Large v O'Brien, Thomas and Goss

[1987] TASSC 106

Serial No B36/1987
List "B"

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Large v O'Brien, Thomas and Goss [1987] TASSC 106; B36/1987

PARTIES:  LARGE
  v
  O'BRIEN
  THOMAS
  GOSS

FILE NO/S:  2833/1984
DELIVERED ON:  17 August 1987
JUDGMENT OF:  Cosgrove J

Judgment Number:  B36/1987
Number of paragraphs:  6

Serial No B36/1987
List "B"
File No 2833/1984

LARGE v O'BRIEN, THOMAS AND GOSS

REASONS FOR JUDGMENT  COSGROVE J

17 August 1987

1. On the corner of Regina Street and Main Road in the Glenorchy Shopping centre, there is a building comprising 2 shops. The title to the land on which the shops stand has passed through several hands, but since 1955 it has been held by the proprietors from time to time of the business of Snow's Dry Cleaners. Since 1974 those proprietors have been Mr Thomas and Mr Goss, the second and third named defendants. The business is operated from the shop closer to Regina Street. The other shop has been let to various tenants. From 1981 the tenant has been Miss O'Brien, the first named defendant.

1. Although the title extends to the footpath, the shop buildings are set back, and the owners have paved the area between the buildings and the footpath. I do not know whether the setting back was a town planning requirement, nor whether there was a dedication to the public of some or all of the area in front of the shops, (which I shall hereafter call "the forecourt"). I proceed on the basis that there was no such dedication.

1. The general contour of the forecourt is a variable slope up from the footpath to the shop windows. In front of each shop a space has been levelled by constructing a small brick wall at a remove from the windows. Before the Snow's Dry Cleaners shop this level space has been used as a flower garden. It is possible that, at one time, the space before the O'Brien shop was similarly used, but since 1958 at least, it has exhibited a flat concrete surface, on which commercial signs like sandwich boards have been placed at times. The concrete is surrounded and supported on two sides and part of a third by the brick retaining wall which I previously mentioned. The height of the wall varies from nine and a half inches to almost zero. The concrete forecourt slopes down away from the wall to the street.

1. On 9 May 1983 the plaintiff who had operated her own business nearby for about 30 years and who was a regular customer at both shops, entered Miss O'Brien's shop to return 2 frocks which she had received "on approval". As she left the shop, something in the window caught her eye. She stepped onto the flat concrete area (which came in the trial to be called "the landing"). She examined the objects in the window, turned around to face the street, walked to the edge of the landing, looking at it and judging the extent to which it required her to step down (it was in fact somewhere between six and nine inches) stepped off, misjudged the height, and in someway which remains unclear to me, fell and sustained a fracture of the left femur. Although the actual mechanism of the fall could not be demonstrated satisfactorily, the plaintiff was adamant that she fell because the step down was greater in depth than she anticipated. She sued all the defendants for damages.

1. In order to succeed in her action, she must show as against one or more of the defendants (a) that he or she owed her a duty of care (b) that he or she was in breach of that duty and (c) that her injuries resulted from that breach.

1. There is no need to enter upon any detailed consideration of the relationship between the defendants and the landing and forecourt – that is, to consider questions of title and occupation. Nor is there any need to classify the plaintiff as invitee or licensee. It is clear that each of the defendants invited and expected customers to use the forecourt and landing and had a commercial interest in that use. Each of them was able to take steps to warn against any danger inherent in the use of those areas and if necessary to take steps to limit that use. Each of them therefore owed a duty in abstract terms to potential customers to take reasonable steps to eliminate risk or, in an appropriate case, to give warning of any risk. The next question is:– did that abstract duty have any practical application in the circumstances of this case? In framing the question in this way, I realise that I am departing from the judicial analysis made by Deane J in Hackshaw v Shaw (1984) 155 CLR 614 at 663. The departure involves no dispute with his Honour's approach. It merely seems simpler to me. It does not prevent me from adopting his Honour's comment that "The touchstone of its [the duty's] 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". In considering whether a reasonable man would consider that the condition of the premises created a risk of injury, one must look at the premises as they were on 9 May 1983, and their history. In this case the premises had been in the same condition and in constant use for 25 years. No person had sustained any injury therefrom. The brick surround differed in colour and texture from the concrete landing and the concrete forecourt. The step down was large enough to be obvious and outlined in red brick. Of itself it created no greater risk than any other step, as for example, in a theatre or a grandstand, or park, or concert area. The only risk which could conceivably be foreseen is that a visitor might forget its existence or misjudge its distance from the window and step backwards over it. But such a mishap (which could happen on any step) could be avoided only by railing the landing off or by removing it altogether. In the light of its history, such a response could not reasonably be called for. But consideration of a mishap of that nature is hypothetical. The plaintiff in this case was aware of the step – she simply misjudged it. That some–one might misjudge a step is foreseeable, but it calls for no response. The existence of the step was known to her – the colouring and height were constant reminders of its existence. Her injury was not the outcome of an omission by the defendants which allowed the continued existence of a foreseeable risk of an inadvertent backward step. It was a result of her own misjudgment – an event which could not reasonably be guarded against. In my opinion the state of the premises did not give rise to any practical duty to take any further step to warn the plaintiff to take care in stepping off the landing or to prevent her from doing so. Her injuries were not causally related to a foreseeable preventable risk. Her action therefore fails against all defendants.