VWA v Monash University
[2016] VSC 178
•22 April 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2014 02296
| VICTORIAN WORKCOVER AUTHORITY | Plaintiff |
| v | |
| MONASH UNIVERSITY | Defendant |
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JUDGE: | McDONALD J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 27, 28 January 2016 and 7,8 March 2016 |
DATE OF JUDGMENT: | 22 April 2016 |
CASE MAY BE CITED AS: | VWA v Monash University |
MEDIUM NEUTRAL CITATION: | [2016] VSC 178 |
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ACCIDENT COMPENSATION — Female worker fell when walking on man-made pathway through a garden bed, sustaining injury — Premises occupied by university — Claim for indemnity by VWA against university in respect of compensation payments made to the worker − Whether there was a breach of occupier’s common law duty and/or statutory duty creating a liability in the university − Whether it was reasonable for the university to take no precautions against the risk of harm posed by the garden path — No breach of duty by university – Application dismissed — Accident Compensation Act 1985, s 138; Occupational Health and Safety Act 2004, s 26; Wrongs Act 1958, ss 14B, 48, 49.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Ruskin QC with Ms C Spitaleri | Wisewould Mahony Lawyers |
| For the Defendant | Mr R Stanley QC with Ms K L Bradey | Colin Biggers & Paisley Lawyers |
HIS HONOUR:
On 1 September 2010, Ms Janis Lonie commenced employment as the manager of the Gryph Inn Bar and Bistro (‘Gryph Inn’) at the Caulfield campus of Monash University. On 6 October 2010, Ms Lonie sustained serious injuries when she slipped and fell on a man-made pathway through a garden bed whilst walking from the Gryph Inn to her car. In late 2015, proceedings in the Supreme Court of Victoria between Ms Lonie and Monash University (‘Monash’) were settled. Ms Lonie was paid $100,000.
The present proceedings involve a claim pursuant to s 138 of the Accident Compensation Act 1985 (‘ACA’) by the Victorian WorkCover Authority (‘VWA’) against Monash for an indemnity in respect of compensation payments which have been, and which will be, paid to Ms Lonie as a result of the injuries which she sustained.
There are two principal issues which fall for determination:
(a) Were the injuries sustained by Ms Lonie on 6 October 2010 caused in circumstances creating a liability in Monash University to pay her damages?[1]
(b) If so, what is the amount which Monash is required to indemnify the VWA in accordance with the formula prescribed by s 138(3) of the ACA?
[1]See s 138(1) of the Accident Compensation Act 1985.
I have concluded that the injuries sustained by Ms Lonie on 6 October 2010 were not sustained in circumstances which created any liability in Monash to pay damages. As such, Monash is not liable to indemnify the VWA in accordance with the formula prescribed by s 138(3) of the ACA.
The facts and evidence
From 1 September 2010, Ms Lonie was employed by Gryph Investments Pty Ltd as manager of the Gryph Inn. Gryph Investments Pty Ltd entered into a lease with Monash of the premises from which the Gryph Inn conducted business. Immediately outside the Gryph Inn there was a concrete stairway, as well as a concrete ramp leading down to Queens Road, an internal road on the Caulfield campus. As part of her employment conditions, Ms Lonie had been provided with a parking space on Queens Road.
A few days after Ms Lonie commenced employment, she accompanied a Monash maintenance employee, ‘Rhaol’, to a building on the other side of Queens Road to obtain furniture for the Gryph Inn. Ms Lonie walked with Rhaol out of the Gryph Inn, down the ramp and across the pathway through the garden bed, thereby taking a short cut to Queens Road.[2] Thereafter, Ms Lonie used the pathway through the garden bed whenever walking between her car and the Gryph Inn. In a typical day she would walk back and forth to her car two to three times.[3] Ms Lonie gave evidence that she used the pathway ‘very frequently’.[4]
[2]Transcript of Proceedings, VWA v Monash University (Supreme Court of Victoria, S CI 2014 02296, McDonald J, 7 March 2016) T118 L1 − T119 L7.
[3]Ibid T119 L19.
[4]Ibid T130 L8.
A bundle of three photographs of the pathway through the garden bed, taken in about October 2010, was admitted into evidence.[5] The photos are annexed to this judgment. The photos show a path of approximately 4.5 metres[6] on a gradual slope. The pathway consists of dirt, tanbark and some twigs.
