been photographed is the painting around the metal bracket and the painting on the metal bracket itself. The colour yellow is not an iridescent yellow however the yellow border clearly contrasts with the grey concrete. The paint colour is consistent with the colour used on public footpaths to indicate service hatches or to indicate the edges of public stairs. 27 Although there are no measurements in relation to the distance from the corner of the barbershop to the location of the bracket, the bracket is situated slightly forward of two bollards in place on either side of the driveway towards the rear of the barbershop. 28 The photographs exhibits 1.2 and 1.12 and plan exhibit 1.27 show the metal bracket is positioned in line with a point approximately two-thirds of the way along the length of the side wall of the barbershop as it extends from Boas Avenue into the service yard. Photograph 1.4 (relied upon by counsel for the plaintiff in submissions) was taken from the front corner of the barbershop looking back into the service yard. Photograph 1.12 (which is described as photo 13 on exhibit 1.30) is photographed almost directly opposite the metal bracket but from a position near the barbershop wall. 29 Counsel for the plaintiff submits that, consistent with photograph exhibit 1.4, it is difficult to see the metal bracket from a position at the front corner. I accept it is difficult to tell from the photograph how visible the yellow area is from the front corner of the service yard, however Ms Douglas walked forward from this point in the direction of the bracket. The photographs are consistent with the yellow surround being clearer when closer to the metal bracket and the bracket being much clearer from the camera angles closer to the bracket than from camera angles indicative of being located further back at the barbershop front corner. 30 The inference to be drawn from the bracket being painted yellow was that the builders recognised the bracket was a trip hazard and painted it in order to alert others to the hazard. I accept that the metal bracket and yellow surround was painted in 2008 consistent with the date of completion of service yard 7 and the area was repainted after 5 February 2010, however the issue is whether the area was painted sufficiently in November 2009. From an assessment of the photographs I accept that although some of the paint had been chipped off, the metal bracket and the surrounding yellow area were clear to pedestrians accessing the (Page 10)
service yard in daylight hours in November 2009 and the yellow paint indicated the need for caution. 31 Ms Douglas had never taken the route to the toilets across the service yard before. She failed to look down at the ground in front of her and failed to look ahead from the time she started from the corner of the barbershop until she tripped over the metal bracket. Had she looked to the ground ahead she would have seen the yellow painted area of the metal bracket and its surrounds because of the clear distinction between the yellow paint and the grey concrete.
Legal issues 32 At common law an occupier owes a duty of care to any person whose presence on the premises is reasonably foreseeable in respect of risks of physical injury arising out of the condition of the premises: Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254 [17] (Gleeson CJ), [102] (Hayne J). 33 A statutory duty is set out in the OLA. Section 4 OLA provides: Application of sections 5 to 7 (1) Sections 5 to 7 shall have effect, in place of the rules of the common law, for the purpose of determining the care which an occupier of premises is required, by reason of the occupation or control of the premises, to show towards a person entering on the premises in respect of dangers - (a) to that person; or (b) to any property brought on to the premises by, and remaining on the premises in the possession and control of, that person, whether it is owned by that person or by any other person, which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier of premises is by law responsible. (2) Nothing in sections 5 to 7 shall be taken to alter the rules of the common law which determine the person on whom, in relation to any premises, a duty to show the care referred to in subsection (1) towards a person entering those premises is incumbent. (Page 11)
34 Section 5 OLA relevantly provides: Duty of care of occupier (1) Subject to subsections (2) and (3) the care which an occupier of premises is required by reason of the occupation or control of the premises to show towards a person entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible shall, except in so far as he is entitled to and does extend, restrict, modify or exclude by agreement or otherwise, his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger. (2) … (3) … (4) Without restricting the generality of subsection (1), in determining whether an occupier of premises has discharged his duty of care, consideration shall be given to - (a) the gravity and likelihood of the probable injury; (b) the circumstances of the entry onto the premises; (c) the nature of the premises; (d) the knowledge which the occupier of premises has or ought to have of the likelihood of persons or property being on the premises; (e) the age of the person entering the premises; (f) the ability of the person entering the premises to appreciate the danger; and (g) the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person. 35 The issue of the relationship between the OLA and the common law of negligence was dealt with in Watch Tower Society v Sahas (2008) 36 WAR 234. Recently Keen DCJ in Jones v Darkan Hotel [2013] WADC 70, summarised the issues raised in that case. I adopt that summary: (Page 12)
178 Both Pullin JA and Heenan AJA noted that there were two lines of authority in this State; one to the effect that there is no longer a duty imposed by the common law on occupiers of premises, the other to the effect that the OLA did not create a new statutory cause of action and did no more than to reform the common law by replacing the common law rules and regulating the standard of care owed by occupiers with a single standard of care: see Pullin JA [9]. 179 His Honour Heenan AJA at [37] noted a number of cases and observed that in Jones v Bartlett (2000) 205 CLR 166 the High Court seem to assume the parallel existence of an action of negligence at law and a statutory cause of action under the OLA. His Honour also observed that in Town of Mosman Park v Tait (2005) 141 LGERA 171 McLure JA proceeded, in the absence of submissions by the parties, on the assumption that concurrent duties of care existed. 180 At [35] and [54] Heenan AJA observed that there was a difference between an action for damages for common law negligence and an action for damages for breach of statutory duty where the latter involves an action for breach of an Act which confers a cause of action which, otherwise, would not exist. 181 Once again, that was a case where the controversy as to the operation of the Act did not have to be resolved. Whilst for the purposes of that case his Honour was prepared to assume that the OLA did replace and remove an action for damages at common law arising from injury incurred on premises arising from negligence or other breach of duty by an occupier ([42]), his view was that the OLA does nothing more than operate in a complimentary way with the doctrines of common law, except to the extent that it specifically identifies the standard of care which applies in circumstances identified by the Act. At [60] his Honour observed, as to whether the OLA creates an exclusive statutory liability which excludes the general law of negligence: '… I certainly incline to the view that it does not have that effect, notwithstanding that, to a significant extent, it supplies the content of the standard of care owed by the occupier.' 36 In Jones v Darkan Hotel Keen DCJ concluded that the OLA did not create an exclusive statutory liability which excluded the general law of negligence.
