Junkovic v Neindorf
[2004] SASC 325
•15 October 2004
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
JUNKOVIC v NEINDORF
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Nyland and The Honourable Justice Gray)
15 October 2004
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE - SPECIAL RELATIONSHIPS AND DUTIES - OCCUPIERS
Occupiers liability - standard of care owed by owner of domestic premises to public entering for the purposes of a 'garage sale' - duty of care owed by respondent to all entrants scope of duty - standard of care - duty of care breached - failure to take proper precautions - warning of risk - injury reasonably forseeable - contributory negligence - appeal allowed.
Wrongs Act 1936 (SA) Part 1B; Civil Liability Act 2004 (SA), referred to.
Ghantous v Hawkesbury City Council (2001) 206 CLR 512; Webb v South Australia (1982) 56 ALR 912; Australian Safeway Stores v Zalunza (1987) 162 CLR 479; Kocis v S E Dickens Pty Ltd [1998] 3 VR 408; Hackshaw v Shaw (1984) 155 CLR 614; Nagle v Rottnest Island Authority (1992) 177 CLR 423; Wyong Shire Council v Shirt (1980) 146 CLR 40; Romeo v Conservation Council of Northern Territory (1998) 192 CLR 431; Park v Anzil (1998) 192 CLR 431; Cutts v O'Neill (1998) 72 SASR 56; Brady v Girvan Bros Pty Ltd (1998) NSWLR 241, considered.
JUNKOVIC v NEINDORF
[2004] SASC 325Full Court: Doyle CJ, Nyland and Gray JJ
DOYLE CJ Gray J has set out in his reasons the facts on the basis of which the appeal is to be decided. He has summarised the reasons of the Magistrate and those of the Judge who reversed the Magistrate’s decision. He has set out the relevant provisions of the Civil Liability Act 1936 (SA) (formerly the Wrongs Act). There is no need for me to repeat these matters. I turn immediately to the issues for decision.
The issue for decision
The issue is whether Ms Neindorf is liable to Ms Junkovic for injury (a fractured bone in the foot) sustained when Ms Junkovic walked along a concrete driveway that led from the road frontage of Ms Neindorf’s house to a carport adjacent to the house. The driveway, carport and house were on land occupied by Ms Neindorf. It was an ordinary suburban house property. Ms Junkovic put her foot on an expansion joint between two slabs or sections of the drive, at a point at which one section was about 10 mm to 12 mm higher than the other. Ms Junkovic had not noticed the unevenness. It caused her to stumble and in doing so she suffered injury. Ms Junkovic had come to the house because Ms Neindorf had advertised a garage sale on the day in question.
The issue can be analysed in terms of whether Ms Neindorf owed Ms Junkovic a duty of care (or, more precisely, in terms of the scope of the duty) or in terms of whether Ms Neindorf was in breach of a duty of care that she owed to Ms Neindorf. In Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council [2001] HCA 29; (2001) 206 CLR 512, Hayne J at [309] referred to the significance that might lie in making that choice. I propose to consider the issue primarily in terms of the scope of the duty of care owed by Ms Neindorf to Ms Junkovic, but I will refer also to the issue of breach of duty.
I begin with some general propositions.
The first is that there is no single test or principle in Australian law for determining whether the relationship between two persons is such as to give rise to a duty of care, a breach of which is actionable in negligence: Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 at [48] – [53]; Brodie at [315] – [319]. The fact that it is foreseeable that a careless act or omission on the part of one person may cause physical harm to another does not necessarily mean that the former person is subject to a legal liability to compensate the latter if there is such carelessness, and harm results: Sullivan at [42]. It will usually be necessary to consider the circumstances more closely before deciding whether a duty of care arises.
Those general propositions are relevant because the liability of an occupier of premises for injury to a person who comes on those premises, the injury being attributable to the state or condition of the premises, is to be determined in accordance with the principles of the law of negligence: see s 20 of the Civil Liability Act and Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488.
The law relating to the liability of an occupier of premises for physical injury caused to an entrant on those premises by the state of the premises was well developed. But the relatively recent establishment of the general principles of the law of negligence in this area has meant that some issues that might have been closed in the past are now open.
The significant feature of the present case is that the danger arising from the unevenness of the driveway at the expansion joint is neither an unusual danger on residential properties or a concealed danger. It was there to be seen. Under the former law, that might well have meant that the plaintiff could not recover; see Fleming, The Law of Torts (9th Edition, LBC Information Services, 1988) p 503. That feature must now be considered under the general principles of the law of negligence, rather than under the former principles that distinguished between invitees and licensees.
A further feature of the case is that it raises an issue that has received a good deal of attention in recent times. The issue is the scope of the duty owed to a person, walking on a path or road, either on private land or on land subject to a public right of way (such as a roadway), who falls and is injured as a result of stumbling on an irregularity or unevenness in the surface on which the pedestrian is walking. In that connection I refer in particular to the decision of the High Court in Brodie, and to cases since then which are referred to by the Judge below: see Neindorf v Junkovic [2004] SASC 94; (2004) 88 SASR 162.
Ghantous was decided at the same time as Brodie. It was a claim by a pedestrian who tripped and fell while walking along a concrete footpath on an earthen verge of a public road. Over time the earthen verge had eroded. The earthen surface was some 50 mm below the level of the concrete strip on which Mrs Ghantous was walking. She moved to her right to avoid some oncoming pedestrians, and fell because her foot landed partly on the concrete strip and partly overhanging the lower earth surface: see Callinan J at [340]. There was no suggestion that the footpath was constructed negligently nor, as I understand the case, that the defendant negligently failed to maintain the footpath. The defendant was a council with statutory powers for the care, control and maintenance of the footpath and adjacent guttering.
In Ghantous a majority (Gaudron, McHugh, Gummow and Kirby JJ, Gleeson CJ, Hayne and Callinan JJ dissenting) held that the ordinary law of negligence should now be applied to decide the liability of a statutory authority in such a case. However, the duty of care that resulted from the application of those ordinary principles of negligence was expressed in terms that might seem relevant to the present case. In their joint judgment Gaudron, McHugh and Gummow JJ said at [163]:
“The formulation of the duty in terms which require that a road be safe not in all circumstances but for users exercising reasonable care for their own safety is even more important where, as in Ghantous, the plaintiff was a pedestrian. In general, such persons are more able to see and avoid imperfections in a road surface. It is the nature of walking in the outdoors that the ground may not be as even, flat or smooth as other surfaces. As Callinan J points out in his reasons in Ghantous, persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, tree roots or holes. Of course, some allowance must be made for inadvertence. Certain dangers may not readily be perceived because of inadequate lighting or the nature of the danger (as in Webb v The State of South Australia), or the surrounding area (as in Buckle, where the hole was concealed by grass). In such circumstances, there may be a foreseeable risk of harm even to persons taking reasonable care for their own safety. These hazards will include dangers in the nature of a "trap" or, as Jordan CJ put it, "of a kind calling for some protection or warning". In Romeo, Toohey and Gummow JJ noted in a different context that the care to be expected of members of the public is related to the obviousness of the danger. Kirby J pointed out in the same case that even an occupier of premises "is generally entitled to assume that most entrants will take reasonable care for their own safety". Each case will, of course, turn on its own facts.” [Footnotes omitted]
Their conclusion was that there was no breach of duty owed to Mrs Ghantous. That led to a conclusion that the footpath was not unsafe for a person taking ordinary care: at [166], and to the further conclusion that the Council did not breach its duty in the construction of the footpath or in failing to keep it level: at [167].
Kirby J was satisfied that the council owed Mrs Ghantous a duty to construct the footpath and to keep it reasonably safe for ordinary use: at [243]. He also found there was no breach of duty. It was not shown that the construction of the footpath was negligent, that its design was inappropriate, or that the council had failed to have a proper program of maintenance. Nor was there a history of previous accidents or complaints or deterioration: at [245] – [246].
The minority Justices agreed with the majority that even if general principles of negligence were to be applied, Mrs Ghantous had to show more than that the footpath was dangerous. Gleeson CJ said at [6], referring to developments in English law abolishing the common law immunity rule:
“It then became easier for a pedestrian who was injured by falling on a road or footpath to succeed in an action for damages resulting from failure on the part of the responsible authorities to maintain and repair the road or footpath. Even so, when general principles of negligence, unqualified by any rule of immunity, were applied, the courts insisted that an injured plaintiff had to show that the road or footpath was dangerous. That did not mean merely that it could possibly be an occasion of harm. The fact that there was unevenness of a kind which could result in a person stumbling or falling would not suffice. Not all footpaths are perfectly level. Many footpaths are unpaved. People are regularly required to walk on uneven surfaces on both public and private land.” [Footnote omitted]
Callinan J found that the footpath in question was not unsafe. He said at [355]:
“There was no concealment of the difference in height. It was plain to be seen. The world is not a level playing field. It is not unreasonable to expect that people will see in broad daylight what lies ahead of them in the ordinary course as they walk along. No special vigilance is required for this. The applicant herself admitted in cross-examination that she knew before the day of the accident that the earthen surface was lower than the concrete surface. The photographs tendered at the trial clearly show that there was a discernible difference between the kerb and the earthen verges. There was no negligence on the part of the respondent either in the construction of the footpath or in not keeping the concrete strip and verges level.”
