O'Hare, Catherin v Garvey, John and Garvey, Maureen
[2009] VCC 1473
•14 September 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES
Case No. CI-08-00532
| CATHERINE O’HARE | Plaintiff |
| v | |
| JOHN GARVEY | Defendants |
| and MAUREEN GARVEY |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 25 August 2009 |
| DATE OF JUDGMENT: | 14 September 2009 |
| CASE MAY BE CITED AS: | O’Hare, Catherin v Garvey, John & Garvey, Maureen |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1473 |
REASONS FOR JUDGMENT
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Catchwords: NEGLIGENCE – duty of care – occupier’s liability – personal injury – the dog lying on a dark rug in a darkened hallway of the defendants’ home – whether the lack of lighting and the presence of the dog create a foreseeable risk of injury – necessity to consider Part X of the Wrongs Act 1958 – before considering Part IIA relevant to occupier’s liability: Wrongs Act 1958, sections 14 B(3) and (4), and sections 44, 48, 49, 50 and 51.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Riordan | Faram Ritchie Davies |
| For the Defendants | Mr R Dyer | Sparke Helmore |
| HIS HONOUR: |
Introduction
1 The plaintiff commenced a proceeding by Writ filed 15 February 2008 seeking to recover damages for injuries she suffered on 23 February 2005 at the premises of the defendants.
2 The causes of action pleaded by the plaintiff in her Statement of Claim are a breach of the duty she alleges the defendants owed her as occupiers of the premises, and in negligence.
3 By their Defence filed 25 July 2008, the defendants denied any breach of any duty of care owed to the plaintiff, and if the duty of care was owed and was breached by the defendants, that the plaintiff was guilty of contributory negligence.
4 Mr J Riordan of counsel appeared for the plaintiff. Mr R Dyer of counsel appeared for the defendants.
5 The plaintiff adduced the following evidence:
• The plaintiff gave evidence and was cross-examined; • Therese Elizabeth Selleck gave evidence and was cross-examined; • The plaintiff tendered the following documents:
ƒ sketch floor plan of 22 Dunloe Avenue, Mont Albert: Exhibit A ƒ eight colour photographs of the interior of 22 Dunloe Avenue, Mont
Albert: Exhibit B.
6 The defendants adduced the following evidence:
• The defendants gave evidence and were cross-examined; •
The defendants tendered the report of Dr Watson, lighting engineer, dated 23 April 2009: Exhibit 1.
The Background Facts
7 The plaintiff was born on 8 March 1951. She is now fifty-eight years of age. She resides in Shepparton.
8 The second defendant, Maureen Garvey, is the plaintiff’s older sister. The first defendant, John Garvey, is the husband of the second defendant and the brother-in-law of the plaintiff.
9 In 2005, the defendants resided at 22 Dunloe Avenue, Mont Albert North. They had resided there from about 1973.
10 The mother of the plaintiff and the second defendant suffered a fall, requiring hospitalisation in Melbourne. The plaintiff made an arrangement with the defendants to stay at their home on 22 and 23 February 2005 for the purpose of visiting her mother in Melbourne.
11 The defendants’ home was described as a Californian bungalow. It is a home in which the defendants raised their five children. It is a home which the plaintiff had visited on many occasions, and indeed, one of her children, a boy named Ben, had resided there for some weeks with the defendants. The plaintiff was relatively familiar with the defendants’ home as a result of the occasions on which she had either visited or stayed in their home.
12 The defendants are undoubted dog lovers. In February 2005n they owned two dogs. One was an American bull terrier/Staffordshire cross and the other was a German shepherd/Rottweiler cross. The defendants allowed the dogs to have the run of their house.
13 The first defendant described the extent to which the dogs were allowed to have the run of their house by reference to the events leading up to the occurrence of the plaintiff’s injury. He was watching television in the lounge room sitting on a couch with one of the dogs lying on the couch with its head on his lap. At that time the other dog was sitting under the dining room table at the feet of the second defendant while she sat at the dining room table in the dining room.
14 The plaintiff said that she knew the defendants had two dogs and that they were given the run of the defendants’ home.
The Incident
15 Mr Riordan tendered a sketch of the floor plan of the defendants’ home[1] which illustrated rooms in the defendants’ home which were relevant to the events which led up to the occurrence of the incident which resulted in the plaintiff suffering injury. The plaintiff and the defendants used the sketch in the course of giving their evidence.[2]
[1] Exhibit A
[2] A copy is annexed to this Judgment
16 If it is assumed that the configuration of the sketch is north-south, then the lounge room where the first defendant was watching television is to the north- east. There is a door connecting the lounge room to a hallway which runs down the centre of the defendants’ home, and another connecting the lounge room to the dining room.
17 The dining room is to the eastern side of the defendants’ home and to the south of the lounge room. It has a door connecting it to the lounge room and another to the hallway.
