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Finniss v State of New South Wales

Finniss v State of New South Wales

Case [2023] NSWCA 292 8 December 2023

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Court of Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Finniss v State of New South Wales [2023] NSWCA 292
Hearing dates: 9 November 2023
Date of orders: 8 December 2023
Decision date: 08 December 2023
Before: Payne JA at [1];
Stern JA at [98];
Basten AJA at [99]
Decision:
(1) Appeal dismissed;
(2) Appellant to pay the respondent’s costs.

Catchwords:
TORTS – negligence – occupier’s liability – school cleaner injured by striking head on a storeroom doorframe – storeroom contained cleaning products and other items – whether occupier was negligent – whether relocating entire contents of storeroom was a reasonable precaution – whether burden of taking precaution was overly onerous – where burden included burden of taking similar precautions – cleaner’s contributory negligence – where risk of harm was patently obvious to person in cleaner’s position – apportionment of liability between occupier and cleaner’s employer – assessment of damages for non-economic loss
COSTS – party/party costs – costs of appeal – where appellant succeeded on several grounds – where respondent wholly successful on notice of contention – where respondent did not lead primary judge into error

Legislation Cited:
Civil Liability Act 2002 (NSW) ss 5B, 5C, 5D, 5F, 5G, 5H and 16
Workers Compensation Act 1987 (NSW) ss 151H and 151Z

Cases Cited:
ALDIFoods Pty Ltd v Young [2016] NSWCA 109; (2016) Aust Torts Reports 82-272
Basha v Vocational Capacity Centre Pty Ltd [2009] NSWCA 409
Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370
Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49
Chen by her tutor Huang v Kmart Australia Ltd [2023] NSWCA 96
Collins v Insurance Australia Ltd (2022) 109 NSWLR 240; [2022] NSWCA 135
Crystal Wall Pty Ltd v Pham [2005] NSWCA 449
Dell v Dalton (1991) 23 NSWLR 528
Francis v Lewis [2003] NSWCA 152
Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151
Hall v State of New South Wales [2014] NSWCA 154
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jones v Bartlett (2000) 205 CLR 166; [2000] HCA 56
Joslyn v Berryman (2003) 214 CLR 552; [2003] HCA 34
Kuruv State of New South Wales (2008) 236 CLR 1; [2008] HCA 26
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492
Rail Corporation New South Wales v Donald; Staff Innovations Pty Ltd t/as Bamford Family Trust [2018] NSWCA 82
Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40
Taber v NSW Land and Housing Corporation [2001] NSWCA 182
Uniting Church in Australia Property Trust (NSW) v Miller (2015) 91 NSWLR 752; [2015] NSWCA 320
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9
White v Redding (2019) 99 NSWLR 605; [2019] NSWCA 152
Wynn Tresidder Management v Barkho [2009] NSWCA 149; (2009) Aust Torts Reports 82-016
Zanner v Zanner (2010) 79…

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 Finniss v State of New South Wales

Details

AGLC: Finniss v State of New South Wales [2023] NSWCA 292
Case: [2023] NSWCA 292
Decision Date: 08 December 2023

CaseChat Overview and Summary

The case of *Finniss v State of New South Wales* concerned an appeal to the Court of Appeal of New South Wales following a primary judge's decision. The appellant, a school cleaner, had suffered injury when striking her head on a storeroom doorframe while performing her duties. The dispute centred on whether the occupier, the State of New South Wales, was negligent in its duty of care towards the cleaner, and whether the cleaner herself had been contributorily negligent.

The central legal issues before the Court of Appeal were whether the occupier had breached its duty of care by failing to take reasonable precautions to prevent the cleaner from sustaining injury, specifically in relation to the storeroom's configuration and contents. This involved considering whether relocating the entire contents of the storeroom was a reasonable precaution, and whether the burden of taking such precautions, including the burden of taking similar precautions across other areas, was overly onerous. The court also had to determine if the risk of harm was patently obvious to the cleaner, thereby establishing contributory negligence on her part, and if so, how liability should be apportioned between the occupier and the cleaner's employer. Finally, the assessment of damages for non-economic loss was also a point of consideration.

The Court of Appeal dismissed the appeal, upholding the primary judge's findings. The court reasoned that the risk of striking one's head on the doorframe was patently obvious to a person in the cleaner's position, particularly given her familiarity with the storeroom. Consequently, the court found that the cleaner had been contributorily negligent. The court also concluded that the occupier had not breached its duty of care, finding that the burden of taking the proposed precautions, such as relocating the storeroom's contents, would have been overly onerous and disproportionate to the foreseeable risk. The court further noted that the respondent had been wholly successful on its notice of contention and had not led the primary judge into error.

