Flatman v Epps
[2006] VSCA 183
•8 September 2006
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 3732 of 2005
| ROBYN FLATMAN | |
| Appellant | |
| v. | |
| SHARYN EPPS | Respondent |
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JUDGES: | MAXWELL, P., NEAVE and REDLICH, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 3 July 2006 | |
DATE OF JUDGMENT: | 8 September 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSCA 183 | 1st Revision 8 September 2006 |
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PERSONAL INJURIES — Negligence — Contributory negligence — Plaintiff injured while helping her sister dismantle a garage— Whether judge erred in not finding contributory negligence — Adequacy of reasons — Whether plaintiff acted with reasonable prudence —Whether risk reasonably foreseeable — Causation — Onus on defendant to show that the reasonable steps the plaintiff should have taken would have averted injury — Onus not discharged —Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr D.E. Curtain, Q.C. with | Norris Coates Lawyers |
| For the Respondent | Mr T.J. Casey, Q.C. with Mr J.F. Goldberg | Secombs Solicitors |
MAXWELL, P.:
I have had the considerable advantage of reading in draft the reasons for judgment of Redlich, J.A. For the reasons given by his Honour, I too would dismiss the appeal.
NEAVE, J.A.:
I agree with Redlich, J.A., for the reasons he has stated, that the appeal should be dismissed.
REDLICH, J.A.:
The appellant and respondent are sisters. I shall refer to them by their first names. Sharyn suffered an injury to her knee when a garage frame which she was helping Robyn to dismantle in Robyn’s backyard collapsed. Sharyn sued Robyn for damages, claiming that Robyn was in breach of both her common law duty of care and her statutory duties as an occupier.[1] A judge of the County Court found Robyn to be in breach of those duties and rejected Robyn’s claim that Sharyn had failed to take care for her own safety. Sharyn was awarded general and special damages.
[1]See sections 14A, 14B and 14D, Wrongs Act 1958.
This appeal by Robyn is concerned only with the finding that there was no contributory negligence by Sharyn. Robyn contends that Sharyn’s damages should have been reduced by 50% for contributory negligence.
The grounds of appeal raise four issues. Did the judge –
(a)fail to give adequate reasons for rejecting Robyn’s allegation of contributory negligence?
(b)apply the wrong test for contributory negligence?
(c)fail to consider adequately Robyn’s case on contributory negligence?
(d)in finding that Sharyn was not guilty of contributory negligence, make a finding which was against the weight of the evidence?
The facts
In 1990, Sharyn bought a steel garage for her car. The garage was erected at her premises. The columns supporting the structure were embedded in concrete. Sharyn knew that its erection took one man a couple of hours but did not watch the work being done. Eventually Sharyn offered her garage to Robyn, who agreed to take it. Robyn’s son and her partner disassembled the garage and transported the pieces to Robyn’s home. Although Sharyn did not participate in its disassembly, Sharyn knew that nuts and bolts held the frame together.
The steel and timber skeleton of the garage was erected by Robyn’s son on an old concrete slab at her house, but the cladding was not put on. The columns of the frame were not cemented in. The steel and timber frame remained in that condition for about 18 months. One weekend Robyn decided to dismantle the skeleton, in order to re-erect it in a different position in her backyard. She did not have any plan for how to proceed, nor did she devise any method of work. Robyn began by chipping away at the slab of concrete on which the structure had been placed. With the assistance of another sister (Joan), Robyn undid a number of the bolts holding the lengths of timber to the roof trusses. They removed some of the nuts on the bolts with their hands; for others a “shifter” was required. They then commenced to remove the pieces of timber from the roof.
Whilst the garage was being dismantled in this way, Sharyn arrived to trim some shrubs. Having completed that task, Sharyn stayed watching her sisters work on the garage. Eventually, when Joan went into the house, Robyn asked Sharyn to help her. Together they finished the task of removing the roof timber from the roof trusses, and then went into the house for a cup of tea.
Sharyn was about to leave for home when Robyn asked her to assist in removing the steel door frame from the structure. The doorway was for individual access to the garage. The door itself had been removed but the frame was still bolted on, by two bolts at the top of the door frame. Robyn suggested that Sharyn stand inside the garage skeleton and undo the nuts and push the bolts through, while Robyn stood outside the garage holding the door frame.