18 At some time late in the evening of 23 February 2005, the first defendant was in the lounge room watching television. He left the lounge room and had a spa bath. He said goodnight to the second defendant and the plaintiff, and entered the main bedroom which is at the front of the defendants’ home and to the west. He entered it from the hallway.
19 The first defendant believes that he left the lounge room at about 10.30 pm. At that time the second defendant was sitting at the dining room table in the dining room attending to some work relevant to her occupation as a school teacher. She said that the dining table was not east-west as illustrated in the sketch, but north-south. The plaintiff was sitting in the dining room at a computer desk which was facing south at a front window.
20 At some time leading up to about 11.40 pm, the second defendant told the plaintiff that she intended to have a spa bath and then go to bed. The plaintiff responded by saying that she wanted to use the bathroom first.
21 It was at that stage that the plaintiff alighted from the chair on which she was sitting at the computer desk and turned to her right and walked towards an open doorway leading into the hallway. The doorway comprised two doors. The right-hand door was closed. The left-hand door was open.
22 The plaintiff said that she took two steps into the hallway (about one-and-a- half metres) when she nudged something with her foot which she said was one of the defendants’ dogs. She said that it was her impression that the dog was lying in a north-south configuration approximately opposite the doorway leading from the hallway into the main bedroom. The plaintiff said that she did not see the dog before nudging it with one of her feet. The plaintiff said that when she entered the hallway it was in darkness.
23 The plaintiff said that after nudging the dog with one of her feet she saw it stand up and she heard it yelp. The plaintiff said that because she had picked up forward momentum she tried to leap over the dog. She was unsuccessful in doing that. She struck the wall with her left arm and then fell onto her right knee and her left side.
24 The plaintiff said that she had walked up and down the hallway on two occasions that night prior to the incident occurring. On those occasions the hallway light was off.
25 Mr Riordan tendered eight photographs which illustrated the hallway and part of the dining room.[3] The photographs were used by the plaintiff and the defendants in the course of giving their evidence.
[3] The photographs are numbered. For convenience sake I will refer to the photographs by the number typed at the top of each of them.
26 Photograph 3 shows the open doorway leading from the dining room into the hallway. The computer desk where the plaintiff was sitting was situated behind the photographer. In the distance and across the hallway is the doorway leading into the main bedroom.
27 Photograph 6 was taken facing south towards the front doors of the defendants’ home. To the left is the open door through which the plaintiff entered the hallway. To the left of the front doors is the bottom of a meter box and light switches. These are also shown in Photograph 7.
28 Photographs 4, 5 and 6 illustrate the hallway. Photograph 5 was taken facing north. To the right-hand side is a hall stand. The door at the end of the hallway is a linen cupboard. The hallway then takes a left-hand turn and continues on, passing the bathroom door. Photograph 4 is a closer view of the hall stand, linen cupboard door, and the point where the hallway takes a left-hand turn.
29 Photographs 1 and 2 were meant to demonstrate the position in which the plaintiff was found by the first defendant lying on the floor of the hallway. However, the plaintiff said that she fell at a point consistent with what is shown in photograph 1, but a little further south and more in a north-south configuration rather than on an angle as shown in both photographs.
30 The only other matter of importance shown in the photographs are two rugs on the hallway floor which appear to be of a darkish pattern, and according to the second defendant were heavy rugs which did not appear to have been moved by the incident of the plaintiff’s fall.
The Movement of the Dogs
31 The plaintiff said that what she nudged with one of her feet was one of the defendants’ dogs. She was not able to say which of the two dogs it was. She said that when she nudged the dog it gave a yelp.
32 Neither of the defendants were able to say whether either of their dogs were lying on the floor of the hallway immediately prior to the occurrence of the incident. At that time, the first defendant was in bed in the main bedroom, and the second defendant was sitting at the dining room table.
33 The second defendant said that the only occasions she had observed one or both of the dogs lying on the floor in the hallway was at the front doors. She assumed the dogs were gaining the benefit of cool air coming through gaps in the front door.
34 The first defendant said that he had never seen either of the dogs lying on the floor of the hallway. He said that the second defendant had told him that one or both of the dogs had been seen by her lying on the floor of the hallway in front of the front doors. He said it was the second defendant’s belief that the dogs occupied that position to gain the benefit of cool air coming through gaps in the front door.
35 It was very clear from the evidence of the defendants that whether the dogs were observed lying on the floor of the hallway, or indeed anywhere else in their home, the dogs effectively had the run of the house and were not prevented from lying on the floor of the hallway if they wanted to.
36 The defendants said that there had never been an incident involving their dogs causing injury to a visitor to their home.
The Lighting in the Hallway
37 The defendants said that the light was not operating in the hallway on the night when the incident occurred. They both said that it was turned on when visitors entered/exited, or when there was a need to illuminate the linen cupboard at the end of the hallway. It was also very clear to me that the light in the hallway was left off on all other occasions.
38 The second defendant said that she had never shown the position of the light switches in the hallway to the plaintiff. The plaintiff said that she was unaware of the position of the light switches.