[5]Exhibit P2: Bundle of three photos taken in vicinity of footpath and ramp way, pictures taken in approximately October 2010.
[6]Transcript of Proceedings, VWA v Monash University (Supreme Court of Victoria, S CI 2014 02296, McDonald J, 7 March 2016) T174 L10.
Ms Lonie gave evidence that prior to 6 October 2010 she had never had any trouble walking on the pathway, irrespective of weather conditions.[7] Ms Lonie had observed ‘all sorts of people students, I would presume teachers, customers, employees within the university’ also using the pathway.[8] When asked why she used the pathway, Ms Lonie responded, ‘It was a quicker route to my car. I’d used it, I felt safe on it, it was just my normal route.’[9] Ms Lonie regarded the path as the normal and natural way to get from the Gryph Inn to her car.[10]
[7]Ibid T121 LL28-29.
[8]Ibid T122 LL5-8.
[9]Ibid T122 LL13-15.
[10]Ibid T130 LL10-11.
A colleague of Ms Lonie, Ms Kula Wells, also gave evidence regarding the condition of the pathway in October 2010. Ms Wells described the path as ‘flat’ and ‘easy to walk over.’[11] Ms Wells never had any trouble walking over the path.[12] She also regularly saw other people using the path.[13] After Ms Lonie’s accident, Ms Wells continued to use the path until December 2012 when it was blocked by three poles with ribbon, which had been erected in front of the pathway.[14] After the poles and ribbon had been erected, Ms Wells did not use the path again. The ribbon ‘was like a caution sign to me so I didn’t use it.’[15] Ms Wells finished working at the Gryph Inn in June 2013.[16]
[11]Ibid T140 LL12-13.
[12]Ibid T141 L30.
[13]Ibid T142 LL13-14.
[14]Exhibit P3: Photo depicting red and white ribbons on three poles taken in December 2012; ibid T143 LL1-2.
[15]Transcript of Proceedings, VWA v Monash University (Supreme Court of Victoria, S CI 2014 02296, McDonald J, 7 March 2016) T143 LL27-28.
[16]Ibid T144 LL11-12.
On 6 October 2010, there were Oktoberfest celebrations taking place in the vicinity of the Gryph Inn. During the morning it had rained. Furniture which had been set up on a lawn adjacent to the Gryph Inn had to be moved under the balcony immediately outside the Gryph Inn. Ms Lonie worked during the morning and then drove home for a shower and to change clothes.[17] The rain had eased off and it was not raining by the time Ms Lonie left work.[18] Ms Lonie returned to work a couple of hours later, crossing the garden pathway without difficulty. Ms Lonie finished work at about midnight. She walked down the ramp and then proceeded to walk down the pathway through the garden bed. When Ms Lonie was about halfway down the path, without warning, her right foot shot back in an instant behind her.[19] Ms Lonie fell forward with her left leg bent backwards underneath her buttocks. As a result of the fall, her t-shirt was ‘a little grubby and a bit damp.’[20] Due to the injuries which Ms Lonie, sustained she has not worked since 6 October 2010.
[17]Ibid T123 LL21-22.
[18]Ibid T125 LL14-15.
[19]Ibid T126 LL15-18.
[20]Ibid T127 LL7-9.
Although Ms Lonie’s injuries were sustained around midnight, the VWA expressly disavowed any contention that the lighting in the vicinity of the pathway was inadequate.[21]
[21]Ibid T108 L3.
In addition to the evidence given by Ms Lonie and Ms Wells, three other witnesses gave evidence relevant to the condition of the pathway.
Mr Ruskin QC led evidence from Mr Bill Contonyannis. Mr Contonyannis has a Bachelor of Engineering and a Masters of Engineering Science in Biomedical Engineering degree.[22] Biomedical engineering is the application of engineering principles to the human body. By reference to the bundle of photographs which are annexed to this judgment, Mr Contonyannis gave evidence regarding the features of the path which he considered would be likely to cause difficulty or danger for a pedestrian. He identified four matters: the variability of the surface (the tanbark and twigs); the variability of the slope at between 10-15 degrees; the variation in the slope left to right; and the fact the pathway was exposed to all weather conditions and could be wet or dry depending on such conditions.[23] In regards to Mr Contonyannis’ evidence that the slope on the pathway was 10-15 degrees, this reflects his measurements when he inspected the garden bed in 2015. By this time significant works had been undertaken in the garden bed. Ms Lonie described the garden bed as at 2015 as being ‘completely different’[24] to that which had existed in October 2010.[25] Her evidence was: ‘they’ve raised it up, put more soil down, all new plants laid out. They’ve secured it, the dirt, the height with metal partitions.’[26]
[22]Ibid T162 LL6-8.
