Rough v Grommen

[2005] QDC 108

DISTRICT COURT OF QUEENSLAND

CITATION:

Rough v Grommen [2005] QDC 108

PARTIES:

KRISTIE LEANNE ROUGH
plaintiff
v
HUBERTUS GROMMEN AND MARIA GROMMEN
defendants

FILE NO/S:

BD 4410 of 2003

DIVISION:

Civil

PROCEEDING:

Claim

ORIGINATING COURT:

Brisbane

DELIVERED ON:

13 May 2005

DELIVERED AT:

HEARING DATE:

11 May 2005

JUDGE:

Samios DCJ

ORDER:

Judgment for the plaintiff against the defendants for the sum of $17 500.

CATCHWORDS:

NEGLIGENCE – DANGEROUS PREMISES – OCCUPIER’S LIABILITY - BREACH OF DUTY OF CARE

Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 CON
Borland v Makavskar (2000) QCA 521 CON
Hackshaw v Shaw (1984) 155 CLR 614 CON
Romeo v Conservation Commission of NT (1998) 192 CLR 431 CON
Thomson v Woolworths (Queensland) Pty Ltd (2003) QCA 551 CON
Woods v Multi-Sport Holdings Pty Ltd (2001-2002) 208 CLR 460 CON
Wyong Shire Council v Shirt (1980) 146 CLR 40 CON

COUNSEL:

Mr de Plater for the Plaintiff
Ms Conway for the Defendants

SOLICITORS:

Watling Roche Lawyers for the Plaintiff
Phillips Fox for the Defendants

1. The plaintiff was born on 4 February 1975.

1. There is no issue that on 3 November 2000 the defendants were the occupiers of premises at 1/10 Martha Street, Goodna (the premises).  Further, there existed at the premises at the bottom of the stairs stepping stones.

1. In the Statement of Claim the plaintiff alleges these stepping stones were “uneven and slippery”.  Further, as she was descending the stairs she slipped on the stepping stones and fell and suffered a fractured left foot. 

1. Quantum of the plaintiff’s claim is admitted in the sum of $25,000.

1. There is also no dispute Ms O’Flaherty (then known as Ms McLees) was renting the premises from the defendants.

1. According to the plaintiff she and her partner Ms Hartley arrived at the premises about 6, 6.30 and it was not quite dark.  She fell at about 8 to 8.30 pm.  Ms Hartley said she heard the plaintiff call out “ouch” about 8 to 8.30.  According to the plaintiff and Ms Hartley it was dark.  Ms O’Flaherty on the other hand, while accepting the plaintiff and Ms Hartley may have arrived at the premises as late as 6 o’clock, the plaintiff’s fall occurred about half an hour to 45 minutes later when it was not dark as it was dusk.

1. When the plaintiff gave evidence she accepted the stepping stones were even on the upper surface and were not slippery.  Rather she said her foot slipped in between the gap formed between the stepping stone closest to the stairs of the house and the other stepping stone furtherest away from the house.

1. In the course of the trial a number of issues were pursued.  These included whether the plaintiff on the day of her fall made a comment about bringing legal proceedings to obtain compensation which could be used as a deposit on a house.  Further, what contact the plaintiff and her partner may have had with Ms O’Flaherty following the plaintiff’s fall during which there were discussions about the plaintiff obtaining compensation and inviting Ms O’Flaherty to support the claim in return for a share in the compensation.  Further, the means by which the plaintiff and her partner obtained photographs of the stairs and the stepping stones which Ms O’Flaherty suggested was underhanded.

1. As far as credibility is concerned I was favourably impressed with the plaintiff.  I was not as impressed with her partner, Ms Hartley.  Nevertheless Ms Hartley’s evidence was for the most part consistent with that of the plaintiff.  I was not impressed with Ms O’Flaherty.  Ms O’Flaherty often would not answer the question asked and would add comments that were unnecessary.  I detected Ms O’Flaherty bore animus towards the plaintiff.  I accept the evidence of the plaintiff.  I consider the plaintiff was an honest and reliable witness.

1. I find it was about between 8 pm and 8.30 pm when the plaintiff descended the stairs and her foot slipped on the edge  of one of these stepping stones causing her foot to go down between the first stepping stone and the second stepping stone in the direction in which she was proceeding and causing her to fall backwards and suffer her injuries.  I find it was dark when the plaintiff descended the stairs on the occasion she fell.  I find the stepping stones were not uneven in their surface nor slippery.  I find there was a gap between the two stepping stones and a drop of about 10 cm to the surrounding ground.  I accept the plaintiff was not rushing as she walked down the stairs and on to the stepping stones. 

1. The duty owed by an occupier to an entrant is to take reasonable care to avoid a foreseeable risk of injury to the entrant (Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488).

1. Deane J in Hackshaw v Shaw (1984) 155 CLR 614 at 663 said:

“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”.