Hayne J agreed with him at [339].
That approach to the scope of the duty of care has been applied in later cases, including cases involving the liability of an occupier of private property. The Judge below reviewed a number of those decisions. His conclusions appear from the following portions of his reasons: at [42] – [46]:
“I think the unevenness at the point where the plaintiff fell was not an uncommon or unexpected feature of a domestic property, and it was clearly visible and obvious. The plaintiff in her submissions emphasised the fact that the defendant was conducting a commercial venture on her property and that as part of that venture, persons of differing capacities and unfamiliar with the features of the driveway would come to the property. She also emphasised the fact that goods were placed in a position which might distract entrants to the property. …
The fact that an occupier is conducting a commercial enterprise and that an entrant might be distracted by the display of goods are related points. In my opinion, both are relevant to whether the particular risk is obvious and one likely to be encountered having regard to the use to which the property is being put and other relevant circumstances. In this case, the commercial activity was a one-off activity, and a low level activity in the sense that large numbers of people were not likely to enter the property. The property was at all times a domestic property. As I have said, unevenness of the type encountered by the plaintiff was a not unexpected feature of a domestic property and the unevenness was obvious. The presence of the goods to the right of the driveway might have been significant in terms of enlarging the scope of the duty of care had it been coupled with a commercial activity involving large numbers of people entering the property, but the latter was not the case.
I do not think the fact that the defendant was conducting a garage sale on the property and that goods were on display to the right of the driveway constitutes a sufficient reason to expand the scope of the duty of care so as to include within it the unevenness at the point where the plaintiff fell.
…
I do not think that the unevenness in the driveway at the point where the plaintiff stumbled was within the scope of the duty of care the defendant owed to the plaintiff. The Magistrate erred and the plaintiff’s claim should have been dismissed.”
The issue as argued is whether the Judge below was correct.
Gray J has concluded that the Judge was wrong.
Gray J treats the case as governed by considerations that differ from those applicable to the occupier of a supermarket (or commercial premises to which members of the public frequently go) and to a highway authority. His conclusion is influenced by the fact that Ms Neindorf invited people to the house (for her garage sale); knew or should have known of the danger; knew that visitors might be distracted by the goods on sale; could easily have lessened or avoided the risk of injury (by warnings, by using some kind of barrier), and could have displayed her wares elsewhere, keeping people away from the hazard.
Consideration of the issue
I consider that the duty of care undoubtedly owed by Ms Neindorf to Ms Junkovic did not extend to taking precautions to prevent injury attributable to the unevenness in the paving. I agree with the Judge below. I am influenced by the following considerations.
A purpose of the tort of negligence is to promote the taking of reasonable precautions to prevent injury to others, not to provide protection in all circumstances: Hayne J in Brodie at [315]. A duty of care should express what amounts to the taking of reasonable care in all the circumstances for one’s neighbour. The content of a duty of care must reflect, to some extent, community standards in terms of what is reasonably expected from those on whom the duty of care is imposed, and by those in whose favour it exists. To say this is not to suggest that a duty of care is imposed whenever that would be fair or reasonable: cf Sullivan at [53]. And, as I said earlier, foreseeability of the risk of injury is not always enough to lead to the conclusion that a duty of care is owed.
The formulation in Brodie of the scope of the duty of care owed by a statutory authority to a pedestrian cannot simply be transposed to a case involving an occupier of private land. In Brodie and in Ghantous the fact that the defendant was a statutory authority with statutory powers to construct, maintain and repair roads and footpaths was significant in the reasoning of the Court. So is the fact that Mrs Ghantous fell while walking on the footpath adjacent to a public road. The reasons of the Justices of the High Court make it plain that the decision in that case was influenced by these matters in particular, along with other circumstances of the case.
The decision in Brodie that the liability of the statutory authority in question was to be determined according to the ordinary principles of the law of negligence does not lead to a conclusion that the formulation of the duty of care in respect of a footpath is to be transposed to a case involving the duty of an occupier of private premises in respect of a pathway on private premises. Different considerations apply in each case, and a different outcome in each case would not reflect an unsatisfactory principle of law.
The occupier of private premises can exercise a greater degree of control over those premises than can a statutory authority responsible for public roads and footpaths. The occupier of private premises can exclude others at will. An occupier of private premises is likely to be able more easily to identify hazards on the property and to neutralise them. There are other differences.
Having said that, it cannot be doubted that Ms Neindorf owed Ms Junkovic a duty of care in respect of the safety of the premises. The issue in this case is the scope of that duty.
I now turn to the circumstances of the case.
Ms Neindorf was aware of the hazard.
The hazard could not easily be removed. To remove it would probably involve relaying part of the driveway. A painted strip might have reduced the danger, by calling attention to the presence of the hazard. Whether there were other measures available to Ms Neindorf that would, more or less permanently, reduce the hazard, is not clear.
I agree that it was foreseeable that a visitor might stumble or fall because of the unevenness, and might suffer injury. Although the unevenness was easily to be seen, it was foreseeable that a particular type of visitor, such as a young child or an elderly person with limited vision, might fail to see the hazard. It was equally foreseeable that in particular lighting conditions the hazard might not be seen.
These are matters that support the conclusion reached by Gray J.
But there is a significant factor pointing the other way. The unevenness in the paving was of a kind and of an extent that pedestrians on roads and footpaths, and entrants on private property, encounter daily. Tree roots, erosion, soil movement and other factors all play a part in producing this state of affairs. In many residences a visitor will encounter the precise kind of hazard that Ms Junkovic encountered. A visitor is equally likely to encounter undulations in paving due to tree roots, pavers that have lifted or dropped slightly, cracking in concrete paving, erosion at the edge of hard paving such as Mrs Ghantous encountered.
Such hazards (it cannot be denied that they are hazards) are encountered daily by people entering private property. They are usually easily seen. Sometimes they are not. When encountered they usually do not cause injury, although clearly enough sometimes they do. They are accepted as an every day aspect of life. This kind of unevenness in paving and paths is a normal hazard of daily life.
I consider that the law of negligence would depart from the concept of fault according to everyday standards, and from the concept of taking reasonable care for one’s neighbours, if it imposed a duty to protect entrants on private property against such a hazard.
It needs to be borne in mind that if a duty of care is imposed in respect of such a hazard, it applies to each and every hazard on those parts of private property where visitors can reasonably be anticipated. Removing or neutralising all such hazards could be a significant burden on the occupier of a property. It would be an ongoing task.
It is this factor that makes me incline against finding that Ms Neindorf owed a duty of care to Ms Junkovic in respect of the hazard.
That does not dispose of the case. There are some features, identified by Gray J, that might lead to the conclusion that in this particular case a duty of care was owed.
Ms Neindorf was conducting a garage sale on her property. I assume that she was hoping to profit from it. She could have displayed her goods on another part of the property, and might have been able to keep entrants away from the relevant part of the driveway. She could have taken temporary measures, while the garage sale was in progress, to keep entrants away from that part of the driveway.
I am not persuaded that these considerations lead to a different conclusion. A garage sale is a normal and common use of residential premises. Conducting the garage sale did not change the nature of the hazard. It remained easily seen. There was a risk that someone looking at items displayed might be distracted. But that is not a new feature of the situation. Any person entering Ms Neindorf’s property, at any time, might for all sorts of reasons not look where he or she was going. I do not regard the display of goods for sale as such an obvious source of distraction, or as so increasing the risk of injury attributable to the hazard, as to lead to the conclusion that a duty of care should be imposed. It is true the garage sale increased (that day) the number of people likely to enter the property. But viewed more broadly the garage sale made a trivial difference to the number of entrants to the property. I am not satisfied that displaying the goods elsewhere (the front yard was a small one) would have made any significant difference to the degree of risk. The fact that the hazard was self-evident is, to my mind, an answer to the argument that easily available precautions, such as putting an obstacle over the expansion joint, should have been taken.
For those reasons the particular circumstances surrounding the garage sale do not warrant a conclusion that Ms Neindorf owed a duty of care to Ms Junkovic in respect of the hazard on the day in question.
I add that there is no suggestion in this case that the driveway was laid incorrectly, that the particular hazard had caused injury in the past, or that the hazard was greater than a slight unevenness of its type would usually be.