[23]Ibid T174 LL20-25; T175 LL23-28.
[24]Ibid T127 LL28-29.
[25]Ibid T127 L29.
[26]Ibid T128 LL2-5.
As a result of the changes which have taken place in the garden bed, I have treated with some caution Mr Contonyannis’ evidence regarding the degree of slope of the garden bed. Ms Wells gave evidence that the pathway was ‘flat’[27]. The photographs which are annexed to this judgment show a gradual slope. This does not appear to be of more than 10 degrees gradient.
[27]Ibid T140 L12.
Mr Contonyannis’ ‘biomechanical explanation’ for Ms Lonie’s account of her foot having ‘shot out backwards’ was as follows:
What happens is, as she loads up on one foot – during gait we basically oscillate between loading on one foot and the other, so she’s very reliant on that one foot at a particular point in time. And what happens if something moves, if the floor is slippery or if something moves underfoot whilst you are relying on that then that foot will be greatly disrupted. In this case as she tried to bring her left foot forward her right foot has slipped backwards or has shot backwards either because the ground has moved or the tan bark has moved, so it shoots out. It just shows the indication of all her weight was on that foot.[28]
[28]Ibid T171 L30 − T172 L10.
Mr Contonyannis gave evidence that the pathway was a hazard and should not have been used as a pedestrian access way.[29] He considered that the path should have been blocked off or adequately signed.[30] Alternatively, an appropriately constructed path should have been built across the garden bed.[31]
[29]Ibid T179 LL24-26.
[30]Ibid T181 LL6-8.
[31]Ibid T183 LL5-11.
As noted above, Ms Wells gave evidence that following Ms Lonie’s accident in October 2010, she continued to use the pathway through the garden bed until late 2012 when three poles with a ribbon were erected in front of the path. Mr Stanley QC led evidence on behalf of Monash regarding the circumstances in which the poles and ribbons had been erected. Stuart Barker is a contract manager with Programmed Property Services (‘PPS’). PPS was awarded the Open Space Management contract at Monash’s Clayton, Peninsula and Berwick campuses in 2009, and the Caulfield and Parkville campuses in January 2012.[32] As part of the contract, PPS was required to identify garden beds needing in-filling with plants. The garden bed in the vicinity of the Gryph Inn was identified as requiring re-planting.[33] The poles and ribbons were erected in late 2012 solely to protect the plants which had recently been planted.[34]
[32]Ibid T200 LL13-17.
[33]Ibid T201 LL5-15.
[34]Ibid T201 LL29-30; T202 LL14-15.
Brian Williams was the director of Strategic Planning and Development in Monash’s Facilities & Services Division in 2010. He gave evidence that in 2011 the University council approved a master plan. In accordance with this plan, the garden bed adjacent to the Gryph Inn was raised at the edge of the Queens Road footpath and a lot of new plants were planted. The alterations were not in any way related to the idea of preventing injury to people who might be walking across the garden.[35]
[35]Ibid T208 LL13-17.
Duty of occupiers
As the occupier of the Caulfield campus, Monash owed Ms Lonie a duty pursuant to s 14B(3) of the Wrongs Act 1958 (‘Wrongs Act’) to take such care as in all the circumstances was reasonable to see that any person on the premises would not be injured by reason of the state of the premises, or by reason of things that had been done, or omitted to be done, in relation to the state of the premises. Rather than contending that there were two separate duties—one under the common law and one under the Wrongs Act—the VWA alleged that Monash ‘was negligent in breach of the common law duty as modified by the Wrongs Act.’[36] In determining whether Monash discharged this duty of care, the Court is required to have regard to the matters prescribed by s 14B(4) of the Wrongs Act. I shall consider each of these matters in turn.
[36]Transcript of Proceedings, VWA v Monash University (Supreme Court of Victoria, S CI 2014 02296, McDonald J, 8 March 2016) T263 LL26-28. See also T249 LL8-11.