Sharyn took an “A” frame aluminium ladder. Standing on either the first or second step, she pushed the first bolt through without difficulty. The second bolt seemed stuck. Robyn asked Sharyn if she wanted a hammer, and then handed her a hammer. Sharyn struck the bolt with the hammer. The door frame fell out and the entire skeleton of the garage frame collapsed. Sharyn was struck by the falling steel frame-work. She was knocked from the ladder and lay pinned under part of the frame-work. As a consequence, Sharyn suffered injuries including the injury to her knee.
A consulting engineer, Mr Waddell, gave evidence at the hearing. His evidence was that the dismantling could have been achieved safely had some bracing been used to create some triangular support for the structure. Four things were required in order for the frame to remain erect. They were:
(a)the friction between the longitudinal side wall beams and the columns to which they were affixed;
(b)the longitudinal timbers attached to the top of the roof trusses;
(c)the lower and middle longitudinal beams butting into the corresponding beams on the end wall; and
(d)the attachment of the frame of the personal access door to the longitudinal timbers.
According to Mr Waddell, by the time Sharyn went to remove the bolts, items (b) and (c) had been removed. The difficulty in removing the final bolt suggested that, at the time, that bolt may have been supporting the entire weight of the structure. Once the bolts were removed from the door frame and the frame came away, only the friction resulting from the bolting together of the longitudinal side
beams and columns was left to support the structure. This proved to be insufficient to keep it standing.
The decision appealed from
At trial, counsel for Robyn argued that neither sister was legally responsible, because the accident had occurred as a result of a system of work jointly undertaken by them. Sharyn had control because she used the hammer. His Honour rejected this analysis as “too artificial”. In holding that Robyn was negligent, his Honour said:
“…There was no system of work and therein is the nub of the breach of the duty the defendant owed to the plaintiff. The defendant went about removing pieces of the “structure” without any plan and without any inspection of the whole of it to determine what would be a safe method of disassembly. She simply started and proceeded as whim took her, not knowing what she was in fact going to do. The structure was heavy metal and its appearance was such that it was plain that if any of it fell, a person inside the structure was likely to be seriously hurt. The cause of the plaintiff’s injury was not the system of work, but its absence. The absence of any system was due to the defendant’s omission to inspect the structure and devise a safe system of disassembly. That omission led to the structure being unsafe by the time the defendant invited the plaintiff onto the premises, ie inside the structure. The defendant’s breach of duty consists of her issuing an invitation to the plaintiff to come into what was by then an unsafe premises, together with the request to do something of the effect of which the defendant had totally failed to inform herself.”
Robyn does not challenge the finding that she was negligent.
The judge also found that there was no contributory negligence on Sharyn’s part:
“During the trial I wondered whether the appropriate finding was that each of the sisters was equally negligent, however, having taken time to consider the matter at leisure, I have come to the view that there is no evidence of the [plaintiff] having deviated from the path of the reasonable person in her then circumstances. True it is that she was ignorant of the proper system of disassembling the structure and, accordingly, it may be said that she blindly put herself in danger when she answered her sister’s request. But the better view is that it was reasonable for her to assume that her sister would not expose her to danger and that her sister had done enough to see to it that her request would in fact not expose her sister to danger. In the end, I can see no contributory negligence.”
Whether incorrect test applied
It was for Robyn to show on the balance of probabilities that Sharyn ought reasonably to have foreseen that she might be exposing herself to risk of injury, and that she had not acted as a reasonable and prudent person would have acted.[2] Robyn contends that the judge misdirected himself by focusing upon whether it was reasonable for Sharyn to rely upon her sister’s judgment, instead of asking whether Sharyn had acted with reasonable prudence in the face of a reasonably foreseeable risk. I do not agree. His Honour’s discussion of contributory negligence is not suggestive of error. On the contrary, in finding that it was reasonable for Sharyn to assume that her sister would not expose her to danger, his Honour was addressing the key issue, i.e. whether Sharyn had exposed herself to a risk of injury which might reasonably have been foreseen and avoided.
[2]Commissioner for Railways v. Halley (1978) 20 A.L.R. 409 at 419 per Murphy, J.; Joslyn v. Berryman (2003) 214 C.L.R. 552 at [18] per McHugh, J.; Commissioner for Railways (Qld) v. Ruprecht (1979) 142 C.L.R. 563 at 570 per Mason, J.; Sungravure Pty Ltd v. Meani (1964) 110 C.L.R. 24 at 37; Bankstown Foundry Pty Ltd v. Braistina (1986) 160 C.L.R. 301 at 310.