39 The second defendant said that the lights illuminating the dining room table were directly above it, and that those lights and the lights above the computer table focused down onto the dining room table and the computer table.
40 The first defendant said that if there was a dog in the hallway in the position described by the plaintiff, that it would have been visible. He said that there was ambient illumination from the lounge room, the bathroom and possibly illumination coming from another bedroom which illuminated the hallway. He said it was illuminated enough to read in the hallway and that it was quite bright.
41 In contrast to the foregoing evidence, the first defendant conceded that in order to see what was in the linen cupboard at the end of the hallway it was necessary to turn on the hallway light. It seems to me to be odd that on the one hand the lighting was as good as he described, yet not good enough to see what one would ordinarily find in a linen cupboard; that is, sheets, pillow cases, towels and like items. None of those items would necessarily need bright lighting to discern what they are.
42 The defendants said that there was a central ceiling light comprising a five- light fitting over the dining room table in the dining room and two small down lights over the computer table. The first defendant described the lights in the dining room as a pendant light with five light fittings. Not all were operating. The light in the bathroom was described by the first defendant as a setting of four lights which also operated as a ceiling heating device. He had removed three of the lights so that only one operated.
43 There seems to be little doubt that the lights in the dining room were on, as was the light in the bathroom. The first defendant was unsure whether he left the lights on in the lounge room. He was certain that he left the television on. The second defendant said that the lights were not on in the lounge room. Therefore, the illumination which the defendants said was available in the hallway came from the dining room and from the bathroom. I do not accept that there was a light on in another bedroom which provided any illumination to the hallway. The evidence given on that score by the first defendant was uncertain.
44 There were other aspects of the first defendant’s evidence which I also found very unsatisfactory, which led me to conclude that his evidence overall was unreliable. I will deal with those matters in some detail below.
45 It seems odd that the first defendant was prepared to describe the illumination in that way because the only point from which illumination came was the dining room through the open door from the dining room into the hallway. The illumination would most probably have come largely from the central ceiling lights because the down lights were small and were focused over the computer desk.
46 If the lounge room lights were off, and on the balance of probabilities I am satisfied that they were off, given the equivocal evidence of the first defendant, and the evidence of the second defendant that they probably were off, the only other illumination would be from the dining room through the doorway into the lounge room and from the lounge room through the doorway into the top of the hallway.
47 I consider the evidence of the first defendant to be very unsatisfactory regarding the illumination in the hallway. Firstly, I do not accept his evidence regarding the extent and quality of illumination in the hallway. Secondly, if the illumination was that good, then it is surprising that the second defendant’s evidence was not as demonstrative on that issue as that of the first defendant. I considered her evidence on that score to be more consistent with the evidence of the plaintiff, and certainly absent any florid exaggeration which accompanied the first defendant’s description of the extent and the quality of the illumination in the hallway by illumination from elsewhere in the defendants’ home.
48 I accept the plaintiff’s evidence that when she alighted from the chair in front of the computer desk she went from a well-lit room into a darkened hallway with darkish rugs on the floor on which a dog with a dark coat was lying approximately outside the doorway of the main bedroom.
49 I accept that what illumination was present from the dining room and the bathroom would have been limited, given the position of the ceiling lights in the dining room over the dining room table and over the computer table, and the fact that they were focused downwards over the two tables, according to the second defendant. Additionally, the position of those lights relevant to the nearest doorways connecting to or adjacent to the hallway would, as a matter of inference, not have thrown a significant amount of illumination into the hallway.
50 Logically, what illumination there would have been from the doorway used by the plaintiff to enter the hallway would have been limited relevant to the point where the plaintiff nudged the dog with one of her feet. It is clear from her description of her movements that after walking through the doorway and taking two steps she had in fact turned partly to the right and was closer to the doorway of the main bedroom, and probably entering an area where there was likely to be less illumination coming from the dining room lights. Her body size would have interfered with what illumination there was, because as she walked through the doorway into the hallway the lighting was behind her, so she would have been casting a shadow as she approached the point where the incident occurred.
The Relevant Events following the Incident
51 The second defendant candidly admitted that there was no basis upon which she could contest the account given to her by the plaintiff that the incident occurred in the way described by the plaintiff.
52 The second defendant completed a claim form to NRMA Insurance. On the second page of that form she described the incident in very much the same terms as the plaintiff described it in her evidence. The second defendant said that she wrote down that account because she believed that is what happened as a result of what she was told by the plaintiff. She added that there was no evidence in her possession to prove the contrary.
53 The first defendant made a notation on the claim form. He asked the insurer to note that the plaintiff did not turn on the hallway light, that no one saw the dog, and that it may or may not have been a dog which was a cause of the incident.
54 Mr Riordan asked the first defendant whether he had a view about how the incident occurred which led to the first defendant saying that he thought the plaintiff was in a rush to get to the bathroom and just fell over. He sought to eliminate the dog from being a cause of the incident by describing what he believed their movements were likely to have been. He said that he thought that the plaintiff probably fell over because she was rushing, because she has serious problems with her right knee and because she was overweight.