(a) The gravity and likelihood of the probable injury
The likelihood of injury is not to be assessed with the benefit of hindsight.[37] Put another way, the fact that Ms Lonie did in fact sustain a serious injury on 6 October 2010 does not, of itself, support the conclusion that it was probable that a serious injury would be sustained. In October 2010 there was a foreseeable risk of injury by reason of:
[37]Neindorf v Junkovic (2005) 80 ALJR 341, [93], [96]-[97] (‘Neindorf’); Secretary to the Department of Natural Resources and Energy v Harper (2000) 1 VR 133, [49] (‘Harper’); Erickson v Bagley [2015] VSCA 220, [35] (‘Erickson’); Raciti v Wadren Pty Ltd [2006] VSCA 132, [13] (‘Raciti’).
(a) the slope of the path;
(b) the variable surface comprised of tanbark and twigs; and
(c) the fact that the path was exposed to variable weather conditions.
However, whilst the risk of injury was foreseeable, the probable injury would not have been serious. Also, the probability of an injury was low.
There was no concealed danger in the pathway.[38] Each of the elements of the pathway identified by Mr Contonyannis as being hazardous was plainly visible. The cause of Ms Lonie’s fall was the fact that, immediately prior, most of her weight was on her right foot which was on a variable surface, causing her to slip.[39] Ms Lonie was unable to say with any certainty what she slipped on. However, whether it was loose tanbark or twigs, their presence was apparent to her.
[38]See, for example, Harper (2000) 1 VR 133, [47]; Vairy v Wyong Shire Council [2005] 223 CLR 422, [131], [148] and [161] (‘Vairy’); Erickson [2015] VSCA 220, [48]; Raciti [2006] VSCA 132, [26].
[39]Transcript of Proceedings, VWA v Monash University (Supreme Court of Victoria, S CI 2014 02296, McDonald J, 8 March 2016) T236 LL19-24.
There is no evidence of any other person ever having slipped and/or sustaining any injury on the garden path. The only direct evidence of usage of the path was provided by Ms Lonie and Ms Wells. Both gave evidence that they regarded the path as a safe and convenient shortcut. Ms Wells continued to frequently use the path, without incident, between October 2010 and late 2012. Both Ms Wells and Ms Lonie gave evidence that they observed many other people using the path. Mr Williamson gave evidence that in October 2010 the Caulfield campus population was approximately 5,000 people.[40]
[40]Transcript of Proceedings, VWA v Monash University (Supreme Court of Victoria, S CI 2014 02296, McDonald J, 7 March 2016) T209 LL1-2.
The photographs of the pathway taken in October 2010 show a well-worn path. Plainly, the path had been used by many people over a considerable period of time prior to October 2010.
I did raise with Mr Stanley, Monash’s failure to lead any evidence as to whether there had previously been any injuries sustained in or about the garden path. Mr Stanley replied that his client bore no onus to lead such evidence.[41] I accept this submission. The VWA bore the onus of establishing the failure by Monash to discharge the duty imposed upon it pursuant to s 14B(3).
[41]Ibid T229 LL26-27.
Neither Monash nor the VWA led evidence of any person ever having sustained an injury in or about the garden path. The absence of such evidence supports the conclusion that a reasonable person in the position of Monash would not have taken steps to block access to the pathway or erect signs warning of potential hazards.[42]
[42]Cf Raciti [2006] VSCA 132, [19] (Nettle JA), [57], [59] (Ashley JA).
(b) The circumstances of entry onto the premises
Ms Lonie entered the premises on 6 October 2010 for the purposes of undertaking employment. Her employer was in a commercial relationship with Monash, being the lessee of the premises from which the Gryph Inn conducted business.
(c) The nature of the premises
The Caulfield campus of Monash was one of five campuses operated by Monash in Victoria in October 2010.[43] There was access to the Gryph Inn from Queens Road, where Ms Lonie parked her car, both by way of a concrete ramp and concrete stairs. Monash did not make the path through the garden bed, nor was it the obvious option to access the Gryph Inn. Monash did not close off the safe means of access to Ms Lonie.[44]
(d)The knowledge which the occupier had … of the likelihood persons … being on the premises
[43]Transcript of Proceedings, VWA v Monash University (Supreme Court of Victoria, S CI 2014 02296, McDonald J, 7 March 2016) T200 LL13-16.
[44]Cf Karatjas v Deakin University (2012) 35 VR 355, [53].