Section 5 OLA – Factual findings 37 Although the defendant did not arrange for the metal bracket to be painted yellow it was predominantly yellow and therefore contrasted with (Page 13)
the surrounding grey concrete. The plaintiff has not pressed the particulars of negligence and/or breach of OLA in par 10 of its amended statement of claim in light of Ms Francis' evidence. Specifically, the plaintiff no longer argues that the defendant failed to restrict access to service yard 7 in light of Ms Francis' evidence of access and use during daylight hours, nor does the plaintiff assert that the defendant failed to cover the metal bracket when not in use given Ms Francis' evidence in relation to a cover forming a trip hazard. The defendant did not prohibit access to the toilets via service yard 7. Nor did it caution against entry to the yard itself. 38 Essentially the plaintiff asserts that by failing to re-paint the metal bracket so that it was brighter and fresher and by failing to write points of warning in vivid paint on the concrete near the metal bracket the defendant failed to discharge its duty of care. I make the following observations in relation to the plaintiff's assertions in respect of s 5(4) OLA: (a)The gravity and likelihood of the probable injury. The metal bracket was raised above a flat surface. If the bracket and surrounding area was metallic grey so that those to whom the defendant owed a duty could not see it clearly then there would be a real risk of probable injury. Ms Francis' evidence that, since 2008 Ms Douglas' trip on the bracket and fall had been the only one recorded by the shopping centre when a number of people of different categories used service area 7 on a daily basis is consistent with there being a low probability of injury. Any trip and fall would be onto a hard but flat surface. I do not consider catastrophic injuries would be likely to occur. (b)The circumstances of the entry onto the premises. Ms Douglas was employed at the barbershop. It is unusual that in three weeks of employment she had not gone to the toilet while at work. The defendant expected employees to enter the service yard in order to access the toilet and entry was not discouraged. (Page 14)
(c)The nature of the premises. The service yard was part of the shopping centre. The defendant had a duty to ensure that all people using the service yard were aware of the raised metallic bracket. (d)The knowledge which the occupier of premises has or ought to have of the likelihood of persons or property being on the premises. The defendant knew that a number of people of various classes would be on the premises. (e)The age of the person entering the premises. The defendant expected people of all ages to enter the premises. (f)The ability of the person entering the premises to appreciate the danger. The area was clearly a service yard in a shopping centre. An area painted yellow in the middle of a flat concrete surface would indicate to a person entering the premises that the yellow area had been painted for some reason, in this case because the raised metal bracket required pedestrians to lift their feet higher over the bracket. (g)The burden on the occupier of eliminating the danger or protecting a person entering the premises from the danger as compared to the risk of the danger to the person. It would cost very little for the defendant to re-paint the metal bracket or to write words of warning on the concrete in the area near the metal bracket however there is no evidence that either option would have alerted a pedestrian to the raised metal bracket to any greater extent than they were already alerted by the bracket being painted yellow (albeit chipped in the centre) and surrounded by a block border of yellow paint. No evidence was led as to where the words should be painted, what the words should be or what side of the square the words should be painted on. There was no evidence led from which an inference could (Page 15)
be drawn that painted words would be any more effective at bringing attention to the raised metal bracket than painting the bracket yellow and having it surrounded by yellow paint. 39 My findings in respect of s 5(4) OLA are also applicable to the question at common law in respect of whether the occupier has discharged its duty of care to a person whose presence on the premises was reasonably foreseeable in respect of the risk of physical injury that arose from the condition of the premises.