For all those reasons I conclude that Ms Neindorf did not owe a duty of care to Ms Junkovic requiring her to take precautions to prevent the unevenness in the paving causing injury to Ms Junkovic.
If the case is to be analysed in terms of breach of duty, I would reach the same conclusion. The approach taken by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 requires one to consider the response of a reasonable person to the risk in question. That requires consideration of the magnitude of the risk, the degree of the probability of its occurrence and the difficulty of taking alleviating action. I consider that the magnitude of the risk was low, and the degree of probability of its occurrence was low, although I recognise that temporary alleviating action could have been taken without any great difficulty. But Mason J concluded by saying that the ultimate question was the standard of response to be ascribed to the reasonable person in the defendant’s position. At that level the court is entitled to, and should, bring into play the everyday nature of the hazard. For those reasons I would reach the same conclusion if the matter were analysed in terms of breach of duty.
For those reasons I would dismiss the appeal.
I agree with Gray J that if the appeal were to be allowed, it would be appropriate to reduce Ms Junkovic’s damages on account of her contributory negligence. She was careless in failing to look where she was walking. Had she looked she would have seen the unevenness. It is no answer to say that she was looking at the items displayed. In the exercise of reasonable care for her own safety, she should have looked where she was walking, notwithstanding the presence of the display of goods. I regard a reduction of 30% as rather high, but it is difficult to be precise in these matters. I would not differ from the Judge below, or from Gray J in that respect.
NYLAND J: I agree with the reasons of Gray J. I agree that the appeal should be allowed and judgment entered in favour of the appellant. I also agree that the award in favour of the appellant be reduced by 30% to allow for contributory negligence.
GRAY J:
This is an appeal against a decision of a judge of this court allowing an appeal from a magistrate.
On 26 November 2003 the trial magistrate concluded that Sandra Neindorf, the defendant and respondent, acted negligently and caused injuries sustained by Marta Junkovic, the plaintiff and appellant, when she attended Ms Neindorf’s premises for the purpose of a garage sale. Judgment was entered in favour of Ms Junkovic in the sum of $24,464.00. On 30 March 2004 a learned judge of this court allowed an appeal by Ms Neindorf and set aside the judgment.
At issue in this appeal is the standard of care owed by an owner of domestic premises to members of the public entering the premises for the purpose of a garage sale. Whether Ms Junkovic failed to take reasonable care for her own safety was also in issue. In addition, by way of a notice of alternative contention, Ms Neindorf invited the court to consider the correctness of certain findings of fact.
Facts
On 3 February 2000 Ms Neindorf placed an advertisement in The Trading Post advertising a garage sale to be conducted at her suburban domestic premises on the following weekend, 5-6 February 2000. The sale was to commence at 8.30am. The advertisement provided:
Moving sale, Saturday and Sunday 5th and 6th February 8.30am to 6pm, household effects etc, [address of premises]
The term ‘garage sale’ is simply a reference to the sale of items from a person’s home. Other states in Australia use other terminology to describe this activity. Of relevance is the fact that garage sales have become very popular in suburban Adelaide. The daily press, in particular the weekend press and other public broadsheets regularly advertise garage sales. It is not possible to drive through suburban Adelaide on a weekend without being confronted by placards on street corners and outside homes advertising garage sales. It has become a popular way for people to dispose of unwanted goods and perhaps engage in more serious merchandising.
At about 8.40am on 5 February 2000 Ms Junkovic, a 57 year old woman, attended Ms Neindorf’s property for the purpose of the sale. The weather was clear and sunny. While walking along the left side of the driveway within the property, Ms Junkovic’s attention was drawn to garden goods displayed on the right side of the driveway, probably at or under a carport. She was not looking were she was walking and did not notice the uneven surface. She stepped with her right foot over an expansion of the joint between two concrete slabs where one side was higher than the other. The difference in height caused unevenness. The height differential between the two concrete slabs was approximately 10 or 12 millimetres. Ms Junkovic rolled her foot as she placed it on the expansion joint. She stumbled and touched the ground with her hand but did not fall. Her shoe did not come off. She felt a crack and immediate pain in her foot.
Ms Junkovic drove herself to a nearby hospital where she received treatment. A diagnosis was made of a fracture to the base of the fifth metatarsal of the right foot. Her foot was placed in plaster. She experienced pain in her foot. She underwent physiotherapy treatment and was prescribed orthotics. She required assistance with personal hygiene, household chores and the preparation of meals from her family for a number of months. Her condition eventually improved and at the time of trial she had regained almost all of her prior independence.
Magistrates Court Proceedings
In her statement of claim, Ms Junkovic claimed that Ms Neindorf was negligent in that she failed to:
-provide a walking surface which was free of obstruction in an area which she knew or ought to have known the public would access;
-maintain the walking surface in a manner which provided safe and uninhibited access;
-carry out repairs of broken and uneven paving when she knew or ought to have known that the damage posed a risk of injury;
-warn the public of the potential risk;
-take steps to barricade the damaged area of paving so as to prevent injury.
Ms Neindorf denied that she acted negligently. She further pleaded that if Ms Junkovic did fall, she did so as a result of her own negligence, either totally or at least in part.
At trial Ms Neindorf’s daughter gave evidence relating to the display of goods:
Q. What sort of goods were they.
A. At the sale.
Q. Just in that area, the carport.
A. Some toys, behind me there was a table with nick nacks on it, there was a lazy boy chair and pretty much on that side.
Q. When you say behind you, there was a table of goods was the table of goods inside the carport.
A. Yes.
…
Q. There were goods set up along the border of the carport and you were positioned just in front of them, people walked behind you to look at the goods.
A. No next to, yes behind me.
Q. The table what sort of table was it.
A. Trestle table.
Q. Approximately hip height.
A. Yes.
Q. Were there also goods on the ground under the trestle or around the trestle table.
A. No there wasn’t much, probably a few buckets with things in them and the lazyboy but most of them were on the tables.
Ms Neindorf gave evidence in relation to the placement of goods that morning:
Q. As best you can recount what can you recall happening during the course of the morning after the sale had commenced at 8 o’clock.
A. I was still bringing things out, even at 8.30 still bringing things out, there had been a few people but I left my mum and my daughter out the front to handle all of that while I went out the back and wasl pulling things from out the shed.
Q. … As best you can recall by reference to that plan can you recall where it was that your daughter had set up for the purposes of the sale.
A. Down the side of the carport looking at it on the right hand side in the carport.
Ms Junkovic said that she was attracted to the display of goods on Ms Neindorf’s premises and traversed Ms Neindorf’s driveway with a view to reaching the goods:
Q. You were walking up the left hand side of the driveway and something caught your eye in terms of what was being sold on the right hand side of the driveway, right next to the edge of the carport.
A. Yes.
Q. You decided to walk across and have a look at the stuff.
A. Yes.
Q. On your way across your foot caught the edge of this pavement.
A. It didn’t caught the edge of the paving.
Q. It went over the edge, rolled over the edge.
A. Yes.
The magistrate concluded that Ms Neindorf owed a duty of care to Ms Junkovic. He found that the duty of care was heightened during the period of the garage sale. He found that Ms Neindorf was aware of the unevenness in the concrete slabs. He concluded that Ms Neindorf acted in breach of her duty of care by failing to take precautions such as painting a line indicating the unevenness of the slabs or otherwise warning Ms Junkovic of the hazard:
I agree with [the plaintiff’s] counsels submissions that [the defendant] should have known that the premises to which visitors had been invited to attend the garage sale would be unfamiliar to such persons and further that as a result of where the goods were set out for display that visitors would be distracted by the goods placed in that area in the vicinity of where there was a hazard, namely an unevenness in the driveway. [The defendant] without doubt would have been aware of the unevenness in the concrete slabs as a result of having lived there for some years.
The duty of care I agree would be higher during the period of the garage sale because of the distraction caused by the good to which people’s attention would be drawn whilst they were walking up the driveway.
In my view it was reasonably foreseeable that the unevenness in the path posed a risk to the attendees at the garage sale. To minimize that risk certain precautions could have been taken, such as a strip of paint along the unevenness of the slabs might have drawn attention to the unevenness. Other steps might have been taken at very little expense to [the defendant] either to warn people such as [the plaintiff] of the hazard or other steps taken to eliminate the hazard, for example by placing the goods on table placed over the unevenness caused by the cement. The cost therefore of reducing the risk of injury was low.
The magistrate concluded that Ms Neindorf’s breach of duty caused the injuries sustained by Ms Junkovic.
The magistrate reached the following conclusion about contribution on the part of Ms Junkovic:
I find that the [plaintiff] was not guilty of contributory negligence, as her attention would have been distracted by the placing of the goods on sale, to the right of where the hazard was, thereby removing her attention from where she was placing her feet at the time. The situation may well have been different were it not for the items placed on display.
