2.Set aside pars 1, 2 and 3 of the orders of the Full Court of the Supreme Court of South Australia made on 15 October 2004 and, in their place, order that the appeal to that Court be dismissed.
3. Appellant to pay the respondent's costs in this Court.
On appeal from the Supreme Court of South Australia
Representation:
R J Whitington QC with K G Nicholson for the appellant (instructed by Thomson Playford Lawyers)
S Walsh QC with A Rossi for the respondent (instructed by Moody Rossi & Co)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Neindorf v Junkovic
Negligence – Occupiers' liability – Breach of duty of care – Appellant invited the public to attend a garage sale – Garage sale conducted on the driveway of her residence – Driveway surface was uneven – Respondent entered premises and tripped on driveway – Whether risk posed by the uneven surface of the driveway was obvious and relatively minor and whether such considerations justified conclusion that there was no breach of duty of care.
Negligence – Occupiers' liability – Whether appellant owed a duty of care to the respondent – Scope of duty – Relationship between the duty of care and other elements of the tort of negligence – Relevance of obviousness of the risk.
Negligence – Occupiers' liability – Standard of care – Whether appellant breached duty of care – Nature and extent of the premises – Nature and extent of the danger – Significance of economic relationship between the parties –Significance of the respondent's age – Significance of the appellant's knowledge of the danger – Absence of any precautionary measures – Reasonableness of taking precautionary measures – Relevance of obviousness of the risk – Relevance of inattention by the respondent – Relevance of the application to the evidence of the Wrongs Act1936 (SA).
GLEESON CJ. The outcome of this case turns upon the application, to an uncomplicated set of facts, of a provision of the Wrongs Act 1936 (SA) ("the Act"), which prescribes the matters a court is to take into account in determining the standard of care to be exercised by the occupier of premises. The facts, and the relevant provision of the Act (s 17C), are set out in the reasons of Callinan and Heydon JJ.
The respondent suffered injury when she tripped on an uneven surface in the driveway of the appellant's home while attending a garage sale, and fell.
It is common ground that the appellant, as occupier of the premises, owed the respondent a duty of care. The issue concerns the standard of care…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Neindorf v Junkovic [2005] HCA 75
Case
[2005] HCA 75
Decision Date
CaseChat Overview and Summary
This matter concerned an appeal to the High Court of Australia by the appellant, Ms Neindorf, against a decision of the Full Court of the Supreme Court of South Australia. The dispute arose from injuries sustained by the respondent, Ms Junkovic, when she tripped and fell on an uneven driveway during a garage sale conducted by the appellant at her residence. The respondent claimed damages for negligence, alleging a breach of the appellant's duty of care as an occupier.
The High Court was required to determine whether the appellant owed a duty of care to the respondent, the scope of that duty, and whether the appellant had breached that duty. Specifically, the Court considered whether the risk posed by the uneven driveway was obvious and minor, and if so, whether this justified a conclusion that there was no breach of duty. The relevance of the economic relationship between the parties, the respondent's age, the appellant's knowledge of the danger, the absence of precautionary measures, and the respondent's own inattention were also matters for consideration.
The High Court, in allowing the appeal, set aside the orders of the Full Court and dismissed the respondent's appeal to that Court. The majority of the High Court found that the approach of the majority in the Full Court to the law of negligence was correct, and that the appeal should be dismissed. The Court expressed concern about an erosion of negligence liability and a substitution of indifference to those who are considered legal neighbours. The Court ultimately ordered that the appellant pay the respondent's costs in the High Court.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside pars 1, 2 and 3 of the orders of the Full Court of the Supreme Court of South Australia made on 15 October 2004 and, in their place, order that the appeal to that Court be dismissed.