There is no issue that Monash knew that persons, including employees of businesses such as the Gryph Inn, would be on the premises. As to Monash’s knowledge that such persons may use the pathway, Mr Stanley accepted that ‘… it was known by members of the university and university staff that this was a pathway that was used as a means of access and that they used it’.[45]
[45]Transcript of Proceedings, VWA v Monash University (Supreme Court of Victoria, S CI 2014 02296, McDonald J, 8 March 2016) T239 LL14-17.
(e) The age of the person entering the premises
Ms Lonie was born on 3 October 1958 and was 52 years old when she sustained injury on 6 October 2010.
(f) The ability of the person entering the premises to appreciate the danger
I agree with Ashley JA in Raciti that for the purposes of s 14B(4)(f), ‘danger’ refers to the state of the premises which it is claimed gave rise to the risk of injury.[46] Relevantly, that was the gradient of the path, its variable surface, and its exposure to all weather condition. None of these matters were concealed. Compared to walking down the concrete steps or the ramp immediately outside the Gryph Inn, walking on a sloping surface comprised of tanbark, twigs and dirt involved some element of risk. Ms Lonie was aware that it had rained earlier in the day, albeit that the rain had ceased by 3.00 pm when she first went home. This was some nine hours before she slipped after leaving work at around midnight. The gradient of the path and any variation in the surface were not concealed. Ms Lonie had traversed the pathway on numerous occasions between 1 September and 6 October 2010 and felt safe doing so. Her sense of security does not detract from the fact that, compared to the concrete ramp and the stairs, there were features of the path which created a low risk of injury. However, these features were not concealed.
[46]Raciti [2006] VSCA 132, [51].
Mr Ruskin submitted that it was not open to the court to make a finding in favour of Monash in respect of s 14B(f) of the Wrongs Act because Mr Stanley never put to Ms Lonie that she should have known that the surface of the pathway was not clear and that it could have been a bit slippery as a result of rain and the existence of tanbark and twigs. I do not accept this submission. Ms Lonie gave evidence in chief that the surface of the pathway was comprised of dirt, a bit of bark and some twigs.[47] Self-evidently, this was a variable surface. Plainly, a person of Ms Lonie’s age, who was not impaired in any way by consumption of alcohol or drugs, had the ability to appreciate the risk, albeit a slight one, of traversing the pathway.
[47]Transcript of Proceedings, VWA v Monash University (Supreme Court of Victoria, S CI 2014 02296, McDonald J, 7 March 2016) T121 LL12-13.
(g) The burden on the occupier of eliminating the danger
The risk of injury created by the pathway could have been readily alleviated. In late 2012, Monash erected poles with ribbon tape across the entry to the path. Ms Wells gave evidence that thereafter she did not use the pathway. If these poles and ribbons had been erected in October 2010, it is likely that persons such as Ms Lonie would not have used the path.
Section 26 of the Occupational Health and Safety Act 2004
In the particulars to paragraph [10] of the Further Amended Statement of Claim, it is alleged that Monash caused the incident and Ms Lonie’s injuries by failing to comply with s 26 of the Occupational Health and Safety Act 2004.[48] That section creates an indictable offence.[49] No charge has been laid by the VWA[50] against Monash in the present proceeding. The VWA did not press for any finding in respect of this provision, having regard to the fact that Monash provided Ms Lonie with safe means of entering and leaving the Gryph Inn via the concrete stairs and/or ramp.[51]
The interaction between s 14B and ss 48 and 49 of the Wrongs Act
[48]Further Amended Statement of Claim dated 7 March 2016, [10](dd).
[49]Occupational Health and Safety Act 2004 s 26(3).
[50]Ibid ss 5(1) and 130.
[51]Transcript of Proceedings, VWA v Monash University (Supreme Court of Victoria, S CI 2014 02296, McDonald J, 8 March 2016) T250 LL12-29, T259 LL11-12.
Sections 48 and 49 of the Wrongs Act provide as follows:
48 General principles
(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.
(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.
(3) For the purposes of subsection (1)(b)—
(a)insignificant risks include, but are not limited to, risks that are far-fetched or fanciful; and
(b)risks that are not insignificant are all risks other than insignificant risks and include, but are not limited to, significant risks.
49 Other principles
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.