55 I do not accept the evidence of the first defendant that the plaintiff fell for the reasons he advanced. His thesis has no foundation in the evidence. There is no evidence to suggest that the plaintiff was rushing, nor that she was incapable of walking reasonably despite having serious problems with her right knee, nor is there any evidence to suggest that because she was overweight (about 105 kilograms at the time when the incident occurred) that it caused her to fall.
56 Mrs Therese Elizabeth Selleck is the daughter of the plaintiff. She resided in Shepparton at the time when the incident occurred. After hearing that the plaintiff had suffered injury, she travelled to Melbourne the day after the incident occurred.
57 Mrs Selleck spoke to the first defendant. Mrs Selleck asked the first defendant whether it was the black dog on which the plaintiff had tripped. The first defendant replied by saying that the plaintiff believed she had tripped over the black dog. He pointed to the brown dog and said that it was always under his feet and it was more likely to have been that dog.
58 Mrs Selleck was cross-examined by Mr Dyer who put to her that the conversation did not occur. However, when the first defendant was cross- examined on whether he had that conversation with Mrs Selleck he said he could not remember. I have no hesitation in accepting that Mr Dyer cross- examined Mrs Selleck that the conversation did not occur on direct instructions from the first defendant.
59 I accept the evidence of Mrs Selleck that the conversation did occur. However, Mr Dyer, in effect, cross-examined Mrs Selleck on the basis that it was more of a throwaway line, and was said in the context of sympathy for the plaintiff, rather than being a statement of fact. The first defendant denied that he had ever tripped or fallen over a dog owned by him.
60 Whilst I am satisfied that the conversation did occur, I am not satisfied that the brown dog referred to by the first defendant tended to behave in a way consistent with it getting under people’s feet. My doubt about the truth of what the first defendant said is based upon the context in which the conversation occurred. After listening carefully to the evidence of the first defendant, I concluded that he is a man who speaks effusively, carelessly and with exaggeration. It would not surprise me at all that he spoke to Mrs Selleck in the way she described.
61 The evidence of the first defendant concerning the occurrence of the incident leaves me in doubt about the reliability of his evidence. Where it conflicts with the evidence of the plaintiff and the second defendant, I prefer their evidence.
The Expert Evidence
62 Mr Dyer tendered the report of Dr Watson with the consent of Mr Riordan. Inherent in the consent given by Mr Riordan to the tender of the report was an acceptance that Dr Watson is an expert in lighting and electrical engineering capable of giving expert evidence in those fields of endeavour.
63 Dr Watson was engaged by the solicitors for the defendants. He visited the defendants’ home on 31 March 2009 between the hours of 6.30 pm to 8.00 pm. It would appear from the body of his report that he replicated the circumstances of the incident and then made lighting measurements using an LMT Pocket-Lux illuminance meter.
64 Dr Watson recorded the illumination in two tables in the body of his report relevant to the lounge room and the illumination in the hallway with the lounge room door closed and with it open.[4]
[4] Paragraphs 19-21 of his report
65 In the course of making a visibility appraisal,[5] he made the following observations:
[5] Paragraphs 22-24 of his report
“23
My visibility appraisal started by turning from the computer desk and looking towards the front room door[6] leading to the hall. I could identify the open din[n]ing room door, the gold carpet trim at the door opening, the pattern on the vinyl floor covering in the hall and the patterns on the two carpet mats in the hallway all as easy visual tasks. After moving to the front room/hall door I turned right and looked along the hall. I was aware that the area within the hall, adjacent to the front room doorway, was reasonably bright due to the spill light from the front room lighting. The area immediately ahead and the hall was much less bright compared to the area adjacent to the front room door. I could identify the hall table to my right and the pattern on the carpet as difficult visual tasks. I then looked ahead towards the end of the hall and I could identify the pattern on the carpet together with details on the wall of the second part of the hall leading to the bathroom as easy visual tasks.
24
During the final stage of the visibility appraisal one of the household dogs walked into the hall and stood approximately halfway along the hall then walked towards the front room door. During that time I observed that identifying a dark coloured dog in the mid section of the hall is a difficult visual task compared to identifying the dog when located close to the front room door when it was assessed as an easy visual task.”
[6] Dr Watson’s reference to the front room door is a reference to the door leading from the dining room into the hallway through which the plaintiff walked just prior to the occurrence of the incident.
66 In the part of his report devoted to a discussion of the evidence he collected when he visited the defendants’ premises and the testing of the lighting he undertook, he repeated the observation he previously made concerning the difficulty in identifying a dark-coloured dog in the mid section of the hall.[7]
[7] Paragraph 31
67 Dr Watson then referred to the transition time between a person within a high ambient illuminance and the period of time in adjustment of their eyes when that person moves into another area where the ambient illuminance is much lower. He concluded that for several seconds that person would experience increased difficulty in identifying objects and details within the darker area where there would be a lower contrast existing between objects.[8] He then made some observations regarding the impact upon the plaintiff of sitting at the computer desk with high ambient illuminance and entering the hallway where the ambient illuminance was much lower.