As a result of the appeal being dismissed, the appellant was ordered to pay the respondent's costs of the appeal.

Orders

Orders of the court

(1) Appeal dismissed;

(2) Appellant to pay the respondent’s costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

Finniss v State of New South Wales [2023] NSWCA 292

Most Recent Citation

Koschier v R [2024] NSWCCA 24

Cases Citing This Decision

Koschier v R [2024] NSWCCA 24
Citation 1 (Para 73)

…at, to the extent that the primary judge engaged in this type of reasoning, his doing so gave rise to a material error (cf. Finniss v New South Wales [2023] NSWCA 292 at [86]-[87]) or that his decision was apt to cause an injustice. Many of the examples of prejudice relied upon by the Applicant were, as the primary…

See all citing cases →

Cases Cited

GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32
Citation 1 (Para 85)

…NSWCA 96 at [12]. It may be that the recent decision of the High Court in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 will be relevant to determination of this issue. Following GLJ , an appeal from an evaluative judgment leading to a binary choice is no longer to be…
Chen by her tutor Huang v Kmart Australia Ltd [2023] NSWCA 96
Citation 2 (Para 85)

…25]-[26] and Gleeson JA at [61] (taking different sides of the debate) and more recently by White JA in Chen by her tutor Huang v Kmart Australia Ltd [2023] NSWCA 96 at [12]. It may be that the recent decision of the High Court in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HC…
Finniss v State of New South Wales (No. 1) [2023] NSWDC 83
Citation 3

…ecision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2023] NSWDC 83 Date of Decision: 22 February 2023 Before: Nielson DCJ File Number(s): 2021/172686…
Collins v Insurance Australia Ltd [2022] NSWCA 135
Citation 4 (Para 35)

…was here met: Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 at [150]; Collins v Insurance Australia Ltd (2022) 109 NSWLR 240; [2022] NSWCA 135 at [37] quoting Rail Corporation New South Wales v Donald; Staff Innovations Pty Ltd t/as Bamford Family Trust [2018] NSWCA 82 at [140].…
Boensch v Pascoe [2019] HCA 49
Citation 5 (Para 67)

…ddress the remaining grounds of appeal: Kuru v State of New South Wales (2008) 236 CLR 1; [2008] HCA 26 at [12]; Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49 at [8].…
White v Redding [2019] NSWCA 152
Citation 6 (Para 85)

…ting either way, are gathered in Hall by Leeming JA at [31]-[32], in Berkeley Challenge by Basten JA at [13], in White v Redding (2019) 99 NSWLR 605; [2019] NSWCA 152 by Macfarlan JA at [25]-[26] and Gleeson JA at [61] (taking different sides of the debate) and more recently by White JA in Chen by her tutor Huang v…
Rail Corporation New South Wales v Donald; Staff Innovations Pty Ltd t/as Bamford Family Trust [2018] NSWCA 82
Citation 7 (Para 35)

…2) 109 NSWLR 240; [2022] NSWCA 135 at [37] quoting Rail Corporation New South Wales v Donald; Staff Innovations Pty Ltd t/as Bamford Family Trust [2018] NSWCA 82 at [140].…
ALDI Foods Pty Ltd v Young [2016] NSWCA 109
Citation 8 (Para 43)

…not owe a duty of care to the appellant to ensure that the premises were as safe as human skill could possibly make them: ALDI Foods Pty Ltd v Young [2016] NSWCA 109; (2016) Aust Torts Reports 82-272 at [177].…
Uniting Church in Australia Property Trust (NSW) v Miller [2015] NSWCCA 320
Citation 9 (Para 31)

…cation of the risk of harm is central to the operation of s 5B of the Civil Liability Act : Uniting Church in Australia Property Trust (NSW) v Miller (2015) 91 NSWLR 752; [2015] NSWCA 320 at [102] per Leeming JA (Basten and Simpson JJA agreeing). As I have said, the primary judge did not properly identify the risk of…
Uniting Church in Australia Property Trust (NSW) V Miller; Miller v Lithgow City Council [2015] NSWCA 320
Citation 10 (Para 31)

…harm is central to the operation of s 5B of the Civil Liability Act : Uniting Church in Australia Property Trust (NSW) v Miller (2015) 91 NSWLR 752; [2015] NSWCA 320 at [102] per Leeming JA (Basten and Simpson JJA agreeing). As I have said, the primary judge did not properly identify the risk of harm.…
Hall v State of New South Wales [2014] NSWCA 154
Citation 11 (Para 81)

…The King (1936) 55 CLR 499; [1936] HCA 40 apply. He submitted that ordinary principles of appellate review apply: Hall v State of New South Wales [2014] NSWCA 154 at [28], [32].…
Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370
Citation 12 (Para 82)