On Appeal
The Judge’s Reasoning
As earlier observed a learned judge of this court allowed an appeal brought by Ms Neindorf against the whole of the judgment of the magistrate. The judge concluded that although Ms Neindorf owed a duty of care to Ms Junkovic as an entrant to Ms Neindorf’s premises, the scope of the duty was not such as to give rise to a finding of negligence. The judge considered that the scope of the duty of care did not extend so far as to include the need to guard against the unevenness of the driveway at the point where Ms Junkovic fell and injured herself. The judge reasoned that the duty of care was a duty to exercise reasonable care to eliminate reasonably foreseeable risks of harm to a pedestrian exercising reasonable care for her own safety, bearing in mind any particular advantages enjoyed by the pedestrian and making some allowance for inadvertence on the part of the pedestrian.
In reaching his decision, the judge considered that the principles established by the High Court in Ghantous v Hawkesbury City Council[1] were not confined to the condition of public footpaths and roadways. It was said that uneven surfaces were as common on domestic premises as they were on public footpaths and roadways:
I do not think one can confine the principles in Ghantous to the condition of footpaths and roadways. The fact that a public authority is involved is a relevant consideration in determining the scope of the duty of care, but it is not decisive of that question …. As noted by Heydon JA in Richmond Valley Council v Standing … other features of a public authority may be relevant to the question of breach, rather than the scope of the duty. Uneven surfaces are as common on domestic properties as they are on roadways and footpaths. They are no less obvious, nor is it less well known that they will be encountered.
[1] (2001) 206 CLR 512
The judge further observed that the duty of care owed by the occupier of a domestic property did not extend to include risks which were obvious and well known and which, in all the circumstances, an entrant may reasonably be expected to notice or avoid.
In view of Ghantous and the cases which have followed it, I think it can be said that with respect to the condition of a roadway or footpath, the duty of care is a duty to exercise reasonable care to eliminate reasonably foreseeable risks of harm to a pedestrian exercising reasonable care for his or her own safety bearing in mind any particular advantages enjoyed by the pedestrian and making some allowance for inadvertence on the part of the pedestrian. [The defendant] submitted that the principle formulated in these terms was also the principle to be applied in the case of an occupier of private property, and that such an occupier does not owe a duty of care in relation to what is commonplace and obvious or there to be seen and avoided.
…
[The plaintiff] also submitted that the principles in Ghantous should be confined to cases involving the condition of roadways and footpaths because in those cases public authorities are involved, and public authorities often have large areas to administer and limited, and even scarce, resources with which to do so.
…
In my opinion, the duty of care of the occupier of a domestic property in relation to the static condition of the property does not extend to include risks which are obvious and which it is well known are likely to be encountered and which, in all the circumstances, an entrant may reasonably be expected in all the circumstances to notice and avoid. It is important to note that all the circumstances of the case must be considered, including matters such as the location of the property and the activities being carried out thereon at the time of the accident, particularly any activities which might distract an entrant.
The judge concluded that the unevenness in the driveway at the point where Ms Junkovic fell was not within the scope of the duty of care that was owed.
The judge considered that not all of the observations in Webb v South Australia[2] survived the High Court’s decision in Ghantous.
[The plaintiff] referred to two decisions which it said supported the proposition that the duty of care extended to all reasonably foreseeable risks no matter how unlikely it was that the risk would eventuate providing the risk was not far-fetched or fanciful. In Webb v South Australia … a pedestrian suffered an injury when he stepped into a gap between a permanent kerb and a false kerb on a road. The relevant authority was held liable by a majority (Mason, Brennan and Deane JJ) even though they said the false kerb was obvious, and a pedestrian could avoid the possibility of injury by taking due care. Perhaps not all of the observations of the majority in Webb v South Australia (supra) survive the decision in Ghantous. I note that in the joint reasons in Ghantous, Webb v South Australia is referred to without disapproval as a case where the nature of the danger was such that it may not readily be perceived.
[2] (1982) 56 ALR 912
When assessing the scope of the duty owed, the judge observed that the height differential at the point where Ms Junkovic fell, approximately 10-12 millimetres, was not unusual and was clearly visible and obvious.
The judge noted that where an occupier was conducting a commercial enterprise an entrant may be distracted by the display of goods and, as a result, not be as aware of hazards than would otherwise be the case. The judge concluded in the particular circumstances that:
[The plaintiff] was looking at the goods to the right of the driveway at the time she stumbled. [The plaintiff] was not looking at the driveway.
Notwithstanding that this observation was described by the judge as relevant, he concluded that the commercial activity was a ‘one off activity’ and ‘low level’ in the sense that large numbers of people were not likely to enter the property.
The judge observed that the presence of goods to the side of the driveway and under the carport may have enlarged the scope of the duty of care if it had been part of a commercial activity involving large numbers of people entering the property:
The fact that an occupier is conducting a commercial enterprise and that an entrant might be distracted by the display of goods are related points. In my opinion, both are relevant to whether the particular risk is obvious and one likely to be encountered having regard to the use to which the property is being put and other relevant circumstances. In this case, the commercial activity was a one-off activity, and a low level activity in the sense that large numbers of people were not likely to enter the property. … The presence of the goods to the right of the driveway might have been significant in terms of enlarging the scope of the duty of care had it been coupled with a commercial activity involving large numbers of people entering the property, but the latter was not the case.
I do not think the fact that [the defendant] was conducting a garage sale on the property and that goods were on display to the right of the driveway constitutes a sufficient reason to expand the scope of the duty of care so as to include within it the unevenness at the point where [the plaintiff] fell.
On the issue of contributory negligence, the learned judge found that upon the assumption that Ms Neindorf was in breach of a duty of care owed to Ms Junkovic, a reduction of 30% should be made for the failure by Ms Junkovic to take reasonable care for her own safety. The judge would also have reduced the quantum of damages. Had the plaintiff succeeded on the primary issue of negligence the judge would have entered judgment for Ms Junkovic for $13,974.80. On appeal there was no challenge to the judge’s reassessment of quantum.
Submissions on Appeal
Plaintiff
Counsel submitted that Ms Junkovic’s lawful entry upon Ms Neindorf’s premises established a relationship between them that gave rise to a duty on the part of Ms Neindorf to take reasonable care to avoid foreseeable risk of injury to Ms Junkovic. It was said that this extended to taking reasonable care to avoid an injury of the type suffered in the present case.
Counsel contended that the finding that the difference in the height of the concrete where Ms Junkovic fell would have been clearly ‘visible and obvious’ was not supported by the evidence. It was said that the difference in height was not observable from the side of the driveway as Ms Junkovic entered the property. It was submitted that by the time the difference in height may have been observable, Ms Junkovic’s attention was directed to the goods on display. It was said that any failure on the part of Ms Junkovic to fail to notice the difference in height between the concrete slabs was not due to a want of reasonable care on her behalf, but rather due to her attention being distracted by the goods for sale.
Counsel submitted that the number of persons actually present at the property at the time of the injury was not determinative of the scope of the duty of care. Rather, it was the potential for a significant number of persons to be present which was relevant. It was submitted that in some circumstances, the line between the scope of duty of care owed and the breach of that duty may be difficult to draw due to the fact that the factors relevant to scope of duty are also relevant to breach and causation. It was said that in the present circumstances, the finding with respect to breach and causation support a finding that the scope of the duty of care extended to the area of unevenness in question.
Counsel submitted that Ms Neindorf had ample opportunity to foresee the potential for harm arising from the uneven surface of the concrete slabs when planning for the sale. It was said that, having advertised the sale to the public at large, Ms Neindorf was required to contemplate the possibility of large numbers of people attending her premises, including persons of varying ages, possibly with a range of disabilities and unfamiliar with the unevenness of the driveway. It was said that the sale was one of four garage sales held by Ms Neindorf during the previous two years. The sale was not a ‘one off event’. Ms Neindorf had experience in planning such events. It was contended that the placement of the goods in the confined areas of the driveway was also relevant as it made it more likely that someone would step on the uneven surface at a time when they were distracted by the goods. In particular, it was said that although the judge acknowledged the relevance of the goods and activities causing a distraction to entrants, he failed to have adequate regard to those factors when considering the scope of the duty of care.
Counsel submitted that although the judge made reference to the principles enunciated by the High Court in Ghantous, insufficient regard was had to the scope of duty owed by a public authority compared to an owner of domestic premises engaged in a commercial activity. It was contended that the circumstances of the present case were such that the principles established in Webb v South Australia and Australian Safeway Stores v Zaluzna[3] were directly applicable. It was said that those principles mandated a finding that the scope of duty owed extended to the unevenness of the concrete.