[8] Paragraph 32-33
68 On the basis that the incident occurred approximately adjacent to the front room/hall door, Dr Watson concluded that identifying a dog lying on the hallway floor would be an easy visual task.
69 The plaintiff was asked to mark the sketch where the incident occurred. The copy of the sketch on which she made that mark was not tendered in evidence. However, after making the mark on the sketch it was shown to me. The point at which the plaintiff made that mark was not opposite the door between the dining room and the hallway. It was further north.
70 The northernmost rug in the hallway is illustrated on the sketch by a rectangular hatched area. The mark the plaintiff made on a copy of the sketch was to the north of the southern end of that rug and approximating with the prolongation of the southern door jamb of the main bedroom across the hallway.
71 The first defendant measured the dimensions of the hallway. He said it was about 6 feet wide and about 14 feet in length. It occurs to me that the incident described by the plaintiff in her evidence and on the sketch is about a quarter of the way north of the front door and not opposite the door between the dining room and the hallway where Dr Watson referred to there being a spill of illumination from the dining room.
72 Inevitably these are matters of imprecision, but what struck me about the plaintiff’s evidence combined with the observations made by Dr Watson is that the plaintiff was in high ambient illumination while she sat in front of the computer at the computer desk.
73 The plaintiff said that she alighted from the chair at the computer desk and turned to her right and walked through the door between the dining room and the hallway and commenced turning north to head up the hallway. It is unlikely that the movements just described would have taken more than two or three seconds. In that period of time the plaintiff’s sight would have been somewhat impaired, as described by Dr Watson, because she was entering a lower ambient illuminance from a high ambient illuminance. Additionally, the plaintiff was entering a part of the hallway which Dr Watson described as presenting a difficult visual task identifying even the hall table and the pattern of the rug.
Findings of Fact
74 I accept the plaintiff’s evidence that a short time prior to the occurrence of the incident she had a short conversation with the second defendant about using the bathroom before the second defendant.
75 The plaintiff alighted from a chair at the computer desk, turned to her right and walked through the door between the dining room and the hallway.
76 The hallway light was off. There was some ambient illuminance spilling into the hallway through the open door leading from the dining room illuminating the area immediately in front of that doorway.
77 The plaintiff probably took two steps and began turning right as she entered the hallway, and, at that point she marked on the sketch, one of her feet nudged the dog lying in a north-south configuration approximately opposite the doorway leading into the main bedroom.
78 The plaintiff was committed to forward movement. She attempted to leap over the dog. The dog rose up and made a noise consistent with a yelp. The plaintiff’s forward momentum was such that she fell forward, striking her left arm against the wall, and subsequently falling heavily on to the floor of the hallway.
79 I reject the evidence of the first defendant that the ambient illuminance in the hallway was as bright as he described. It is contradicted by Dr Watson, and also by the plaintiff.
80 I also reject the evidence of the first defendant regarding his speculation as to how he believes the plaintiff came to fall on the hallway floor that night.
81 I accept the plaintiff’s evidence that while she had experienced serious problems with her right knee, which required her to be careful when on her feet, the incident did not occur as a consequence of any impairment of her gait nor due to her weight.
82 I accept the plaintiff’s evidence that the hallway light was off during the evening leading up to the occurrence of the incident. I accept that the plaintiff walked up and down the hallway on two prior occasions and on each occasion the hallway light was off. I accept the defendants’ evidence that it was their invariable practice to leave the hallway light off save in limited circumstances when they had guests entering/exiting their home or when they needed extra illumination to look inside the linen closet.
83 I reject the first defendant’s evidence that it was unlikely that one of the defendants’ dogs would have taken up a position outside of the door of the main bedroom. It is not the evidence of the second defendant, who had observed at least one of the dogs at the front door at various times. It is not consistent with the observation of Dr Watson, who observed a dog to walk down the hallway on the occasion when he visited the premises for the purpose of the compilation of his report.
The Legal Matrix
84 Mr Riordan submitted that the plaintiff’s case fell for determination by reference to Part IIA of the Wrongs Act 1958 (“the Act”). He submitted that those provisions are “stand-alone” provisions. He made that submission in response to a submission made by Mr Dyer that if the plaintiff could validly bring her proceeding under Part IIA then I must have regard to Part X of the Act.
85 The competing submissions of Mr Riordan and Mr Dyer require me to determine what the legislature intended by the introduction of the provisions under Part X and the extent to which an occupier’s liability claim under Part IIA is governed by those provisions.
86 Section 14B(3), and the considerations in subsection (4), establish the nature of the duty of care and the standard of care that a plaintiff is required to satisfy in order to establish that a breach of the duty of care has occurred. So much is clear from section 14B(1) which is in the following terms:
“The provisions of this Part apply in place of the rules of the common law which before the commencement of the Occupiers’ Liability Act 1983 determined the standard of care that an occupier was required to show towards persons entering on his premises in respect of dangers to them.”