…evidence, the conclusion reached by his Honour was erroneous, and this Court should substitute its own opinion: Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370 at [13]; Basha v Vocational Capacity Centre Pty Ltd [2009] NSWCA 409. He submitted that a finding of 33% was manifestly erroneous.…
Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151
Citation 13 (Para 35)

…gnificant, within the meaning of s 5B(1)(b). This “not particularly demanding” test was here met: Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 at [150]; Collins v Insurance Australia Ltd (2022) 109 NSWLR 240; [2022] NSWCA 135 at [37] quoting Rail Corporation New South Wales v Donald; Staff Innov…
Zanner v Zanner [2010] NSWCA 343
Citation 14 (Para 64)

…atently obvious and could have been avoided by the exercise of reasonable care on the plaintiff’s part”: Zanner v Zanner (2010) 79 NSWLR 702; [2010] NSWCA 343 at [89]. In the present case the risk was patently obvious to the appellant whether the risk originally formulated by the appellant (“hitting” his head) is a…
Basha v Vocational Capacity Centre Pty Ltd [2009] NSWCA 409
Citation 15 (Para 82)

…is Court should substitute its own opinion: Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370 at [13]; Basha v Vocational Capacity Centre Pty Ltd [2009] NSWCA 409. He submitted that a finding of 33% was manifestly erroneous.…
Wynn Tresidder Management v Barkho [2009] NSWCA 149
Citation 16 (Para 83)

…and requires a demonstration the “conclusion reached by the primary judge was manifestly erroneous”: Wynn Tresidder Management v Barkho [2009] NSWCA 149; (2009) Aust Torts Reports 82-016 at [110] quoting Crystal Wall Pty Ltd v Pham [2005] NSWCA 449 at [49] and Dell v Dalton (1991) 23 NSWLR 528 at 533. It submitted…
Kuru v State of New South Wales [2008] HCA 26
Citation 17 (Para 67)

…ailed to prove breach of duty or causation, I will briefly address the remaining grounds of appeal: Kuru v State of New South Wales (2008) 236 CLR 1; [2008] HCA 26 at [12]; Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49 at [8].…
Crystal Wall Pty Ltd v Pham [2005] NSWCA 449
Citation 18 (Para 83)

…us”: Wynn Tresidder Management v Barkho [2009] NSWCA 149; (2009) Aust Torts Reports 82-016 at [110] quoting Crystal Wall Pty Ltd v Pham [2005] NSWCA 449 at [49] and Dell v Dalton (1991) 23 NSWLR 528 at 533. It submitted that no such intervention is warranted in this case.…
Francis v Lewis [2003] NSWCA 152
Citation 19 (Para 35)

…eseeable within the meaning of s 5B(1)(a). The lack of evidence of prior serious incidents, although relevant, was not determinative: Francis v Lewis [2003] NSWCA 152 at [57]. The evidence was that Mr Rankin, the school principal, had previously knocked his head. It may also be accepted, as the appellant submitted,…
Joslyn v Berryman [2003] HCA 34
Citation 20 (Para 61)

…Appellate courts must exercise restraint when interfering with an apportionment assessment: Joslyn v Berryman (2003) 214 CLR 552; [2003] HCA 34 at [157] (Hayne J); Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 493-494.…
Taber v NSW Land and Housing Corporation [2001] NSWCA 182
Citation 21 (Para 47)

…This reflects the general law: Jones v Bartlett (2000) 205 CLR 166; [2000] HCA 56 at [19] (Gleeson CJ); Taber v NSW Land and Housing Corporation [2001] NSWCA 182.…
Jones v Bartlett [2000] HCA 56
Citation 22 (Para 47)

…ions to avoid similar risks of harm for which the person may be responsible”. This reflects the general law: Jones v Bartlett (2000) 205 CLR 166; [2000] HCA 56 at [19] (Gleeson CJ); Taber v NSW Land and Housing Corporation [2001] NSWCA 182.…
Singer v Berghouse [1994] HCA 40
Citation 23 (Para 85)

…s 16 is an evaluative decision of the kind described in Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17 and Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40. The authorities, pointing either way, are gathered in Hall by Leeming JA at [31]-[32], in Berkeley Challenge by Basten JA at [13], in White v Reddin…
Dell v Dalton [1991] NSWCA 76
Citation 24 (Para 83)

…09] NSWCA 149; (2009) Aust Torts Reports 82-016 at [110] quoting Crystal Wall Pty Ltd v Pham [2005] NSWCA 449 at [49] and Dell v Dalton (1991) 23 NSWLR 528 at 533. It submitted that no such intervention is warranted in this case.…
Norbis v Norbis [1986] HCA 17
Citation 25 (Para 85)