Defendant
[3] (1987) 162 CLR 479
Counsel for Ms Neindorf submitted that the resolution of the issue of breach of duty in the present case involved the direct application of the principles enunciated by the High Court in Ghantous. It was submitted that these principles had been applied in a number of recent decisions leading to a finding of no liability. [4]
[4] For example see Gondoline Pty Ltd v Hansford [2002] WASCA 214 (pavers with a height differential of 12-25 millimetres); Lombardi v Holroyd City Council [2002] NSWCA 252 (concrete slabs in footpath, height differential of 25 millimetres); Richmond Valley Council v Standing [2002] NSWCA 359 (junction between footpath and driveway 15 millimetres in height differential); Burwood Council v Byrnes [2002] NSWCA 343 (concrete pavers with a height differential of 20 millimetres); Roads &Traffic Authority NSW v McGuiness [2002] NSWCA 210 (manhole cover standing proud 13 millimetres); Clark v Energy Australia [2003] NSWCA 193 (imprint in footpath with depth of 10-14 millimetres); Folkes v Calabaro [2004] NSWCA 191 (boarding laid across footpath with chamfered edge).
It was submitted by counsel that the judge correctly found that the concrete driveway, including the expansion joints, were similar to many other concrete driveways in South Australia. Such surfaces tend to deteriorate with cracking. Differences in height between slabs is not uncommon. It was said that the unevenness at the point where Ms Junkovic fell was not an uncommon or an unexpected feature of a domestic property. It was said that the imperfections in the surfaces of the driveway, including the cracking and the uneven surfaces, were plain to see.
Counsel contended that although Ms Neindorf was ‘plainly aware’ of unevenness in the driveway, the height difference between the concrete slabs was not a risk that was obvious to her. It was said that the difference in height between the slabs did not constitute a hazard with respect to which Ms Neindorf was obliged to provide a warning. It was submitted that Ms Neindorf’s position as occupier of domestic premises and the holder of a sale was distinguishable from the position of an occupier of commercial premises. It was said that although the garage sale could in a sense be described as commercial, it was of a low level.
Counsel submitted that the fact that Ms Junkovic was anxious to inspect goods on display and did not look where she was walking did not deprive her of the opportunity to see the state and condition of the driveway. Counsel suggested that Ms Junkovic’s failure to look where she was going was the likely cause of her fall. Had she been watching where she had been walking, she instinctively would have prepared herself for any unevenness in the driveway. It was said that in the event that Ms Neindorf was negligent, the judge’s findings of contributory negligence should be upheld.
In addition, counsel advanced a number of submissions relating to a notice of alternative contention. Ms Neindorf disputed the magistrate’s finding that she ought to have foreseen the potential for tripping on the uneven surface and painted strips of paint along the unevenness of the slabs or placed a table over the offending area. It was said that the evidence at trial suggested that these steps would not have prevented the incident. It was contended that Ms Junkovic was unlikely to have seen the expansion joint even if it had been marked with paint. It was further said, that it was easy in hindsight to target one particular area of the driveway where the incident occurred. It was said that a reasonable householder must act in advance. The magistrate’s approach would place an intolerable burden on a householder to identify potentially numerous areas of potential danger in the driveway and the surrounding garden area to which a visitor’s attention may need to be drawn.
Occupier’s Duty of Care
In 1987 Part 1B was introduced by amendment to the Wrongs Act 1936 (SA). Part 1B is now re-enacted in the Civil Liability Act 2004 (SA). That Part provides the framework for the consideration of the duty of care owed by an occupier. Part 1B relevantly provides:
17B In this Part, unless the contrary intention appears-
“dangerous” includes unsafe;
“landlord” includes a landlord under a statutory tenancy;
“occupier” of premises means a person in occupation or control of the premises, and includes a landlord;
“premises” means-
(a) land; or
(b) a building or structure (including a moveable building or structure); or
(c) a vehicle (including an aircraft or a ship, boat or vessel).
Occupier’s duty of care
17C (1)Subject to this Part, the liability of the occupier of premises for injury damage or loss attributable to the dangerous state or condition of the premises shall be determined in accordance with the principles of the law of negligence.
(2) In determining the standard of care to be exercised by the occupier of premises, a court shall take into account--
(a) the nature and extent of the premises; and
(b) the nature and extent of the danger arising from the state or condition of the premises; and
(c) the circumstances in which the person alleged to have suffered injury, damage or loss, or the property of that person, became exposed to that danger; and
(d) the age of the person alleged to have suffered injury, damage or loss, and the ability of that person to appreciate the danger; and
(e) the extent (if at all) to which the occupier was aware, or ought to have been aware, of--
(i) the danger; and
(ii) the entry of persons onto the premises; and
(f) the measures (if any) taken to eliminate, reduce or warn against the danger; and
(g) the extent (if at all) to which it would have been reasonable and practicable for the occupier to take measures to eliminate, reduce or warn against the danger; and
(h) any other matter that the court thinks relevant.
(3) The fact that an occupier has not taken any measures to eliminate, reduce or warn against a danger arising from the state or condition of premises does not necessarily show that the occupier has failed to exercise a reasonable standard of care.
(4) Subject to any Act r law to the contrary, an occupier’s duty of care may be reduced or excluded by contract but no contractual reduction or exclusion of the duty affects the rights of a person who is a stranger to the contract.
(5) Where an occupier is, by contract or by reason of some other Act or law, subject to a higher standard of care than would be applicable apart from this subsection, the question of whether the occupier is liable for injury, damage or loss shall be determined by reference to that higher standard of care.
(6) An occupier owes no duty of care to a trespasser unless –
(a) the presence of trespassers on the premises, and their consequent exposure to danger, were reasonably foreseeable; and
(b) the nature or extent of the danger was such as measures which were not in fact taken should have been taken for their protection.
…
Exclusion of conflicting common law principles
17E. (1) Subject to subsection (2), the Part operates to the exclusion of any other principles on which liability for injury, damage or loss attributable to the state or condition of premises would, but for this Par, be determined in tort.
(2) This Part does not apply to a case where an occupier causes a dangerous state or condition of premises, or allows premises to fall into a dangerous state or condition, intending to cause injury, damage or loss to another.
In the course of the second reading speech introducing the proposed amendment the Attorney General made the following remarks:[5]
[5]South Australia, Parliamentary Debates, Legislative Council, 19 March 1987, 3531-3533 (C.J. Sumner, Attorney General)
Without exception, the general thrust of legal developments at all levels and in most jurisdictions has been towards subsuming the duties of occupiers to the various categories of entrants upon their lands under the general law of negligence. …
…
This Bill, by adopting the general principles of the law of negligence, has the major advantage that the law the courts are to administer, and upon which practitioners must advise clients, will be given a clear foundation on principles with which both are thoroughly familiar and accustomed to deal. Moreover, the general principles of negligence ought to be capable of taking into account such matters as the unpredictability of the movements of entrants on land and to balance the interest and convenience of the occupier and the security of the entrant from unreasonable dangers.
…
The nature and extent of premises are to be taken into account before liability can be established. The Government is concerned to ensure that the actual size of land-holdings is not overlooked as a relevant factor. Clearly, all other things being equal, a breach of duty would be less likely to be inferred when the event occurs in a remote part of a large land-holding (for example, an outback pastoral lease) than when the same event occurs in the corner of a suburban backyard.
…
This Bill is a sincere attempt by the Government to strike a balance between the rights and entitlements of owners and occupiers of premises and the reasonable expectations of those who come upon or traverse their premises. It is also a genuine attempt to take into account the differing considerations that apply in urban and rural settings respectively. It is, most importantly, a measure that will bring long overdue sense, uniformity and rationality to an area of law that has proved obscure, difficult even for experts and replete with potential for injustice.[6]
….
As Fleming says, danger is avoidable by an informed and reasonably careful visitor, but notice does not necessarily and of itself discharge an occupier’s liability. All the circumstances must be taken into account before an occupier can be said to have acquitted himself or herself of his duty by merely warning invitees or other of the existence of the danger. As Fleming notes (page 431), the Australian view of the law is that knowledge of the risk bars recovery only when the giving of notice would have discharged the occupier’s duty, and the question of fact remains in each case whether in the special circumstances mere warning would have afford adequate protection to a visitor using the premises in an ordinary manner with reasonable care.