Inadequacy of reasons
Robyn complains that the trial judge failed to provide any sufficient reasons for concluding that there was no contributory negligence. In particular, it is said, the judge failed to deal with the following submissions made on Robyn’s behalf.
Sharyn was aware of the circumstances in which the garage was originally constructed, then dismantled and reassembled at Robyn’s residence. Sharyn knew that the garage was originally erected by a qualified tradesperson. She was aware that the structure had to be bolted together and that the timber bolted to the garage was important to the structural integrity of the garage. Sharyn knew that it had not
been cemented into the ground when reassembled, and that it had been reassembled by an unqualified person, her son.
Sharyn gave no thought to the possibility that knocking out a jammed bolt in such circumstances might be dangerous. It was her act of hammering the bolt out which precipitated the collapse. The fact that Robyn held the door frame while Sharyn removed the bolts should have indicated to Sharyn that at least part of the structure would become unstable after the removal of the bolts by Sharyn. Sharyn was aware that the structure was heavy. She gave no thought to the fact that dismantling the garage might be dangerous even though she knew that bolts and timber had been removed.
For her part, Sharyn contends that the trial judge’s conclusion that Robyn had not devised a safe method of dismantling the structure led inevitably to the conclusion that there was no contributory negligence. She further submitted that, once the trial judge rejected the “joint undertaking” contention, no other findings were necessary to deal with the contention that Sharyn was guilty of contributory negligence. The latter contention cannot be sustained. The conclusion that Sharyn was responsible for the disassembly of the structure, and the rejection of the “joint undertaking” claim, left open factual issues relevant to contributory negligence.
The rationale for the judicial obligation to provide sufficient reasons need not be restated.[3] Where there is an absence of sufficient reasons, a justifiable sense of grievance is created in the losing party, particularly where no explanation is provided as to why the submissions made on their behalf were rejected.
[3]See Fletcher Constructions Australia Ltd v. Lines Macfarlane & Marshall Pty Ltd (No.2) (2002) 6 V.R. 1 at 30-34; Franklin v. Ubaldi Foods Pty Ltd [2005] VSCA 317; Ainger v. Coffs Harbour City Council [2005] N.S.W.C.A. 424 at [47].
The criticisms of the reasons have some justification. In particular, Sharyn did not suggest in evidence that she assumed “that her sister would not expose her to danger”, nor that she assumed “that her sister had done enough to see to it that her request would in fact not expose (Sharyn) to danger”. In short, there was no evidential basis for the judge’s conclusion that Sharyn turned her mind to the possibility of danger in helping her sister. Indeed, the evidence pointed to the opposite conclusion, namely that neither sister contemplated the possibility that the shed would collapse if the bolts were removed. In those circumstances, it would have been preferable had his Honour dealt with the substantial points raised by Robyn and provided an explanation of “the process of reasoning that led to his ultimate conclusion”.[4] The inference which can be drawn from what his Honour said is that he was satisfied that nothing had come to the respondent’s attention that should have alerted her to the risk of injury, or raised the possibility that Robyn could not be relied upon.
[4]Spence & Anor v. Gomez [2006] VSCA 48 at [66] per Nettle, J.A.; Hesse Blind Roller Co. Pty Ltd v. Hamitoski [2006] VSCA 121 at [20].
I need not further consider the adequacy of his Honour’s reasons, as such deficiencies as exist do not mean that the appeal should be allowed. This was conceded by Mr Curtain, Q.C. who with Mr Donald appeared for Robyn. It was submitted instead that the deficiencies in the reasons revealed that his Honour had not approached the issue of contributory negligence in the right manner and as a consequence this Court should determine for itself whether Sharyn had failed to take reasonable care for her own safety.
Assessment of whether Sharyn guilty of contributory negligence
Robyn’s primary submission is that the learned trial judge’s finding that Sharyn was not guilty of contributory negligence was against the weight of the evidence. But this is not an appeal from a jury verdict.[5] The duty of this Court is to decide the facts for itself, whilst recognising the advantages enjoyed by the judge who conducted the trial.[6]
[5]Calin v. Greater Union Organisation Pty Ltd (1991) 173 C.L.R. 33.
[6]Fox v. Percy (2003) 213 C.L.R. 118; Pledge v. Roads and Traffic Authority (2004) 78 A.L.J.R. 572 at 581-2 at [43]; CSR Ltd. v. Della Maddalena (2006) 224 ALR 1, (2006) 80 ALJR 458 at [14]-[23] per Kirby, J. with whom Gleeson, C.J. agreed; Victorian WorkCover Authority v. Carrier Air Conditioning Pty Ltd [2006] VSCA 63 at [12] per Ashley, J.A.