…ren v Coombes (1979) 142 CLR 531; [1979] HCA 9 or whether s 16 is an evaluative decision of the kind described in Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17 and Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40. The authorities, pointing either way, are gathered in Hall by Leeming JA at [31]-[32], in B…
Podbrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34
Citation 26 (Para 61)

…th an apportionment assessment: Joslyn v Berryman (2003) 214 CLR 552; [2003] HCA 34 at [157] (Hayne J); Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 493-494.…
Warren v Coombes [1979] HCA 9
Citation 27 (Para 85)

…ard of review for a determination under s 16 of the Civil Liability Act is the correctness standard described in Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 or whether s 16 is an evaluative decision of the kind described in Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17 and Singer v Berghouse (1994) 18…
House v R [1936] HCA 40
Citation 28 (Para 81)

…the assessment of a most extreme case does not involve a “discretionary exercise” such that the principles in House v The King (1936) 55 CLR 499; [1936] HCA 40 apply. He submitted that ordinary principles of appellate review apply: Hall v State of New South Wales [2014] NSWCA 154 at [28], [32].…
House v The King 63 WN 176
Citation 29 (Para 81)

…The appellant submitted that the assessment of a most extreme case does not involve a “discretionary exercise” such that the principles in House v The King (1936) 55 CLR 499; [1936] HCA 40 apply. He submitted that ordinary principles of appellate review apply: Hall v State of New South Wales [2014] NSWCA 154 at [28], [32]…

Legislation Cited

Civil Liability Act 2002 (TAS) 16, 5B, 5C, 5D, 5F, 5G, 5H
8 mentions (from Para 9)
Workers Compensation Act 1987 (NSW) 151H, 151Z
3 mentions (from Para 12)

Medium Neutral Citation:	Finniss v State of New South Wales [2023] NSWCA 292
Hearing dates:	9 November 2023
Date of orders:	8 December 2023
Decision date:	08 December 2023
Before:	Payne JA at [1]; Stern JA at [98]; Basten AJA at [99]
Decision:	(1) Appeal dismissed; (2) Appellant to pay the respondent’s costs.
Catchwords:	TORTS – negligence – occupier’s liability – school cleaner injured by striking head on a storeroom doorframe – storeroom contained cleaning products and other items – whether occupier was negligent – whether relocating entire contents of storeroom was a reasonable precaution – whether burden of taking precaution was overly onerous – where burden included burden of taking similar precautions – cleaner’s contributory negligence – where risk of harm was patently obvious to person in cleaner’s position – apportionment of liability between occupier and cleaner’s employer – assessment of damages for non-economic loss COSTS – party/party costs – costs of appeal – where appellant succeeded on several grounds – where respondent wholly successful on notice of contention – where respondent did not lead primary judge into error
Legislation Cited:	Civil Liability Act 2002 (NSW) ss 5B, 5C, 5D, 5F, 5G, 5H and 16 Workers Compensation Act 1987 (NSW) ss 151H and 151Z
Cases Cited:	ALDIFoods Pty Ltd v Young [2016] NSWCA 109; (2016) Aust Torts Reports 82-272 Basha v Vocational Capacity Centre Pty Ltd [2009] NSWCA 409 Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370 Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49 Chen by her tutor Huang v Kmart Australia Ltd [2023] NSWCA 96 Collins v Insurance Australia Ltd (2022) 109 NSWLR 240; [2022] NSWCA 135 Crystal Wall Pty Ltd v Pham [2005] NSWCA 449 Dell v Dalton (1991) 23 NSWLR 528 Francis v Lewis [2003] NSWCA 152 Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 Hall v State of New South Wales [2014] NSWCA 154 House v The King (1936) 55 CLR 499; [1936] HCA 40 Jones v Bartlett (2000) 205 CLR 166; [2000] HCA 56 Joslyn v Berryman (2003) 214 CLR 552; [2003] HCA 34 Kuruv State of New South Wales (2008) 236 CLR 1; [2008] HCA 26 Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 Rail Corporation New South Wales v Donald; Staff Innovations Pty Ltd t/as Bamford Family Trust [2018] NSWCA 82 Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 Taber v NSW Land and Housing Corporation [2001] NSWCA 182 Uniting Church in Australia Property Trust (NSW) v Miller (2015) 91 NSWLR 752; [2015] NSWCA 320 Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 White v Redding (2019) 99 NSWLR 605; [2019] NSWCA 152 Wynn Tresidder Management v Barkho [2009] NSWCA 149; (2009) Aust Torts Reports 82-016 Zanner v Zanner (2010) 79…