If the danger is simple, not hidden, and an easy manner for avoiding it is readily apparent, knowledge of its existence would be sufficient.[7]
…
The principles set out in this Bill to reform the law are generally acceptable. They are very much in line with what is in the Victorian Occupiers Liability Act. The liability of the owner or occupier is to be determined according to the principles of law of negligence and, in determining the standard of care to be exercised by the occupier of premises, the court is to take into account a number of factors. They include the nature and extent of the premises; the nature and extent of the danger arising from the state of the premises; the circumstances in which the person alleged to have suffered injury, damage or loss or [sic] the property of that person became exposed to that danger; the age the person became exposed to that danger; the age of the person alleged to have suffered injury, damage or loss and the ability of that person to appreciate the danger; the extent if at all to which the occupier was aware or ought to have been aware of the danger and the entry of persons on the premises; the measures if any taken to eliminate, reduce or warn against the danger; the extent if at all t which it would have been reasonable and practicable for the occupier to take measures to eliminate, reduce or warn against the danger; and any other matter that the court thinks relevant. [8]
[6] Legislative Council Debates, 19 March 1987, The Hon CJ Sumner Second Reading Speech, 3532-3533
[7] Legislative Council Debates, 9 April 1987, The Hon CJ Sumner Second Reading Speech, 4013
[8] Legislative Council Debates, 7 April 1987, The Hon CJ Sumner Second Reading Speech, 3845
It is to be observed that section 17C(1) directs that the liability of an occupier for injury attributable to the dangerous state or condition of premises is determined in accordance with the common law principles of negligence. Presumably the legislature understood and intended that developments of the common law of negligence would have application. However, the terms of section 17C(2) require the court to take into account a number of specific matters when determining the standard of care to be exercised. Section 17E(1) confirms the paramountcy of the provisions of section 17C(2) over any other principles on which liability for injury attributable to the state or condition of premises would but for Part 1B be determined in tort. This section has a particular relevance when considering any changes to the common law after the introduction of Part 1B which are in conflict with any of the matters referred to in section 17C(2).
In Kocis v S. E. Dickens Pty Ltd[9] Ormiston J considered the application of sub-section 14B(3) and (4) of the Wrongs Act 1958 (Vic) in the context of a negligence claim arising from a plaintiff slipping on a pool of detergent in the aisle of a supermarket. Sub-section 14B(3) is similar to section 17C of the Civil Liability Act. It provides:
An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that any person on the premises will not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises.
[9] [1998] 3 VR 408
In Kocis Ormiston J observed: [10]
The standard there expressed [in subsection 14B(3)] is so broadly stated that much of the earlier learning is for practical purposes superseded. In consequence the element which was previously seen be important in slipping cases, namely the nature of danger and whether the occupier knew or ought to have known of it, no longer requires detailed analysis, those matters being merely factors among many others which have to be taken into account in determining whether the duty of care has been breached. In substance, therefore, the statute, while stating in broad terms the duty of care which the occupier owes, effectively gives to all entrants on premises a right to sue an occupier in negligence without the need to prove that the injury resulted from a “danger” of any specified kind.
[10] Kocis v S. E. Dickens Pty Ltd [1998] 3 VR 408 at 409
Common Law
In recent times courts, when discussing the common law, have spoken of the scope of the duty of care. Whether the scope of the duty can be distinguished from the standard of care to be exercised in the particular circumstances may be problematic. Ultimately, the question of ’what is reasonable care’ will depend upon the view taken of the facts and circumstances in the particular case.
Recent developments of the common law with respect to occupier’s liability can be traced to the judgment of Deane J in Hackshaw v Shaw[11]. That case concerned the duty owed by an occupant to a trespasser. Deane J observed:[12]
[I]t is not necessary, in an action in negligence against an occupier, to go through the procedure of considering whether either one or other or both of a special duty qua occupier and an ordinary duty of care was owed. All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant’s occupation of premises and the manner of the plaintiff's entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. A prerequisite of any such duty is that there be the necessary degree of proximity of relationship. The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member. The measure of the discharge of the duty is what a reasonable man would, in the circumstances, do by way of response to the foreseeable risk. Where the visitor is lawfully upon the land, the mere relationship between occupier on the one hand and invitee or licensee on the other will of itself suffice to give rise to a duty on the part of the occupier to take reasonable care to avoid a foreseeable risk of injury to her or him. When the visitor is on the land as a trespasser, the mere relationship of occupier and trespasser which the trespasser has imposed upon the occupier will not satisfy the requirement of proximity. Something more will be required. The additional factor or combination of factors which may, as a matter of law, supply the requisite degree of proximity or give rise to a reasonably foreseeable risk of relevant injury are incapable of being exhaustively defined or identified. At the least they will include either knowledge of the actual or likely presence of a trespasser or reasonable foreseeability of a real risk of such presence.
Whether, when a duty to take reasonable care exists, reasonable care has been taken is a question of fact to be answered in the context of the "all-embracing" considerations to which the Judicial Committee referred in Cooper and to which Fullagar J. had referred in Cardy. As Salmon L.J. observed in the course of his judgment in Herrington:
"What is reasonable care is only such care as is reasonable in all the circumstances of the case. The circumstances vary infinitely from case to case. Foreseeability of the likelihood of injury, the degree of risk, the gravity of the injury, are all circumstances which have to be assessed by the court and weighed against the burden which would be incurred by an occupier in taking steps to prevent injury before the court can decide whether or not negligence has been made out. The circumstance that the plaintiff is a trespasser, and the sort of trespasser he is, must clearly be of great importance."
[11] (1984) 155 CLR 614
[12] (1984) 155 CLR 614 at 662
In 1987 these observations of Deane J were adopted and applied by the majority of the High Court in Australian Safeway Stores Pty Ltd v Zaluzna[13]. In that case, Ms Zaluzna was injured when she slipped in the foyer area of a supermarket in Victoria. The vinyl tiled floor of the foyer had become moist as a result of wet weather. Ms Zalunza sought damages from the occupiers of the supermarket, alleging breach of the duty owed by an occupier to an invitee. In their joint judgment Mason, Wilson, Deane and Dawson JJ observed:[14]
The recent review of relevant authority undertaken by Deane J in Hackshaw, and by Mason J in Papatonakis, prepares the way for a more definitive statement on this aspect of the law of negligence in Australia. In Papatonakis Deane J referred to the reasons which he gave in Hackshaw and continued:
" ... it should now be again accepted in this country that the so-called `special duty' which an occupier of land owes to an invitee is, on analysis, properly to be seen as the ordinary common law duty to take reasonable care: `The duty is a duty to take reasonable care. The standard is the standard of the reasonable man', per Fullagar J, Commissioner for Railways (NSW) v Anderson. In that regard, the dissenting judgments of Lord MacDermott and Lord Reid in London Graving Dock Co Ltd v Horton accord better with subsequent developments in the law of negligence and are to be preferred, at least in this country, to the judgments of the majority of their Lordships which were largely rendered inoperative in England by subsequent statutory provision: see Occupiers' Liability Act 1957 (UK), s 2(4)(a)."
Mason J in Papatonakis said:
"In relation at least to a person in the position of an invitee, Anderson and Voli must be taken as settling that the duty of an occupier, even as it is expressed in the Indermaur v Dames formulation, is no more and no less than the ordinary duty of reasonable care."
[13] (1987) 162 CLR 479
[14] (1987) 162 CLR 479 at 484
In 1992 the topic was revisited by the High Court in Nagle v Rottnest Island Authority[15]. Mr Nagle was injured when he dived into the water at a reserve managed by a statutory authority and struck a submerged rock. The authority promoted the reserve for swimming and related recreational purposes. There were no signs warning visitors of the presence of submerged rocks. The court concluded the injuries sustained by Mr Nagle resulted from the authority’s breach of its duty of care. Mason CJ, Deane, Dawson and Gaudron JJ applied the earlier observations of Deane J and the majority in Australian Safeway Stores and concluded:[16]
The trial judge was plainly right in concluding that the Board was under a general duty of care at common law to take reasonable care to avoid foreseeable risks of injury to visitors lawfully visiting the Reserve. As stated earlier, the Board was the occupier of the Reserve and was under a statutory duty to manage and control it for the benefit of the public. Moreover, the Board promoted the Basin as a venue for swimming and encouraged the public to use it for that and other purposes by installing, maintaining and servicing various facilities on that part of the Reserve which was immediately adjacent to the Basin. In these circumstances, it is beyond question that the Board brought itself into a relationship of proximity with those visitors who lawfully visited the Island and resorted to the Basin for the purpose of swimming with respect to any foreseeable risks of injury to which they might be exposed. In this case, the basis for holding that the Board came under a duty of care may be simply stated: the Board, by encouraging the public to swim in the Basin, brought itself under a duty of care to those members of the public who swam in the Basin. As occupier under the statutory duty already mentioned, the Board, by encouraging persons to engage in an activity, came under a duty to take reasonable care to avoid injury to them and the discharge of that duty would naturally require that they be warned of foreseeable risks of injury associated with the activity so encouraged.