87 It must follow, therefore, that whether a duty of care is owed to a plaintiff by an occupier is to be determined by the rules of the common law, and that seems to be reinforced by subsection (2):
“Except as is provided by subsection (1) the rules of common law are not affected by this Part with respect to the liability of occupiers to persons entering on their premises.”
88 This was considered by the Court of Appeal in the Secretary to the Department of Natural Resources & Energy v Harper.[9] The Court of Appeal observed:
“It was common ground before us, as it was below, that the appellant was under a duty of care both at common law and as an occupier pursuant to Pt IIA of the Wrongs Act 1958 and that the requisite standard of care was essentially the same in both cases. But there is a question whether the standard of care to be observed by an occupier at common law, as ultimately enunciated definitively by the High Court in 1987 in Australian Safeway Stores Pty Ltd v Zaluzna, and to that extent the common law duty itself, can co-exist with the standard of care enacted by subs (3) of s 14B of the Wrongs Act in place of the rules of common law which determined the standard of care before the commencement of the Occupiers’ Liability Act 1983, a date admittedly a few years earlier. It may be that the rules of common law ‘with respect to the liability of occupiers’ which (except in relation to the standard of care) are preserved by subs (2) are confined, or refer primarily, to those relating to the other elements of the cause of action, namely, causation and damage.”[10]
[9] (2000) 1 VR 133
[10] Paragraph 39
89 It is the Court of Appeal’s reference to section 14B(3) constituting the standard of care that is consistent with the interpretation of Part IIA which I think it should be given. Furthermore, the Court of Appeal later referred to the question raised under section 14B(3) as calling for a determination of “what care in all the circumstances is reasonable to avoid injury or damage of the kind mentioned”.[11] I interpret the reference to “care” as being shorthand for standard of care.
[11] Paragraph 40
90 Section 44, under Part X, makes it clear that if the plaintiff can establish that a duty of care is owed and that the provisions of Part IIA apply, then Part X must apply:
“This Part applies to any claim for damages resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise.”
91 The plaintiff’s claim for damages, while governed by the common law in terms of whether a duty of care was owed to her, is nonetheless a claim for damages under statute; that is, under Part IIA.
92 Therefore, the plaintiff must satisfy sections 48, 49, 50 and 51 before an assessment can be made whether there was a breach of the duty of care judged by the standard of care in section 14B(3) and (4).
Part X 93 Section 48(1) is as follows:
“(1) A person is not negligent in failing to take precautions against a
risk of harm unless –
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and (b) the risk was not insignificant; and (c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.”
94 If the plaintiff is not able to satisfy the foregoing test, then the plaintiff’s claim must fail. Therefore, it is necessary to deal with each of the relevant considerations enumerated in paragraphs (a) to (c) individually and then collectively.
95 The first consideration is a question of foreseeability. I find that the risk of the plaintiff suffering injury in the way described by the plaintiff was foreseeable. I find that it was a risk which the defendants knew or ought to have known was present.
96 The defendants knew that the hallway was in a darkened state. They knew that the plaintiff had used and would use the hallway to access parts of their home north of the computer desk. They knew that if there was an obstruction in the hallway that the plaintiff would have difficulty discerning it because of the lack of illumination. They knew that their dogs had the run of the house, and that one of them might take up a position in the hallway at the point where it was in a darkened state.
97 The second consideration is one of the significance of the risk. An “insignificant” risk is defined in subsection (3)(a) to include, but not be limited to, a risk which is far-fetched or fanciful.
98 I see nothing insignificant in the risk posed to the plaintiff. It is abundantly clear that entering the hallway and entering that part of the hallway which was in a darkened state, with a dog with a dark coat obstructing her passage along the hallway, was significant. Tripping over the dog was likely to cause the plaintiff to lose her footing and to fall heavily, with a grave risk to her of suffering serious injury.
99 The third consideration is whether a reasonable person in the position of the defendants would have taken precautions against that risk. I find that a reasonable person armed with the knowledge of the defendants that their dogs were free to roam through the house and might take up a position in the darkened part of the hallway would have either restricted the movements of the dogs, knowing of the likely movements of the plaintiff up and down the hallway, or would have done that together with ensuring that there was adequate lighting for her to see her way along the hallway and identify any risks.
100 In determining whether a reasonable person would have taken precautions against a risk of harm, the considerations in section 48(2) are relevant:
“(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) –
(a) the probability that the harm would occur if care were not taken; (b) the likely seriousness of the harm; (c) the burden of taking precautions to avoid the risk of harm; (d) the social utility of the activity that creates the risk of harm.”
