Statesman Trading Pty Ltd v Robert Joseph Riddle

[1982] FCA 83

Re: STATESMAN TRADING PTY. LIMITED
And: ROBERT JOSEPH RIDDLE
No. ACT G42 of 1981
Appeal

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Fox J.
Blackburn J.
Ellicott J.

CATCHWORDS

Appeal from an Order of the Supreme Court of the Australian Capital Territory - Personal Liability - Duty Owed by an Occupier to an Invitee - Invitee's Knowledge of the Premises - Unusual Danger - Occupier's Knowledge of the Danger - Liability of Occupier.

HEARING

CANBERRA

#DATE 18:5:1982

ORDER

The appeal be dismissed with costs.

JUDGE1

We have considered this matter and I will deliver my judgment now.

This is an appeal from a decision of the Supreme Court of the Australian Capital Territory (Kelly J) in which the Court found for the plaintiff, the present respondent. The plaintiff alleged a breach of the duty owed by an occupier to an invitee. There is no question that the plaintiff and the defendant stood in that relationship. It is not contended that there was any contributory negligence on the part of the respondent. The appeal relates to issues of liability and damages.

The respondent was injured on the night of 1 June 1978 when he fell down some stairs in the front of a hotel conducted by the appellant and in which the respondent had been drinking. He was leaving with some companions.

In front of the main door through which he was departing was a large rubber mat which was slightly below the level of the surrounding carpet. The mat was 6 feet wide and 30 inches across. Surrounding it on three sides - that is to say, on the inside nearest to the bar and on the two shorter sides - was a metal rim. On the side near the door the mat butted on to a tile ledge which ran under the door and on the far side met the front porch of the hotel. The mat was here also slightly below the ledge.

The plaintiff tripped, lunged through the door, was unable to obtain a secure footing on the porch, which was wet, and in the relative darkness on the outside was unable to grasp in time the rail of the stairs down which he fell. He fractured his left arm, leaving him with a permanent disability.

It should be concluded on the balance of probabilities that the plaintiff tripped on some object and did not, as it were, trip himself. However, his Honour was of the view that the evidence did not enable a finding to be made as to what precisely it was on which he tripped. It was involved in his Honour's decision and was certainly a conclusion open to him that the plaintiff had tripped on something on or near the mat. On this matter his Honour said:

"It does not, in my opinion, matter that the plaintiff was unable to say precisely what was the thing that caused him to trip on the mat. I am satisfied that there was present an unusual danger in the mat area and I am satisfied that he tripped as a result of the presence of danger in the mat area and therefore that, on the balance of probabilities, he tripped as a result of the presence of the danger."

I do not think it is sufficient to find that there was a danger in the mat area unless it can be said that the whole area was a danger, that is to say, an unusual danger of which the occupier knew or ought to have known. It is also to be remembered that even then the liability of an occupier is not absolute. His duty is to take reasonable care to avoid injury to invitees by reason of the danger.

It is nevertheless possible in this case, consistent with the finding of the learned judge that there was an unusual danger, to decide on the balance of probabilities that one or another of two specific dangers existed which were known or ought to have been known to the occupier. One is what has been described as a lip which was created by the metal rim on the inner side rising above the carpet. There was evidence of the existence of this rim, and the fact that people had tripped on it. It seems to have constituted an unusual danger in the relevant sense.

There is, in my view, one and only one other possibility. The front edge of the carpet nearer the street was three-fifths of an inch below the ledge to which I have referred. That ledge presented a perpendicular face to the mat. It was at the commencement of the doorway, and for that reason less likely to be apparent to a person leaving the premises. The way in which the plaintiff fell is consistent with his having tripped on that edge. It is, I think, a reasonable inference that this was both an unusual danger and the cause of the fall.

The physical situation was known to the appellant and there is evidence of others having tripped from time to time on or in the vicinity of the mat. This goes to the question of knowledge on the part of the occupier.

As I have said, so to find is consistent with his Honour's ultimate findings. His Honour found in favour of the plaintiff without, in my view, sufficiently addressing his mind to specific matters. On the evidence it seems to me that the two possibilities mentioned are the only ones which would support his judgment, and I believe the judgment should be supported by reference to them. I am therefore of the view that, on the question of liability, the appeal fails.

The respondent was at the time of the injury a Sergeant First Class in the Australian Capital Territory Police Force. The injury to his arm meant that he suffered a loss of about 15 degrees of extension and was thereby left permanently disabled. He did, for a short while, resume light duties with the police force but steps were then in train to establish his future fitness. He was medically examined. There was some uncertainty about what then followed. On one view, which seems preferable, he was found to be unfit for all but light duties, they being of a desk work nature, and the Commissioner decided that, there being no appropriate long term light duties, the plaintiff should be retired. He was in fact retired by notice given on 1 March 1979.

The other view is that on some medical prognosis he himself decided that he could not continue. If this were the case, his decision was a reasonable one. He cannot for purposes of the assessment of damages be treated as if he should have continued in the police force. The prospect he had of promotion to commissioned rank had gone. Counsel for the appellant challenged the learned judge's assessment of damages but only on an assumption contrary to the conclusions I have just mentioned. The challenge therefore fails. In my opinion, the appeal should be dismissed with costs.

JUDGE2

I agree with the order proposed for the reasons that have been stated by his Honour.

JUDGE3

I agree.

The order of the Court is that the appeal be dismissed with costs.