3. Appellant to pay the respondent's costs in this Court.
Background
Background to the litigation
In my view, the approach of the majority in the Full Court to the law of negligence was correct. This appeal should be dismissed. This Court should call a halt to the erosion of negligence liability and the substitution of indifference to those who are, in law, our neighbours. The erosion, and the indifference, has gone far enough. This appeal therefore involves important questions of legal principle and approach[21].[21]Contra reasons of Hayne J at [92] and Callinan and Heydon JJ at [99].The facts On 3 February 2000, the appellant placed an advertisement in the Trading Post, a specialist newspaper, advertising a garage sale to be conducted at her home in the weekend 5-6 February 2000. According to the evidence, the appellant had previous experience in conducting garage sales[22]. Such activities are common in the suburbs of Adelaide, where the appellant's home was situated, and elsewhere throughout Australia. [22](2004) 89 SASR 572 at 598 [106] per Gray J. The incident out of which the respondent's claim arose happened on 5 February 2000 at about 8.40 am. The day was clear and sunny. The appellant's property included a concrete driveway extending from a carport annexed to the house to the public footpath and road. The driveway comprised sections of concrete joined in an expansion joint which extended throughout its length[23]. The appellant placed a variety of domestic articles for sale on a trestle table situated on the southern side of the driveway close to the carport. Prospective purchasers had no alternative but to approach the goods by walking over the driveway. The appellant expected a volume of pedestrian traffic to attend the sale. She knew, or ought reasonably to have known, of the disparity in the levels of the adjoining concrete slabs in the forecourt of her home. Although the respondent was questioned in a manner suggesting that she had visited the property on the evening before the sale, this suggestion was rejected at trial. It was not pursued in this Court and can be ignored.[23](2004) 89 SASR 572 at 574 [2] per Doyle CJ, 581 [52] per Gray J. The respondent entered the appellant's premises wearing slip-on shoes. She walked towards the trestle table. To do this, she had to cross the divide in the concrete slabs. An object caught her eye, presumably one of the garden or other items for sale on the trestle table. At that point, her right foot rolled on the elevation of one concrete slab as it adjoined the adjacent slab. The respondent, a woman then aged 53, fell towards the ground, touching it but then regaining her footing. In the course of this motion, she felt a crack in her right foot. This was later diagnosed as having caused a fracture.The decision at first instance The respondent sued the appellant in the Magistrates Court of South Australia claiming damages for negligence. At trial, the appellant's counsel successively suggested that the respondent had fallen on the public footpath, at another point in the forecourt or in or near a drain hole. All of these suggestions were rejected. The magistrate accepted the veracity of the respondent's version of events and was unimpressed by evidence tendered in the appellant's case.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GLEESON CJ
(dissent)
KIRBY J
(dissent)
HAYNE J
CALLINAN AND HEYDON JJ
(dissent)
The magistrate concluded that the appellant, having invited visitors such as the respondent who would be unfamiliar with the premises to enter the forecourt and, having placed goods in a position where they could distract attention from the unevenness of the driveway, owed a duty of care to prevent injury from reasonably foreseeable hazards. The magistrate also concluded that simple and inexpensive steps could and should have been taken to diminish, or eliminate, the particular hazard presented to the respondent. He found that such steps included placing a strip of paint along the uneven sides of the slabs to draw attention to them or placing the trestle table over the expansion joint so that persons, such as the respondent, approaching the table, would not have to traverse the uneven surfaces. Accordingly, the magistrate entered judgment in favour of the respondent for $24,464. He rejected the defence of contributory negligence. One might say an unremarkable outcome to an unremarkable case. But, truly, these are remarkable times for the tort of negligence in Australia.The decisions of the Supreme Court of South Australia Decision of the single judge:The appellant appealed to the Supreme Court[24]. In that Court, Besanko J reversed the finding of the magistrate. In his reasons, Besanko J considered that the respondent's case was most closely analogous to the decision of this Court in Ghantous v Hawkesbury City Council[25]. That was a case where an elderly pedestrian sued a local government authority for negligence in respect of the maintenance and upkeep of a public footpath. The plaintiff, Mrs Ghantous, who had moved to the side of the footpath in question, slipped on a verge of 50 mm which had developed at one point where the footpath joined the nature strip. She fell and injured herself. Besanko J applied the following statement in the joint reasons in Ghantous of Gaudron, McHugh and Gummow JJ[26]:"As Callinan J points out in his reasons ... 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."[24]Pursuant to the Magistrates Court Act 1991 (SA) s 40(1).[25](2001) 206 CLR 512. See (2004) 88 SASR 162 at 167 [20].[26](2004) 88 SASR 162 at 167 [22] referring to (2001) 206 CLR 512 at 581 [163]. Extrapolating from this statement, which he regarded to be a legal principle of general application, Besanko J found that the duty of care of the occupier of a domestic property did "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 … to notice and avoid"[27]. Applying this finding to the case, Besanko J held that the unevenness at the point at which the respondent had fallen "was not an uncommon or unexpected feature of a domestic property, and it was clearly visible and obvious"[28]. His Honour accepted that different considerations might arise where a defendant was conducting a commercial enterprise[29]. But he considered that the instant case was not to be so classified and that the appellant's 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"[30], emphasising that the property was at all times a domestic property. Accordingly, he declined to "expand the scope of the duty of care so as to include within it the unevenness at the point where the plaintiff fell"[31].[27](2004) 88 SASR 162 at 169 [34].[28](2004) 88 SASR 162 at 171 [42].[29](2004) 88 SASR 162 at 171 [43]. [30](2004) 88 SASR 162 at 171 [43].[31](2004) 88 SASR 162 at 172 [44].