Mr Ruskin submitted that ss 48 and 49 of the Wrongs Act are not relevant to the question of whether, for the purposes of s 138(1) of the ACA, Ms Lonie’s injuries were sustained in circumstances which created a liability in Monash. Sections 48 and 49 are contained in Part X of the Wrongs Act. The formula prescribed by s 138(3) of the ACA for calculating the quantum of indemnity expressly excludes the operation of Part X. Mr Ruskin submitted that both the Explanatory Memorandum and the Second Reading Speech for the Compensation and Superannuation Legislation Amendment Bill 2008, support a construction of s 138(1) of the ACA, whereby ss 48 and 49 of the Wrongs Act are to be excluded from any determination of liability arising under s 138(1).
Part 3 of the Explanatory Memorandum is headed ‘ACCIDENT COMPENSATION ACT 1985’. Of clause 8 to the Bill, it states as follows:
amends section 138 of the Accident Compensation Act 1985 to provide that recoveries under the Act are not subject to Parts VB, VBA and X of the Wrongs Act 1958. This confirms the original intention of previous amendments to the Wrongs Act that these not apply to actions for damages, including claims for indemnity under the Accident Compensation Act 1985.[52]
[52]Explanatory Memorandum, Compensation and Superannuation Legislation Amendment Bill 2008, 4 (emphasis in original).
Mr Ruskin also referred to the Second Reading Speech. Under the heading ‘Indemnities from negligent third parties’ the Minister for Finance, WorkCover and the TAC stated:
It was never the intention of the provisions of the Wrongs Act to apply to indemnity actions taken by WorkSafe or the TAC. The amendment therefore reinstates the law as it was applied prior to the Court of Appeal’s decision and clarifies that none of the provisions of the Wrongs Act apply to indemnity actions taken against negligent third parties.[53]
[53]Victoria, Parliamentary Debates, Legislative Assembly, 11 September 2008, 3664 (Tim Holding).
Viewed in isolation, the matters set out above support Mr Ruskin’s contention that there should be no recourse to ss 48 and 49 of the Wrongs Act when determining issues of liability arising under s 138(1) of ACA. Section 138(3)(b) of the ACA expressly precludes the court from having regard to Part X of the Wrongs Act (which includes ss 48 and 49) in determining issues of the quantum of any indemnity. On one view it is anomalous if ss 48 and 49 of the Wrongs Act are excluded from the quantification of indemnity under s 138(3) of the ACA, but not from the determination under s 138(1) of the ACA whether there is a liability to indemnify.
Notwithstanding the matters set out above, there is a considerable body of authority which supports the proposition that Part X of the Wrongs Act is not excluded from the determination of issues of liability under s 138(1) of the ACA. In Victorian WorkCover Authority v Jones Lang Lasalle (Vic) Pty Ltd,[54] Beach J (as his Honour then was) held:
The amendment made following Alcoa raises the possibility that in determining the liability of the defendant under sub-ss (1) and (2), relevant provisions of Part X of the Wrongs Act fall to be applied. However, when coming to calculate the amount in accordance with the formula in s 138(3)(b), those same provisions are to be disregarded. The rationality of such an approach is not easy to discern. Notwithstanding that it is difficult to discern why Parliament would intend the provisions of Part X of the Wrongs Act not to be taken into account in the calculation of the formula, in circumstances where they might fall to be taken into account on the question of liability, to hold otherwise would do unacceptable violence to the language in sub-ss (1) and (2) of s 138.[55]
[54][2012] VSC 412 (‘Jones Lang Lasalle’).
[55]Ibid [37] (citations omitted).
Beach J’s judgment was cited with approval by Kaye JA (sitting as a judge alone) in Victorian WorkCover Authority v The Australian Steel Company (Operations) Pty Ltd.[56] The same approach has been adopted in a number of other cases.[57] I am bound to follow these authorities unless I am of the opinion that they are plainly wrong. I am not of that opinion. Rather, I consider the reasoning of Beach J in Jones Lang Lasalle to be correct. Accordingly, when determining the question of liability under s 138(1) of the ACA it is necessary to have regard to ss 48 and 49 of the Wrongs Act.
[56][2015] VSC 58, [63].
[57]See, for example, VWA v Bayer Cropscience Pty Ltd [2014] VSC 505. See also, for example, cases where this course was adopted by agreement of the parties: VWA v Probuild & Ors [2016] VSC 102, [13]-[18]; Griffin v VWA & Ors [2016] VSC 101, [291]-[297].