In reaching this conclusion, we have not mentioned foreseeability otherwise than by reference to the standard or scope of the duty of care. That is because this is a case in which it is possible to ascertain the existence of a generalized duty of care -- to take reasonable steps to avoid foreseeable risk of injury -- owed to members of the public who resort to the Basin to swim, without looking to foreseeability, a concept which in many other situations is the influential, if not decisive, determinant of the existence of a relationship of proximity. Here, as it seems to us, foreseeability is of critical importance in determining not whether there was a duty of care but whether there was a breach of duty. However, it is convenient to deal with foreseeability as a separate issue.
The court adopted and applied the observations of Mason J in Wyong Shire Council v Shirt[17] on the issue of foreseeability:
A risk of injury which is quite unlikely to occur … may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being "foreseeable" we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable.
In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.
[15] (1992) 177 CLR 423
[16] (1992) 177 CLR 423 at 429-430
[17] (1980) 146 CLR 40 at 47-48
In 1998 in Romeo v Conservation Council of the Northern Territory[18] the High Court again considered the duty of care owed by an occupier. Ms Romeo, a young woman, fell from the top of a cliff to a beach in a nature reserve managed by the Commission and suffered serious injuries. The fall occurred at night while she was intoxicated. There was no fence or other barrier at the edge of the cliff. The presence of the cliff was obvious, the area was one of natural beauty. The cliff was about two kilometres in length.
[18] (1998) 192 CLR 431
Toohey, Gaudron, McHugh, Gummow and Hayne JJ followed and applied the decision in Nagle. The observations of Deane J in Hackshaw and of the Court in Safeway Stores were approved and applied. McHugh J observed:[19]
Since Zaluzna, the duty of a public authority is to take reasonable care in all the circumstances of the case. Once a risk of injury to an entrant on the premises is reasonably foreseeable, the duty requires the authority to eliminate that risk if it is reasonable to do so having regard to the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the [authority] may have.
[19] (1998) 192 CLR 431 at 460
In 2000 the High Court returned again to the issue of occupiers liability in Modbury Triangle Shopping Centre Pty Ltd v Anzil[20]. Mr Anzil, an employee of a tenant at a shopping centre was attacked and badly injured while walking to his car in the shopping centre car park. The shopping centre’s lights had been turned off by the land owner at about the time the shops closed. There was no other direct lighting in the car park.
[20] (2000) 205 CLR 254
The High Court upheld the landowner’s appeal, concluding that the landowner’s duty as an occupier of the land did not extend to the taking of steps to prevent physical injury to Mr Anzil resulting from the criminal behaviour of a third party on the land. Counsel for the appellant accepted the authority of Safeway Stores and accepted that a duty of care arose but contended that the duty related to the dangerous static state of the premises directly causing physical harm to an entrant. It was argued that the duty of care did not extend to the occupier taking measures to prevent or otherwise protect against potential criminal actions except where the person had the capacity to exercise direct control over those actions or there were other overriding factors giving rise to a relationship which was sufficient to establish a duty of care.
Gleeson CJ considered that the control or knowledge that would form the basis for occupiers liability in relation to a physical state or condition of land was absent when one considers the possibility of criminal behaviour. Gleeson CJ concluded that while the risk of harm of the kind suffered was foreseeable in the sense that it was real and not far fetched, the existence of the risk was not sufficient to impose upon an occupier of the land a duty to take reasonable care to prevent someone lawfully on the land from the criminal behaviour of a third party who comes onto the land. There was nothing in the reasons of Gleeson CJ which suggested that there was rejection or disapproval of the observations referred to earlier from Hackshaw, Safeway Stores, Nagle and Romeo. Gaudron and Hayne JJ took a similar view. Callinan J noted the remarks of McHugh J in Romeo and concluded:[21]
I have come to the conclusion that the duty owed by the appellant to the first respondent in the circumstances of this case did not extend to a positive obligation to keep the lights illuminated on the towers, or any tower, until after the shop closed. That does not mean that there can never be a duty, whether dischargeable by turning lights on, or otherwise to take precautions to prevent or reduce the chances of criminally inflicted injury or loss by third parties.
However, as Dixon J in Leurs said, for such a duty to arise, there must be something special in the circumstances, or the nature of the relationship between [the plaintiff] and [the defendant]. I do not consider that anything of that kind exists here.
[21] (2000) 205 CLR 254 at 269 at 302
It is to be observed that the decision in Modbury Triangle did not seek to limit established general principles. The court applied those general principles in reaching the conclusion that in the particular circumstances, the duty owed by the landowner did not extend to guard against the particular risk by requiring the land owner to light the car park.
As can be observed from the above discussion, the principles enunciated in Safeway Stores remain the authoritative common law position with respect to occupiers liability. While the approach taken by the majority of the High Court in Ghantous may have developed the common law position with respect to the liability of statutory authorities, the observations of the majority in Safeway Stores remain apposite to the present case.
This court considered the duty of care owed by an occupier of residential premises to invitees in the case of Cutts v O’Neil.[22] Ms Cutts suffered injuries as a result of falling down steps in the O’Neil’s home, when, as a visitor to the home, she attended a party being held there. Ms Cutts entered by the front hallway which gave access down two steps to a sunken lounge. On the other side of the lounge were sliding doors leading on to an outside patio. At the time of the fall, it was evening and the hallway was dimly lit. The trial judge dismissed the action on the ground that negligence had not been proved.
[22] (1998) 71 SASR 56
Millhouse and Debelle JJ dismissed the appeal on the ground that there was nothing inherently dangerous in the steps. Their Honours observed that the question was whether a reasonable person in the position of the occupier would have foreseen the risk of injury to a stranger in the house in the given circumstances. Further there was no suggestion that Ms Cutts’ attention had been distracted by an activity being conducted by the O’Neils, in particular an activity designed to attract attention. Each member of the Full Court acknowledged the expression of occupier’s liability contained in section 17C of the Wrongs Act 1936 (SA). In relation to the effect of section 17E of the Wrongs Act Debelle J noted:[23]
Section 17E makes provisions for the exclusion of conflicting common law principles. There is nothing in this case which calls 17E into operation. The principles of the law of negligence to which section 17C(1) refers were expressed by the High Court in Australian Safeway Stores Pty Ltd v Zaluzna … when the court applied the observations of Deane J in Hackshaw v Shaw.
[23] (1998) 72 SASR 56 at 68-69
It was observed by Debelle J that the duty required of occupiers was to take reasonable care to protect entrants or visitors from risks of injury which could be foreseen and avoided. His Honour had regard to the principles of foreseeability articulated by Mason J in Wyong Shire Council v Shirt. Debelle J considered that factors such as the lighting in the area, the condition of the stairs and the existence of a balustrade were relevant consideration when considering the scope of the duty of care owed by defendant to the plaintiff. Debelle J concluded that Ms Cutts fell down the stairs not due to the negligence on the part of the O’Neils but rather by the fact that she was distracted and failed to look where she was going. It was observed:[24]
A householder is entitled to expect that persons ascending or descending steps or stairs in his house will exercise reasonable care and prudence in doing so. Ordinarily prudence based on one’s everyday experience indicates that care should be taken when ascending or descending steps or stairs to ensure that one does not miss one’s step. That is the position in this case. The lighting was sufficient to see features indicating the existence of the steps as well as to see the steps themselves. The defendants were, therefore, entitled to expect the plaintiff would see the steps and to expect that she would exercise ordinary care when stepping down into the lounge.
[24] (1998) 72 SASR 56 at 71
Olsson J, in dissent, also referred to the relevance of section 17C and section 17E of the Wrongs Act. Section 17C was said to ‘spell out’ the duty of care which the O’Neils owed Ms Cutts. His Honour made the following observations of section 17E:[25]
Section 17E of the same statute renders is quite apparent that those provisions were intended by the legislation to constitute an exclusive code on the topic of occupier’s liability, save in certain circumstances not here relevant.
Save for a need, specifically, to address the issues adverted to in s 17C, claims of this type fall to be disposed of on the basis discussed by the High Court in Australian Safeway Stores Pty Ltd v Zalunza.
[25] (1998) 72 SASR 56 at 61
Olsson J referred to the decision of Mahoney JA in Phillis v Daly and summarised questions that arise in situations of occupiers liability.[26]
[26] (1998) 72 SASR 56 at 63
… [Mahoney JA] made the point that, seen from the viewpoint of an occupier of premises prior to the accident, three questions arise. These are:
(1) Does the condition of the premises involve a risk of injury to an entrant upon them?
(2) May that risk be ignored because it is far fetched or fanciful?
(3) What should a reasonable person do to avoid injury from it?
As the learned judge went on to point out, seen from the view point of the court, after the accident, the questions which arise are:
(1) What was it that actually physically caused the plaintiff’s injury?
