JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE FULL COURT (WA)
CITATION: GONDOLINE PTY LTD -v- HANSFORD [2002] WASCA 214
CORAM: MURRAY J
WHEELER J
MILLER J
HEARD: 13 JUNE 2002
DELIVERED : 14 AUGUST 2002
FILE NO/S: FUL 115 of 2001
BETWEEN: GONDOLINE PTY LTD
Appellant (Defendant)
AND
JANICE ROSE HANSFORD
Respondent (Plaintiff)
Catchwords:
Negligence - Occupier's liability - Protruding paving stone on pathway - Whether breach of duty of care on the part of occupier - Turns on own facts
Legislation:
Nil
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Appellant (Defendant) : Ms B A Mangan
Respondent (Plaintiff) : Mr B L Nugawela
Solicitors:
Appellant (Defendant) : Phillips Fox
Respondent (Plaintiff) : Friedman Lurie Singh
Case(s) referred to in judgment(s):
Abalos v Australian Postal Commission (1990) 171 CLR 167
Australian Capital Territory v Badcock [2000] 169 ALR 585
Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 180 ALR 145
Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 75 ALJR 992
Earthline Constructions; Gray v Motor Accident Commission (1998) 73 ALJR 45
Littler v Liverpool Corporation (1968) 2 All ER 343
McLachlan v Purchas & Ors, unreported; FCt SCt of WA; Library No 980749; 21 December 1998
Roman Catholic Archbishop of Perth v Hinchliffe, unreported; FCt SCt of WA; Library No 980520; 14 September 1998
Stannus v Graham (1994) Aust Torts Rep 81‑293
State Rail Authority of NSW v Earthline Constructions Pty Ltd (1999) 73 ALJR 306
State Rail Authority of NSW v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306
Case(s) also cited:
Australian Safeway Stores v Zaluzna (1987) 162 CLR 479
Grant v Australian Knitting Mills Ltd [1936] AC 85
Griffiths v Kerkemeyer (1977) 15 ALR 387
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18
Hodges v Frost (1984) 53 ALR 373
Maiward v Doyle [1983] WAR 210
Newman v Nugent (1992) 12 WAR 119
Romeo v Conservation Commissioner (NT) 192 CLR 431
MURRAY J: I have read in draft the reasons for judgment to be published by Miller J. I am in general agreement with them but wish to add some observations of my own.
As Miller J has pointed out, the first two grounds of appeal challenge the finding by Viol DCJ as to the cause of the accident suffered by the respondent. As Viol J noted, the respondent pleaded that while she was walking down a path "her foot struck a protruding paver on the path causing her to fall to the ground and sustain injuries." No further fact is pleaded about the alleged protruding paver, but in the particulars of negligence there is a reference to the failure to ensure "that grass tufts emerging between pavers would not displace them and cause them to protrude in a way that might cause a pedestrian to trip". In short, the pleading appears to refer…
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- Case
- [2002] WASCA 214
- Decision Date
CaseChat Overview and Summary
The appeal raised several legal issues, including whether the appellant owed the respondent a duty of care, whether there was a breach of that duty, and whether the raised paving stone constituted a hazard or trap that would give rise to a foreseeable risk of harm. The central issue was whether the uneven paving stone was a hazard that the respondent should have reasonably anticipated and taken steps to avoid. The court had to consider the standards expected of a pathway in a rural location, the foreseeability of the risk, and whether the respondent should have exercised sufficient care for her own safety.
The court found that the raised paving stone, which was between half an inch and one inch above the surrounding pavers, did not constitute a hazard or trap. The court reasoned that unevenness in paving stones of up to an inch is an expected characteristic in a pathway, particularly in a rural setting. The court referenced Littler v Liverpool Corporation, where it was held that such unevenness might cause a pedestrian to stumble but is an inherent characteristic of a pathway. The court distinguished this case from Australian Capital Territory v Badcock, where the authority had failed to address a known hazard, leading to a different outcome. The court concluded that the respondent should have expected variations in the height of the paving stones and could have observed the uneven stone by exercising reasonable care.
The appeal was dismissed, and the decision of the primary judge was upheld. The court found that the appellant had not breached any duty of care owed to the respondent, and the raised paving stone did not pose a foreseeable risk of harm. The court emphasised that the respondent should have exercised sufficient care for her own safety, given the nature of the pathway and the expected unevenness in a rural location.
Orders
Orders of the court
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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
Established by: WHEELER J
Although the learned trial Judge found there to be a paver raised between one‑half and one inch from the surrounding pavers, I am of the view that there was no foreseeable risk of harm to persons using the pathway taking reasonable care for their own safety. The paver was not, in my view, a hazard or trap. The respondent could have been expected to have exercised sufficient care in looking where she was going on the pathway to have observed any uneven paving stone. I am of the opinion that what Cumming‑Bruce J said in Littler v Liverpool Corporation (1968) 2 All ER 343 at 345, is entirely applicable to this case. That is, uneven surfaces or differences in level between paving stones of up to an inch might cause a pedestrian temporarily off‑balance to trip and stumble, but such is a characteristic that must be accepted on a pathway. A pathway is "not to be criticised by the standards of a bowling green". Here the pathway was, to all intents and purposes, well laid out and although on a gradient, relatively even. Natural subsidences in the land and rainfall would be likely to cause some unevenness in the paving stones. A raised stone of between half an inch and an inch would not, in my view, be a hazard that a pedestrian would not expect to encounter, particularly in a country location such as that at the Farm. Although the pathway was laid out to enable people to move from the carpark to the shops at the Farm, it was nevertheless in a rural location. In those circumstances, the situation was, in my view, to be differentiated from a city mall or pedestrian walkway such as that which existed in Canberra in Australian Capital Territory v Badcock. In any event, there are important distinctions to be drawn between the present case and that of Australian Capital Territory v Badcock. In the latter, there were a number of pavers which had been raised above the level of others and the problem had been brought to the attention of the authority. They had done nothing about it, but on the findings of the Full Federal Court there was no good reason why the problem should not have been eradicated. Apart from the fact that it was a central city location, the knowledge by the relevant authority of the problem and its failure to fix it put the case into a different category. I accept what Einfeld J said in Australian Capital Territory v Badcock about pedestrians not being required to be permanently on the lookout for hazards on a step‑by‑step basis, but that was not required of the respondent in this case. All that was required of her was that she appreciate that a pathway at Lavender & Berry Farm could not be expected to be "of the standards of a bowling green". Rather, it was to be expected that there may well be a half inch variation in the height of the occasional paving stones. I would also refer to McLachlan v Purchas & Ors, unreported; FCt SCt of WA; Library No 980749; 21 December 1998 where (at 9), I said in relation to a case in which a person alighting from a vehicle had slipped on grass:"… The learned trial Judge was, in my view, correct in equating any risk to persons parking on wet and possibly slippery grass with an every day risk which members of the public avoid by taking care for their own safety, and adopting those words from the passage of Handley SA in Stannus v Graham, to which I have referred. It is the case that daily, in the metropolitan area of Perth, people park cars on grass surfaces. They may, from time to time, be wet surfaces and slippery. In the every day activities of life many people will step out of their motor vehicles onto a wet and sometimes slippery grass surface. That does not, however, constitute either a danger within the meaning of the Occupiers' Liability Act, nor a hazard within the meaning of the Occupational Safety & Health Act, nor, in my view, is it a foreseeable risk of injury against which a prudent employer should guard in relation to his employees. It is nothing more nor less than an every day experience. If it be categorised as risk at all, it is the very risk which citizens in the course of their daily activities are required themselves to guard against."