TORT – Negligence – Judge alone trial – Occupier’s liability under s 14B(3) of the Wrongs Act 1958 – Bed and breakfast accommodation – Driveway sensor light unplugged by first respondent – Applicant injured walking over driveway at night – Driveway in darkness – Applicant did not use torch to illuminate driveway – Whether judge properly identified the risk of harm under s 48(1) of the Wrongs Act 1958 – Identification of risk of harm too narrow – Risk of harm not confined to the precise set of circumstances in which applicant was injured – Whether the nature or type of harm was reasonably foreseeable – Whether risk of harm not insignificant – Low risk of harm materialising – Whether a reasonable occupier in the respondent’ position was required to take further steps to prevent harm –No breach of duty of care – Application for leave to appeal granted – Appeal dismissed.
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APPEARANCES:
Counsel
Solicitors
For the Applicant
Mr A Keogh SC and Ms F Ryan
Robinson Gill Lawyers
For the Respondents
Mr J Ruskin QC and Ms A Magee
DLA Piper
KYROU JA KAYE JA:
The applicant commenced proceedings in the County Court claiming damages for injuries that he sustained on 29 June 2010 while walking on the driveway of premises owned and occupied by the respondents on the Maroondah Highway, Healesville. He alleged that his injuries were caused by a breach of the duty owed to him by the respondents and also by a breach of contract between himself and the respondents. The case was heard by a judge sitting alone. In a reserved decision, the judge held that the applicant had failed to establish that the respondents had breached their duty of care to the applicant. His Honour also held that he was not satisfied that any alleged breach of duty by the respondents would have caused the injuries sustained by the applicant. Accordingly, the applicant’s claim for damages was dismissed with costs. The applicant now seeks leave to appeal the whole of the judgment.
Before the hearing of the application, the Court informed the parties that it would hear and determine the appeal instanter if the application for leave was granted.
The respondents’ property was described by the judge as a semi-rural property comprising some two acres. The respondents purchased the property in 1994. In addition to the house on the property, there was also a garage, with a loft above it. The respondents converted the loft to a residence. For some time, they operated the loft as a bed and breakfast facility providing overnight accommodation for tourists and other…
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.
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Details
AGLC
Erickson v Bagley [2015] VSCA 220
Case
[2015] VSCA 220
Decision Date
CaseChat Overview and Summary
Erickson brought an action against Bagley for injuries sustained when she tripped over a loose paving stone on Bagley's property. The incident occurred when Erickson was walking over a driveway at night. Bagley was the owner of a bed and breakfast, and the driveway was part of the premises. Bagley had unplugged a sensor light on the driveway, which left the area in darkness. Erickson did not use a torch to illuminate the area. The matter was heard by a judge alone in the County Court of Victoria. Erickson argued that Bagley had breached her duty of care by not taking reasonable steps to ensure the safety of the premises.
The central issue before the court was whether Bagley had breached her duty of care owed to Erickson under the Occupier’s liability provisions of the Wrongs Act 1958. Specifically, the court had to determine whether Bagley had identified a risk of harm under section 48(1) of the Wrongs Act, and if so, whether the risk was not insignificant and whether a reasonable occupier in Bagley's position would have taken further steps to prevent the harm. The court also had to consider whether the risk of harm was confined to the precise circumstances in which Erickson was injured, and whether the nature or type of harm was reasonably foreseeable.
The court held that the risk of harm was not confined to the precise circumstances in which Erickson was injured. It was reasonably foreseeable that someone walking over the driveway at night would be at risk of tripping over a loose paving stone. The risk of harm was not insignificant, as it was a matter of common experience that people can trip on loose paving stones. However, the court found that a reasonable occupier in Bagley's position would not have taken further steps to prevent the harm, as it was not an obvious or easily preventable risk. The court held that Bagley had not breached her duty of care, and Erickson's application for leave to appeal was granted, but the appeal was ultimately dismissed.
The court found in favour of Bagley and dismissed Erickson's claim. The court held that Bagley had not breached her duty of care owed to Erickson, and that the risk of harm was not insignificant, but that a reasonable occupier in Bagley's position would not have taken further steps to prevent the harm. The court found that the risk of harm was not confined to the precise circumstances in which Erickson was injured, and that it was reasonably foreseeable that someone walking over the driveway at night would be at risk of tripping over a loose paving stone. However, the court held that the risk of harm was not significant enough to require further steps to be taken by Bagley to prevent the harm. The court dismissed Erickson's application for leave to appeal, and Erickson's claim was ultimately unsuccessful.