The risk of a person slipping on the pathway in October 2010 was foreseeable. The risk was not ‘far-fetched or fanciful’.[58] However, the likelihood of injury, let alone serious injury such as that sustained by Ms Lonie on 6 October 2010, was low. The burden of taking precautions to avoid the risk was not onerous. Further, there was limited social utility in the activity of taking the short cut across the garden bed which created the risk of harm. The saving of time achieved by walking across the garden bed, rather than taking the stairs or ramp, could not have been more than 30 seconds.
[58]See s 48(3) of the Wrongs Act.
Section 49(a) of the Wrongs Act provides that 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. Mr Barker from PPS gave evidence that his company has a contract for garden maintenance for five Monash campuses.[59] There was no evidence regarding the extent of the garden beds at the four campuses other than Caulfield. Plainly, there are garden beds at the other campuses because PPS has a contract to maintain them. The burden of taking precautions to avoid similar risks of harm would therefore require Monash to identify any garden beds with similar features to that which was adjacent to the garden bed adjacent to the Gryph Inn, for example, sloping gradient, exposure to weather conditions and variable surface. Further, if it was established that such pathways were being used as a short cut, Monash would have to make an assessment as to whether the pathway thereby created should be blocked. Whilst there is sufficient evidence to make these observations, there is insufficient evidence to support any firm findings as to the extent of any burden which would have been imposed upon Monash to carry out a risk assessment in respect of garden beds at campuses other than the Caulfield campus.
[59]Transcript of Proceedings, VWA v Monash University (Supreme Court of Victoria, S CI 2014 02296, McDonald J, 7 March 2016) T200 LL7-17.
In regards to the application of s 49(b) and (c), the risk of harm to anybody walking across the garden bed could have been avoided by blocking the entrance to the bed. This occurred in late 2012 when the garden bed was replanted. However, the combined effect of s 49(b) and (c) is that this conduct does not, of itself, affect Monash’s liability or constitute an admission of liability. In this regard, both Messrs Barker and Williamson gave evidence, which I accept, that the blocking of the entry to the path in late 2012 was solely for the purpose of protecting the new plants in the garden bed.
Conclusion as to breach
There is no issue in the present proceedings that Monash owed Ms Lonie a duty of care in accordance with the statutory duty prescribed by s 14B(3) of the Wrongs Act and/or at common law.[60] Whether Monash breached that duty of care turns upon the question of whether a reasonable person in the position of Monash would have taken precautions to block entry to the path or place a sign warning persons not to enter the path. As Hayne J observed in Neindorf:
Asking what could have been done will reveal what was practicable. It is necessary to ask also: would it have been reasonable for the occupier to have taken those measures?[61]
[60]See Further Amended Defence dated 7 March 2016, [4].
[61]Neindorf (2005) 80 ALJR 341, [93] (emphasis in original).
Whilst Monash owed Ms Lonie a duty of care, that duty did not extend to preventing every foreseeable injury.[62] Further, as Hayne J observed in Vairy:
The inquiry into breach, although made after the accident, must attempt to answer what response a reasonable person, confronted with a foreseeable risk of injury, would have made to that risk. And one of the possible answers to that inquiry must be ‘nothing’.[63]
[62]Harper (2000) 1 VR 133, [41].
[63]Vairy [2005] 223 CLR 422, [124]. See also State of Victoria v Subramanian (2008) 19 VR 335, [44]; Neindorf (2005) 80 ALJR 341, [12], [14] and [91]; Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234, [36]-[37]; Central Gold Fields Shire v Haley (2009) 24 VR 378 [112]-[113]; Raciti [2006] VSCA 132, [13].
As at 6 October 2010 a reasonable person in the position of Monash would have done nothing to prevent access to the garden path and/or place a warning sign at the commencement of the path. There is no evidence of any person ever having been injured whilst walking across the path prior to 6 October 2010. The probability of any person sustaining injury whilst traversing the path was low. There was no concealed danger in the path. The gradual slope of the path, its variable surface and the fact that it was exposed to all weather conditions was obvious to any person using it. Monash had provided safe means of ingress and egress from the Gryph Inn via concrete stairs and a ramp. It had not taken any steps to make the garden path the obvious route for a person walking from the garden path to Queens Road.
I have rejected Mr Ruskin’s submission that no regard should be had to ss 48 and 49 of the Wrongs Act when considering the question of liability under s 138(1) of the ACA. However, even if I had accepted the submission it would not have altered the conclusion set out above. Without recourse to ss 48 and 49 of the Wrongs Act, I would still have concluded that a reasonable person in the position of Monash would not have taken steps to prevent access to the path and/or placed a warning sign at the commencement of the path. Monash did not breach its duty at common law and/or under s 14B(3) of the Wrongs Act.