(2) Was the risk of injury far fetched or fanciful?
(3) If it was not, what would a reasonable person have done to avoid injury from it; and did the defendant do it?
Of course, those questions must be posed and responded to in light of a number of considerations now well-settled by the authorities.
Those which are particularly relevant for present purposes are:
Each situation should be judged in prospect and not in retrospect. The likelihood of an incapacitating occurrence, the likely extent of the injuries which the occurrence may cause, the nature and extent of the burden of providing a safeguard against the occurrence and the practicability of the specific safeguard which would do so are all indispensable considerations: see Maloney v Commissioner for Railways.
A risk may constitute a foreseeable risk even though it is unlikely to occur. It is enough that the risk is not far fetched or fanciful: see Wyong Shire Council v Shirt.
A person who owes a duty of care to others must take account of the possibility that one or more of the persons to whom the duty is owed might fail to take proper care for his or her own safety: see Nagle v Rottnest Island Authority.
Olsson J concluded that the trial judge erred in not approaching the issues in this way. His Honour found that it was a foreseeable risk that a person who was a stranger to the premises could fall on the short tread step in dim light, particularly in circumstances when other distractions arose due to the very activity begin conducted on the premise by the occupiers themselves. Olsson J held that on the facts a finding of negligence was inevitable.
In the present case the learned judge considered that the common law duties of a private occupier of property had been developed by the High Court in Ghantous. It was suggested that this decision had developed the common law beyond the decisions in Hackshaw and Safeway Stores. This allowed the judge to conclude that the scope of the duty owed by Ms Neindorf to entrants to her property did not extend to the taking of any step at all to guard against the dangerous state of her driveway. The judge reasoned that the danger was so obvious that Ms Neindorf could safely rely on visitors taking care for their own safety. One consequence of this reasoning is that it may lead to the conclusion that the more obvious the danger the less the scope of the duty owed by an occupier.
The common law has not developed to this point. Ghantous addresses the duty owed by a public authority in respect of public places. Different considerations arise concerning duties owed by a private occupier. Different policy issues arise.
Consideration of the Issues
Ms Neindorf foresaw or ought to have foreseen that entrants to her property may not see the dangerous state of the driveway and as a result may trip, stumble or fall and suffer injury. This risk could arise from mere inattention or could arise because the entrant’s attention was diverted at a critical moment.
The present case involved an advertised garage sale. Ms Neindorf invited the public at large to attend her premises. She chose to display goods above ground level at a point proximate to her driveway. Intending purchasers had no alternative but to approach the goods for sale by using the driveway. In the ordinary course, it could be expected that the attention of entrants might be drawn to the goods on display and away from the state of the driveway. As a result, through lack of awareness, an entrant could trip, stumble or fall and suffer injury. All this was readily foreseeable.
Ms Neindorf had experience in conducting garage sales. She was prepared for a number of people to attend her garage sale, and had enlisted the assistance of two family members to assist with sales. This indicates that she expected a considerable number of people to attend the sale, at the very least a volume of traffic that required more than one attendant at the sale.
Ms Neindorf foresaw or ought to have foreseen that entrants attending for her garage sale might include the very young, mentally or physically disabled, parents with young children, the elderly and the frail. Ms Neindorf had a duty of care to all entrants to her property on the occasion of this sale.
Ms Neindorf could have taken a number of steps to safeguard against such an occurrence. A simple warning at the entrance to her property ‘take care – dangerous [or uneven] driveway’ could have been erected. The two persons stationed near the goods could have been directed to provide a warning to visitors. Some form of barrier could have been placed over or around the dangerous area. The dangerous area could have been marked in some way. All of these were practical, inexpensive, and easy steps to take. Ms Neindorf did nothing.
In the course of submissions, counsel for Ms Neindorf suggested that the scope or the extent of the duty owed could not be assessed by having a regard to the manner in which the danger could have been obviated or reduced. This submission should be rejected. Section 17C of the Wrongs Act directs that the court must have regard to these matters in assessing the extent of the duty owed.
Ms Junkovic and Ms Neindorf were in a sufficiently proximate relationship to give rise to a duty of care. That duty arose in a setting where Ms Neindorf sought to encourage members of the public to attend her premises for the purpose of selling goods. The relationship between the parties, although involving a commercial element, was different to that between the occupier of a supermarket and a customer. Similarly, it was different in nature to the relationship between a local council and a pedestrian walking on a footpath.
It is also necessary to consider the degree of control that the parties had over the premises and their own safety. Relevantly, Ms Neindorf had control over the premises as it was her residential home. She had the capacity and opportunity to assess potential hazards and take steps to remove or minimise those hazards. Ms Neindorf had control over where the goods were to be displayed for sale and the methods of access by entrants to the display area. Ms Junkovic also had a measure of personal control over her own conduct.
It is a relevant circumstance that Ms Neindorf sought to attract persons to enter her premises for the purpose of purchasing goods. Goods were arranged at the premises in a way intended to entice or encourage attendees to inspect them.
In Brady v Girvan Bros Pty Ltd[27] the New South Wales Court of Appeal considered a negligence claim brought by a plaintiff against an occupier. The plaintiff claimed that she suffered injuries as a result of slipping on jelly on the floor of a common passage way in a shopping mall. When determining the standard of care owed by an occupier to an entrant, McHugh J considered the public nature of the premises and the fact that persons were invited into the premises for commercial purposes to be relevant:[28]
One circumstance of great importance is that the Minto Mall was a public place. The number of people who use the premises, the frequency with which spillages occur, the gravity of the danger, and the area to be supervised are also relevant circumstances in determining what standard of care is reasonably required to avoid risk of injury. Equally important in determining what reasonable care requires is the importance to the community of accident prevention. The High Court has recently stated that accident prevention is unquestionably one of the modern responsibilities of an employer: McLean v Tedman … Bankstown Foundry Pty Ltd v Braistina …. Likewise, accident prevention is one of the responsibilities of those who for reward, direct or indirect, invite or permit members of the public to attend their premises. Members of the public are entitled to expect that appropriate steps will be taken to safeguard them against danger in using public places.
…
A real risk of injury should be eliminated unless the costs of doing so is disproportionate to the risk.
[27] (1998) NSWLR 241
[28] Brady v Girvan Bros Pty Ltd (1998) 7 NSWLR 241 at 254-5
Kirby P observed:[29]
The respondent was in charge of a large commercial enterprise. Undiscriminatingly, it invited members of the public to do business in that enterprise. It derived, by inference, an economic advantage from their presence in its mall. It must anticipate the presence there of members of the public of all ages, inclinations and capacities.
…
If the circumstances are such that the dropping of substances is liable to cause a fall and if this was “inherently likely to occur”, the mere fact that the claimant (with imperfect knowledge or means of knowledge as to the system adopted by the occupier) cannot show precisely that such falls have been common and cannot prove exactly the precautions actually taken, does not deprive him or her of recovery from the occupier in the event of injury. If the inherent likelihood of spills is great, it is entirely reasonable that those coming onto the premises should be able to look to the occupier for a very high degree of care indeed.
[29] Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241 at 246-247
It is to be acknowledged that Ms Neindorf’s premises were not a public place of the type described in many of the cases. However, she did invite the public at large to enter her premises on that day for the purpose of inspecting and possibly purchasing items. There were no restrictions to access. Whether many or few people attended could not be determined. The sale was advertised in writing to the public. In these circumstances the remarks of McHugh J and Kirby P in Brady do have particular relevance. They identify factors directly relevant to the consideration of the standard of care owed to entrants.
As earlier observed it was accepted that Ms Neindorf owed a duty of care toward persons entering her property for the purposes of her garage sale. The sale involved the display of goods in a manner to attract the attention and observations of entrants. Ms Neindorf had control of the premises. She had the ability to decide where the goods would be set up, the manner in which entrants would be allowed to enter and walk about her property. She was or ought to have been aware of the dangerous conditions of her driveway. It was foreseeable that at times the driveway may be part in shadow or shade. It was foreseeable that an entrant’s attention would be diverted by the goods on sale and away from the condition of the driveway. It was reasonably foreseeable that a person whose attention was so diverted would trip, stumble or fall and as a consequence suffer injury. Simple steps were available to guard against the danger.
Ms Neindorf owed Ms Junkovic a duty of care to take reasonable steps to avoid harm of the type suffered. That duty of care was breached. Ms Neindorf is liable for the consequent losses. Ms Junkovic failed to take reasonable care for her own safety. She entered an unfamiliar driveway and failed to look carefully where she was walking. The judge’s assessment of Ms Junkovic’s contribution was appropriate.
In accordance with these reasons the appeal should be allowed. An order should be made entering judgment for Ms Junkovic in the amount of $13,974.80. The parties should be heard on the questions of interest and costs.
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