101 In the course or dealing with each of the considerations in subsection (1), I have effectively dealt with the further considerations in subsection (2); however, for the sake of completeness, I will deal with each of the further considerations in subsection (2):
• (a) – the probability that the harm would occur if care were not taken The probability is that the incident would have occurred if the defendants had not turned on the lights on the hallway and ensured that one of their dogs was not likely to lie on the darkened rug on the floor of the hallway.
• (b) – the likely seriousness of the harm The likely harm to the plaintiff of tripping over a dog and falling heavily always had a potential to be very serious, and, indeed, that is how it turned out.
• (c) – the burden of taking precautions to avoid the risk of harm The burden on the defendants in ensuring that the hallway light was on and that the dogs were not permitted in the hallway was an insignificant burden when compared to the risk posed to the plaintiff of entering a darkened hallway obstructed by a dog with a dark coat lying on a dark rug on the floor of the hallway.
• (d) – the social utility of the activity that creates the risk of harm
Mr Dyer submitted that to find for the plaintiff would mean that dog owners would be impaired in their desire to relate with their pets in a free and unrestricted way. He submitted that that would amount to a loss of social utility. I reject that submission out of hand. A finding in favour of the plaintiff cannot and does not interfere with the social utility of dog ownership at all, but rather it is a finding based upon the peculiar facts of the defendants’ acts and omissions as occupiers relative to the plaintiff in her character as a person invited onto the defendants’ premises.
102 The next relevant provision is section 49, which is as follows:
“In a proceeding relating to liability for negligence –
(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible; and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done; and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.”
103 Paragraph (a) I assume was intended by the legislature to relate to the reference to burden in section 48(2)(c).
104 It occurs to me that, firstly, the burden on the defendants was insignificant, and secondly, there is no significant additional burden on the defendants in taking the same steps subsequently with other persons who they happen to invite onto their premises.
105 I consider that the principle raised in paragraph (b) is merely a statement of the obvious, and the principle raised in paragraph (c) does not apply because there was no allegation by the plaintiff nor any reliance on any prior conduct of the defendants which might constitute an admission of liability.
106 Section 50 deals with the duty to warn of a risk where the defendants owe the plaintiff a duty of care. It does not apply to the facts of this case because the defendants did not give a warning to the plaintiff of any kind.
107 Section 51 deals with causation. The relevant provisions to the plaintiff’s case are as follows:
“(1) A determination that negligence caused particular harm comprises the following elements –
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation); and (b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).”
108 For the reasons which are set out below, I consider that the defendants were in breach of the duty of care that they owed the plaintiff judged by the standard of care referred to in section 14B(3) and (4). Therefore, their negligence was the cause of the occurrence of the harm suffered by the plaintiff.
109 I consider that it is appropriate for the scope of the defendants’ liability to extend to the harm suffered by the plaintiff. Section 51(4) requires that in determining the scope of liability I am to consider whether or not and why responsibility for the harm should be imposed on the defendants. I will deal with each of those matters below when dealing with section 14B(3) and (4).
110 For the sake of completeness, section 51(2) and (3) are not relevant to the plaintiff’s case.
Section 14B(3) and (4)
111 Therefore, having dealt with each of the provisions in Part X, it is now necessary to return to section 14B(3) to determine whether the defendants were in breach of the duty of care which they owed to the plaintiff by failing to take such care as in all the circumstances was reasonable to see that the plaintiff, who was on the premises, was not 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.
112 In the course of analysing the facts of the plaintiff’s case against the considerations in Part X, and in the context of the findings I have made earlier in these reasons, the conclusion I have reached is that the defendants did not take the degree of care which was reasonable to see that the plaintiff was not injured.
113 Having determined that a duty of care was owed by the defendants to the plaintiff, and that the incident occurred as a result of the defendants not taking the care judged by the standard of care referred to in section 14B(3), it is now necessary to determine whether the defendants discharged the duty of care having regard to the relevant considerations referred to in section 14B(4).
114 Quite clearly paragraphs (fa) and (fb) do not apply, and as to the balance:
• (a) – the gravity and likelihood of the probable injury The lack of lighting in the part of the hallway where the incident occurred together with a dog with a dark coat lying on a rug with a dark pattern rendered it likely that a fall would cause the plaintiff a serious injury.
• (b) – the circumstances of the entry onto the premises The defendants were the occupiers of the premises. The plaintiff was a person whom the defendants invited to stay at their premises. These circumstances support the conclusion that the defendants controlled the premises and the circumstances of the plaintiff’s use of the premises, and therefore, the defendants should have taken reasonable steps to eliminate the risk posed to the plaintiff when she entered the hallway.
• (c) – the nature of the premises The defendants’ premises is their family home which they have occupied for some 32 years. The standard which applies to the way which premises of that kind are inspected, maintained and kept is in contrast to a commercial premises where one might expect a higher standard of inspection, maintenance and upkeep. Whilst the presence of ordinary risks in a home is to be expected and tolerated, the combination of a darkened hallway and an obstruction constituted by a dog with a dark coat lying on a dark rug are not the sort of ordinary risks which should be expected or tolerated.