Section 138(3) of the ACA
The conclusion set out above renders it unnecessary for the court to determine the quantum of indemnity in accordance with s 138(3) of the ACA. However, for the sake of completeness, I shall record what would have been the position had I found Monash liable to indemnify the VWA pursuant to s 138(1) of the ACA.
Section 138(3) prescribes a formula for determining the quantum of an indemnity in circumstances where the court has made a finding of liability under s 138(1) of the ACA. Relevantly, in the circumstances of the present proceedings, that formula is as follows:
A – C x
It was agreed between the parties that for the purposes of the formula above the quantum of ‘A’ is $1.3 million. ‘C’ is the amount paid by Monash in respect of the injury to Ms Lonie pursuant to the settlement which was reached in proceeding S CI 2014 00135, in which Ms Lonie sued Monash. It was an agreed matter that Monash paid Ms Lonie $100,000 in settlement of her claim. Of this sum, Ms Lonie received $27,000 after payment of her legal fees. A question thus arises as to whether ‘C’ is comprised of the gross amount of $100,000, or the net amount of $27,000 following deduction of legal expenses.
Cummins J dealt with this question in Victorian WorkCover Authority v Gray’s House Removalist Pty Ltd:[64]
Finally as to the submissions on behalf of the defendant, I consider that payment of costs (in this case $20,966) was not “in respect of” the injury as contemplated by Factor C. Although those words are of wide import, there is no justification in terms [sic] function or policy for extending Factor C beyond its evident function to that of reimbursement of costs. Its evident function is to fix upon the amount paid in settlement of the claim and to enable assessment of the proportionate liability of a defendant in relation to a notional assessment. I do not include payment of costs in Factor C.[65]
[64][2005] VSC 451.
[65]Ibid [79].
Applying this reasoning, the $73,000 which Ms Lonie paid to her lawyers from the settlement sum of $100,000 would not be included in Factor C. I am bound to follow the judgment of Cummins J unless I am of the opinion that it is plainly wrong. Neither Mr Stanley nor Mr Ruskin advanced any submission that I should conclude that Cummin J’s reasoning is plainly wrong.
There is room for debate regarding the question of whether the portion of settlement funds applied to cover legal costs is a payment ‘in respect of injury’. However, fertile ground for debate does not warrant a conclusion that Cummin J is plainly wrong. As such, consistent with his Honour’s reasoning, which excludes amounts referable to costs, I would treat Factor C as equating to $27,000.
Factor X is the extent, expressed as a percentage, whereby Monash’s act, default or negligence caused or contributed to Ms Lonie’s injury. Mr Stanley submitted that if the court concluded that Monash was liable under s 138(1) of the ACA, the extent of that liability should be reduced by 50%, by reason of the negligence of Ms Lonie’s employer, Gryph Inn Investments Pty Ltd. Mr Stanley submitted that the Court should conclude that Ms Lonie’s employer was aware that she was taking a short cut through the garden bed and was negligent by reason of its failure to warn her not to do so. Had it been necessary, I would have rejected this submission.
There is no evidence that Ms Lonie’s employer had any knowledge that Ms Lonie was using the path through the garden bed. Ms Lonie gave evidence that she had observed Glenn Carter, a director of her employer, use the path himself.[66] However, she gave no evidence that she had used the path in his presence, and no evidence of any discussion with him regarding her use of the path. Absent evidence that her employer was aware that she was using the path, there is no basis for concluding that Gryph Investments Pty Ltd was negligent by reason of failure to warn Ms Lonie not to use the path.
[66]Transcript of Proceedings, VWA v Monash University (Supreme Court of Victoria, S CI 2014 02296, McDonald J, 7 March 2016) T129 LL4-8.
Had I concluded that Monash was liable to indemnify the VWA under s 138(1) of the ACA, the quantum of the indemnity in accordance with s 138(3) would have been $1,273,000, calculated as $1,300,000 minus $27,000 x .
Conclusion
Having regard to the Court’s primary finding that Monash has no liability to indemnify the VWA pursuant to s 138(1) of the ACA, there will be an order that the proceeding be dismissed. I shall provide an opportunity to the parties to make submissions on the question of costs.
‘Annexure A’
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