There was no dispute about any of the facts which bore upon the question of contributory negligence. Both sides have argued that the trial judge was in no better position to decide this particular question than this Court and that the issue of contributory negligence should not be viewed as peculiarly within the trial judge’s province.[7]
[7]Warren v. Coombes (1979) 142 C.L.R. 531 at 552 per Gibbs, A.C.J., Jacobs and Murphy, JJ.; Fox v. Percy supra at [87] per McHugh, J.; Ghunaim v. Bart [2004] N.S.W.C.A. 28 at [53].
At the same time, a decision on contributory negligence includes elements of degree and value judgment. That circumstance may make it more difficult to persuade an appellate court that there was error below.[8]
[8]Mobilio v. Baliotis [1998] 3 V.R. 833 at 836-837 per Brooking, J.A.; Victorian WorkCover Authority v. Carrier Air Conditioning Pty Ltd [2006] VSCA 63 at [12] per Ashley, J.A.
Robyn did not formulate a safe method of disassembling the framework before she commenced. It was that failure which meant that the structure was unsafe when Robyn asked Sharyn to take up a position inside it. There is no challenge to the trial judge’s conclusion that Robyn’s liability rested upon her failure to provide a safe system of work, although this did not mean that their respective positions were to be equated with those of employer and employee.[9]
[9]Hamilton v. Nuroof (W.A.) Pty Ltd (1956) 96 C.L.R. 18 at [25]; Bankstown Foundry Pty Ltd v. Braistina (1986) 160 C.L.R. 301 at 307-8.
Robyn contended that it was not reasonable for Sharyn to rely upon her sister, or to assume that her sister had employed a safe system of disassembling the structure. In contrast to the position of an employee in the workplace, it was submitted, it would be just and equitable to burden Sharyn with the breach of her duty to look out for her own safety.[10]
[10]See Liftronic Pty Ltd v. Unver (2001) 179 A.L.R. 321 at [60] per Gummow and Callinan, JJ.; and at [85]-[87] per Kirby, J.
A line must be drawn where mere thoughtlessness or inadvertence ceases and negligence begins.[11] Where that line ought be drawn is, however, far from clear. An
inadvertent or thoughtless act may be negligent precisely because it was done without thought for, or consideration of, the consequences.[12]
[11]Caswell v. Powell Duffryn Associated Collieries Ltd [1940] A.C. 152 at 176; John Summers & Sons Ltd v. Frost [1955] A.C. 740 at 777.
[12]Sungravure Pty Ltd v. Meani (1964) 110 C.L.R. 24; Commissioner of Railways v. Ruprecht (1979) 142 C.L.R. 563 at 570 per Mason, J.
Sharyn cannot avoid a finding of contributory negligence if she failed to ascertain facts about which a reasonable person in her position would have made inquiry. Robyn relies on his Honour’s observation that Sharyn was “ignorant of the proper system of disassembling the structure”, such that “it may be said that she blindly put herself into danger when she answered her sister’s request”. Those observations, it was said, demanded a positive finding of contributory negligence. Even if the level of control of each of the sisters was different, Sharyn was aware that Robyn was dismantling the structure, and that Robyn had no particular skills or experience for the task.
When Robyn asked Sharyn to help, neither recognised the unsafe condition of the structure. Robyn’s primary case at trial was that neither of them was negligent. As mentioned earlier, Sharyn now contends that, once the trial judge had rejected the “joint undertaking” argument, and found instead that Robyn was in control and had not devised a safe method of work, there could be no finding of contributory negligence. Sharyn argued that a finding of contributory negligence would impose a “standard of perfection” which could not be expected of a person taking reasonable care for their own safety in the circumstances.
The critical question related to the content of the term “reasonable care”. The answer defined the content of Sharyn’s duty of care.[13] Ultimately, his Honour found that Sharyn had not deviated from the path of a reasonable person in her circumstances. I agree with that conclusion.
[13]Jones v. Bartlett (2000) C.L.R. 166 per Gummow and Hayne, JJ. at [166]-[167].