1. In Woods v Multi-Sport Holdings Pty Ltd (2001-2002) 208 CLR 460 at 472 Gleeson CJ said:

“Because the concept of foreseeability in the law of negligence has been taken to embrace risks which are quite unlikely to occur, and to mean only that a risk is not one that is far-fetched or fanciful, many of the cases which discuss the approach to be taken by a tribunal of fact in deciding whether there has been a breach of a duty of care speak in terms of balancing the magnitude of the risk with the cost or inconvenience of preventing it.  But, as Mason J pointed out in Wyong Shire Council v Shirt, ultimately the question of fact is what a reasonable person, in the position of the defendant, would do by way of response to the risk.”

1. Further in Woods Gleeson CJ observed (p 473):

“[41]Where it is claimed that reasonableness requires one person to provide protection, or warning, to another, the relationship between the parties, and the context in which they entered into that relationship, may be significant.  The relationship of control that exists between an employer and an employee, or of wardship that exists between a school authority and a pupil, may have practical consequences, as to what it is reasonable to expect by way of protection or warning, different from those which flow from the relationship between the proprietor of a sporting facility and an adult who voluntarily uses the facility for recreational purposes.  I say “may”, because it is ultimately a question of factual judgment, to be made in the light of all the circumstances of a particular case.”

1. Further in Woods which was a case in which the High Court considered the subject of the duty of care of occupiers of premises to those engaged in a sport on the premises Hayne J at p. 502 explained the standard of care required of occupiers as follows:-

“137.  Although conventionally described as a finding of fact, to make a finding that there has, or has not, been a failure to meet a standard of reasonable care requires the tribunal (be it the judge or a jury) to translate the relevant legal principle (that the defendant is obliged to take such care as the reasonable and prudent person would take in the circumstances) into what Fleming described as a ‘concrete standard applicable to the particular case’, and as a process which ‘involves not a determination of fact, but the formulation of a value judgment or norm’.

138.  In undertaking that task the tribunal of fact must first consider whether the reasonable person would have foreseen that his or her conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff.  The risk is foreseeable if not farfetched or fanciful.  The tribunal of fact must then decide what the reasonable person would do in response to that risk.  This latter decision requires attention to various considerations, very important among these being the magnitude of the risk of injury, the probability of its occurrence, the expense, difficulty and inconvenience of alleviating action, and any other conflicting responsibilities the defendant may have. Some of these considerations (and there may be others presented by the facts of the particular case) pull in different directions.  Taking them all into account requires the striking of a balance.”

1. I also refer to what Mason J said in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48

“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.”

1. Although generally an occupier is entitled to expect an entrant will take reasonable care for their own safety the possibility of inadvertence or negligent conduct on the part of an entrant is a relevant consideration (see Kirby J in Romeo v Conservation Commission of NT (1998) 192 CLR 431 at 478 cited with approval by the Court of Appeal in Borland v Makavskar (2000) QCA 521 and per McMurdo J in Thomson v Woolworths(Queensland) Pty Ltd (2003) QCA 551 at para 49.

1. I am satisfied the defendants owed the plaintiff a duty to take reasonable care to avoid a foreseeable risk of injury to the plaintiff.

1. However, whether there has been a breach of the duty of care I must ask myself whether a reasonable man in the defendants’ position would have foreseen that their conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff.

1. On that issue I am satisfied before the plaintiff’s fall the defendants would have foreseen that if the gap between the two stepping stones was not filled in and made level with the surrounding surface of the top of the stepping stones there was a risk of injury to the plaintiff or to a class of persons including the plaintiff descending the stairs in the dark.  I accept the plaintiff’s evidence that notwithstanding there was a light at the top of the stairs it was not in the circumstances very bright. 

1. I then must ask myself what a reasonable man would do by way of response to the risk.  I bear in mind that 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.

1. I accept Ms O’Flaherty and members of her family had used the stairs and stepping stones on numerous occasions without mishap.  I also accept Mr Grommen’s evidence as the landlord he had not received any complaint about the stairs and stepping stones.

1. However, I am satisfied the risk that the plaintiff could suffer injuries the way she did was not far-fetched nor fanciful.  Further, it would have taken little effort to fill in the gap.  Further, it is the darkness in which the stairs may have to be negotiated which is the factor that weighs in the balance to satisfy me some action was required to be taken by the defendants to remove the risk of injury.

1. Therefore, I am satisfied the defendants failed to take reasonable care to avoid a foreseeable risk of injury to the plaintiff.

1. However, I am satisfied the plaintiff failed to take reasonable care for her own safety and was guilty of contributory negligence.  The plaintiff had walked down these stairs on numerous other occasions and must have negotiated the stepping stones on those occasions.  I am satisfied the plaintiff failed to take reasonable care for her own safety by failing to ensure she placed her foot squarely on the stepping stones on this occasion.

1. In all the circumstances I apportion liability, 70% to the defendants and 30% to the plaintiff.

1. Therefore I give judgment for the plaintiff against the defendants for the sum of $17,500.

1. I will hear the parties on the question of costs.