•
(d) – the knowledge which the occupier has or ought to have of the likelihood of persons or property being on the premises
The defendants knew that the plaintiff was present in their home and had used and would continue to use the hallway as a means of access to and from the dining room, and therefore, they had knowledge that it was necessary to maintain the hallway in a condition free of risks likely to cause injury to the plaintiff.
• (e) – the age of the person entering the premises The plaintiff is an adult with experience in life, and the capacity to identify expected and tolerated risks in a home.
• (f) – the ability of the person entering the premises to appreciate the danger The risk posed by the darkened hallway and the presence of a dog with a dark coat lying on a dark rug in the hallway concealed the risk of injury from the plaintiff, depriving her of an opportunity to make an assessment of the changed circumstances in the hallway when contrasted with its unobstructed state when she used the hallway on two previous occasions.
•
(g) – the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person
The burden on the defendants in ensuring that the hallway light was on and that the dogs were not permitted in the hallway was an insignificant burden when compared to the risk posed to the plaintiff of entering a darkened hallway obstructed by a dog with a dark coat lying on a dark rug on the floor of the hallway.
115 On the basis of my analysis of the facts, my findings of fact, the duty of care owed by the defendants to the plaintiff, and the standard of care which applies, I have concluded that the defendants were in breach of their duty of care owed to the plaintiff.
Contributory Negligence
116 Section 26(1)(b) of the Wrongs Act 1958 provides that where the plaintiff suffers damage as a result partly of her failure to take reasonable care and partly as a result of the wrong of the defendants, the damages recoverable by the plaintiff must be reduced to the extent that I consider it is just and equitable to do so, having regard to the plaintiff’s share in the responsibility for the damage.
117 Section 62(1) provides that I am to apply the same principles in determining any contributory negligence on the part of the plaintiff as are applicable in determining whether the defendants had been negligent. For the purpose of undertaking that task, subsection (2) provides that the standard of care is that of a reasonable person in the position of the plaintiff and is to be determined on the basis of what the plaintiff knew or ought to have known.
118 Both Mr Riordan and Mr Dyer submitted that the aggregate effect of these provisions is to leave the common law test of contributory negligence unaffected. I consider that to be correct.
119 In Podrebersek v Australian Iron & Steel Pty Ltd,[12] the High Court made the following observations relevant to the approach to be taken when considering a question of contributory negligence:
“The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e., of the degree of departure from the standard of care of the reasonable man ... and of the relative importance of the acts of the parties in causing the damage ... It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.”[13]
[12] (1985) 59 ALR 529
[13] 494
120 In a relatively recent decision of the Court of Appeal of Flatman v Epps[14] it dealt with whether the judge at trial had misdirected himself on the issue of contributory negligence. Redlich JA observed that it was for the defendant to show, on the balance of probabilities, that the plaintiff would have foreseen that she might be exposing herself to risk of injury and that she had not acted as a reasonable and prudent person would have acted.[15]
[14] [2006] VSCA 183
[15] Paragraph 15, and the cases cited by Redlich JA as authority for that proposition
121 The allegations of contributory negligence were reduced by Mr Dyer to the following:
“(b) Failing to keep any or any adequate lookout; (c) Failing to watch where she was walking; (d) Failing to turn on a light switch; (e) Failing to inform the defendants of any concerns she had in relation to the dogs.”
122 The onus of proof with respect to contributory negligence is borne by the defendants. It is for them to prove, on the balance of probabilities, that the plaintiff should have foreseen that entering the hallway exposed her to the risk of tripping on one of the defendants’ dogs if she had not acted as a reasonable and prudent person would have.
123 In determining whether the defendants have discharged the onus which they bear, it is necessary to undertake the comparison of culpability referred to in Podrebersek (supra).
124 The risk to which the plaintiff was exposed was created by the defendants in permitting the plaintiff to use the hallway in a darkened state consistent with the way in which they used the hallway, and in failing to restrict the movement of their dogs so that they did not present an obstruction to the plaintiff when she walked into the hallway.
125 There was nothing unreasonable on the plaintiff’s part in copying the way in which the defendants used the hallway. She had previously entered the hallway when it was in a darkened state on two occasions on the night when the incident occurred, as had the first defendant, and probably the second defendant.
126 The plaintiff had no reasonable expectation, using the degree of foresight expected of her, that there was any necessity to turn on the hallway light or to look out for one of the defendants’ dogs lying on the floor of the hallway. There was no basis for the defendants to assert that the plaintiff should have conducted herself differently.
127 For these reasons I do not accept the submissions made by Mr Dyer that the defendants have discharged the onus which they bear to prove that the plaintiff was guilty of any contributory negligence.
Conclusion
128 On the basis of the foregoing reasons, findings and conclusions, I consider that the defendants owed the plaintiff a duty of care which they breached, and that the injuries suffered by the plaintiff occurred as a result of that breach.
129 I will now hear the parties on what orders are required.
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