In my view, Robyn has failed to demonstrate that Sharyn did not act with reasonable prudence in the face of a reasonably foreseeable risk. Robyn alone was in control of the disassembly of the structure. She alone knew which bolts had been removed. When Robyn asked for help, Sharyn was not aware of the extent to which the integrity of the structure had already been compromised. Robyn had not told Sharyn of the extent of the work already undertaken, nor did Robyn give Sharyn any warning that she might be in a situation of danger. There was nothing about the structure that should have alerted Sharyn to the existence of the risk. It was Robyn who suggested that a hammer be used to knock out the bolt. In those circumstances, it was not unreasonable for Sharyn to help Robyn in the manner requested, without making inquiries.
Whether reasonable steps alleged would have averted injury
The test of contributory negligence is an objective one[14]. A plaintiff cannot escape a finding of contributory negligence by pleading ignorance of facts that a reasonable person would have known or ascertained.[15]
[14]Joslyn v. Berryman (2003) 214 C.L.R. 552 at [32] per McHugh, J.
[15]Ibid, at [39]; Chandley v. Roberts [2005] VSCA 273 at [21] per Maxwell, P.
Sharyn argued that Robyn had failed to establish that if she had, in the exercise of reasonable care, taken the precautionary steps of inspecting the structure for herself or making an inquiry of her sister, she would have learnt something that would have resulted in the accident being averted. That is to say, it was argued that no causative link had been established between the alleged breach of Sharyn’s duty to take care for her own safety and the injury that she suffered.
Since we are here concerned with the causality of an omission – a hypothetical test is indispensable.[16] A hypothetical inquiry involves considering what would otherwise have happened had there been no omission. The question in a case such as this is whether the reasonable steps which Robyn alleges Sharyn should have taken would, on the balance of probabilities, have averted injury to the plaintiff.[17]
[16]JG Fleming, The Law of Torts (9th Ed. 1998) p.220.
[17]Secretary, Department of Natural Resources and Energy v. Harper (2000) 1 VR 133 at [58].
In Secretary, Department of Natural Resources and Energy v. Harper, Batt, J.A. referred to what was said by Kirby, J. in Romeo v. Conservation Commission (NT),[18] as follows:
“Where a breach of a relevant duty of care is shown, it is still necessary for a plaintiff to prove, on the balance of probabilities, that such breach caused or materially contributed to the damage. This means that the plaintiff must show that, if the defendant had fulfilled its duty, as defined, doing so would have resulted in the avoidance of the plaintiff’s damage and loss. Necessarily, the question is hypothetical. ... Sometimes a plaintiff has been asked directly what he or she would have done if the acts constituting fulfilment of the suggested duty had occurred. Normally, however, there is no direct evidence on the point and in any case the question is one for objective assessment, not subjective protestations after the event. In this case, the appellant was not asked. It was left as a question of fact for the tribunal of fact to decide whether the protective measures suggested would have been effective in preventing her loss and damage.”[19] (emphasis added)
[18](1998) 192 C.L.R. 431.
[19]At [134]. See also Qantas Airways v. Cameron (1996) 66 FCR 246 at 293.
As Professor Fleming explains, the use of the hypothetical (or counter-factual) is an application of the so-called “but for” test, which –
“...postulates that the defendant’s fault is a cause of the plaintiff’s harm if such harm would not have occurred without (but for) it. Thus a bather would not have drowned if a lifeguard had been present; the customer would not have fallen down the stairs if there had been a handrail; nor would he have suffered the brain haemorrhage if he had not received a blow on the forehead. Conversely, it is not a cause if the harm would have happened just the same, fault or no fault.”[20]
[20]Supra at 219-220. As to the “but for” test generally, see March v. E & M H Stramare Pty Ltd (1991) 171 C.L.R. 506.
Here, Robyn must establish that had Sharyn made an inquiry of her sister or inspected the structure, she would probably had realised that doing as Robyn requested would put her safety at risk. There was a fundamental disagreement between the parties as to what Robyn’s response would have been had she been asked by Sharyn whether the structure was safe. Robyn was not asked that question at trial. Her counsel argued that her likely response would have been that she did not know. Counsel for Sharyn argued that Robyn would undoubtedly have said that it was quite safe.
The contrast in those submissions illustrates the speculative nature of the inquiry. A visual examination of the upper part of the structure would have revealed, according to the expert evidence, that it was still, at least in parts, bolted to the side columns. I am not persuaded that a reasonable person in Sharyn’s position would have appreciated from a visual examination that she was placing her safety at risk or that any inquiry would have alerted Sharyn to the existence of any risk.
Robyn has failed to demonstrate that Sharyn was in breach of her duty to take reasonable care for her own safety or that, if there was any such breach, it was causative of the injuries she sustained.
The appeal should be dismissed.
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