Section 5B CLA 40 Section 5B CLA states: 41 In Department of Housing and Works v Smith [No 2] [2010] WASCA 25, the interaction between the common law and s 5B CLA was discussed. Pullin JA (Newnes JA) said [11]: The High Court in Adeels did not expressly consider the question whether in New South Wales the common law relating to duty of care, standard of care or causation continued to apply or whether the relevant Civil Liability (Page 16)
Act provisions modified the common law or entirely supplanted the common law. However, the impression I gain from the reasons is that the High Court regarded the relevant provisions of the New South Wales Act as supplanting the common law. 42 Buss JA however reasoned that the High Court in Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 260 ALR 628, did not regard the relevant provisions of the Civil Liability Act 2002 (NSW) as supplanting the common law relating to the duty of care, standard of care or causation. Buss JA said [74]: (Page 17)
201 CLR 49; 168 ALR 123; [1999] HCA 67 at [18] - [28]) but to ensure that the imposition of a common law duty of reasonable care of the kind now in question would not run counter to the statutory requirements imposed on licensees in all Australian jurisdictions. … Several considerations set the present case apart from Modbury and point to the conclusion that Adeels Palace owed each plaintiff a relevant duty of care. First, the complaint that was made in these cases was that the occupier of premises failed to control access to, or continued presence on, its premises (compare Modbury at [117]). Secondly, the premises concerned were licensed premises where liquor was sold. They were, therefore, premises where it is and was well recognised that care must be taken lest, through misuse and abuse of liquor, "harm [arise] from violence and other anti-social behaviour" (section 2A of the Liquor Act). And thirdly, the particular duty said to have rested on the occupier of the premises, (who was the operator of the business that was conducted on the premises) is a duty to take reasonable care to prevent or hinder the occurrence of events which, under the Liquor Act, the licensee was bound to prevent occurring - violent, quarrelsome or disorderly conduct. (And although variously expressed in the legislation of other Australian jurisdictions, the evident scheme of all liquor licensing laws in Australia is to minimise anti-social conduct both on and off licensed premises associated with consumption of alcohol) [21], [22], [25].' (emphasis added) Fifthly, their Honours said that the question of breach of duty must be considered by reference to the relevant provisions of the Civil Liability Act - in particular s 5B [27]. A little later their Honours added that whether any, and how many, security personnel should have been provided to satisfy the appellant's duty to take reasonable care depended upon the considerations identified in s 5B(2) [30]. 43 Buss JA noted the difference in language between the Civil Liability Act 2002 (NSW) and the CLA however determined the difference in language was insufficient to distinguish the authorities which have held or proceeded on the basis that s 5D of the New South Wales Act relates to breach of a duty of care and does not modify or supplant common law principles which determine whether a duty of care exists or not: [76]. 44 Recently, in Wallace v Kam [2013] HCA 19 the High Court considered the determination of causation in a medical negligence case involving a failure to warn of the risks of surgical procedure. The plurality analysed the requirements of s 5D of the Civil Liability Act (Page 18)
2002 (NSW). Although s 5D is slightly different from s 5C CLA in our legislation, it is not materially different. 45 In considering the statutory distinction between factual causation and scope of liability the court determined that s 5D Civil Liability Act (NSW) guides but does not displace common law methodology: [16] – [25]. 46 Although it is unnecessary to determine the relationship between the common law and statutes in light of the factual circumstances of this case, I proceed on the basis that s 5B CLA relates to a breach of a duty of care but does not supplant or modify common law principles which determine whether a duty of care exists or not.
Section 5B CLA – Factual findings 47 I have considered the following questions: (a) Was the risk a risk which the person knew or ought to have known? The defendant knew or ought to have known of the metal bracket. Had it not been painted yellow or had the yellow not indicated a clear warning the defendant should have made it clear. (b) Was it a risk that was not insignificant? For the reasons outlined, the risk was significant however catastrophic injury was unlikely to result. (c) In the circumstances would a reasonable person in the defendant's position have taken those precautions? A reasonable person would have painted the metal bracket yellow. No further precautions would have been taken by a reasonable person because: (i) the probability that harm would occur if further paint was not applied was very low; (ii) further painting of the metal bracket would not impact on the likely seriousness of the harm; (iii) although there was very little burden in further painting the metal bracket I do not find that further (Page 19)
painting would have been a useful precaution to avoid the risk of harm; (iv) the bracket was necessary to lock the gates. The gates needed to be locked at night in order to stop access to the yard so that the risk of burglary was reduced and to stop people from sleeping in the compactors which I accept would have been dangerous. The gates once opened in the daytime needed to remain open in order for the shopping centre to function. 48 I find that by failing to further paint the metal bracket on the surrounding area the defendant was not in breach of the duty it owed Ms Douglas. 49 The painted bracket was in the circumstances obvious to a reasonable person in the position of Ms Douglas: s 5F CLA. 50 My findings in relation to a consideration of the facts applying the common law, the OLA and the CLA are consistent with a finding that the defendant was not in breach of the duty it owed Ms Douglas. It is recognised that the interaction between the common law and statutes needs to be resolved in an appropriate case, however that issue does not need to be determined in this case: Department of Housing and Works v Smith [No 2]; Town of Port Hedland v Hodder [No 2] [2012] WASCA 212; Wallace v Kam.
Contributory negligence 51 For the reasons given I do not need to determine the issue of contributory negligence, however I find that in not looking at the ground between the corner of the barbershop and the location of the trip and fall Ms Douglas failed to keep a proper lookout. 52 For the reasons outlined, the plaintiff's claim for the recovery amount against the defendant is dismissed.
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