Australia: The Balancing Act – Risk of Precaution v Risk of Injury
Kempsey Shire Council v Glenice Baguley [2010] NSWCA 284

The Balancing Act – Risk of Precaution v Risk of Injury

Judgment date: 8 November 2010

Kempsey Shire Council v Glenice Baguley [2010] NSWCA 284

New South Wales Court of Appeal¹

In Brief

• Probability of harm is not solely determined on how many complaints have been previously made or the witness of prior similar incidents.
• In establishing failure to take reasonable precautions evidence is required of the probable 'success' of the proposed precaution as against the risk as it presently stands.

Background

The Kempsey Shire Council (Council) was the occupier of the Kempsey Waste Receival and Disposal Facility Centre (tip). On 27 September 2007 Ms Baguley (plaintiff) drove her utility to the tip to dispose of a load of rubbish. On entry she was directed by the person in charge where to unload her rubbish at the rubbish pit (pit).

The pit was made of concrete. It was 1.1 metres deep and 3.9 metres wide. There was a small concrete riser (18cm high) running along the width of the pit, positioned at the top where it met the standing platform (on which users would stand and position their vehicles to unload rubbish).

The plaintiff positioned herself at the pit as instructed and reversed her utility towards the riser. She stopped just before reaching it. As the plaintiff took steps to unload her rubbish she positioned herself near the rear driver's side of the utility. She then inadvertently stepped backwards and turned, her foot hit the riser and caused her to fall into the pit sustaining injury. Section 5B of the Civil Liability Act 2002 (CLA) provides as follows:

District Court proceedings

The plaintiff alleged that the Council breached its duty of care to her by failing to have in place:

1. a fence or brick wall running along the width of the pit. This would have prevented her accident;
2. a supervisor near the pit to avoid the risk of someone falling into the unfenced pit; and
3. warning signs alerting customers of the dangers posed by the pit.

The plaintiff relied on the evidence of Mr Dohrmann, consulting engineer. He expressed a view that the Council:

1. should have known of the risk that customers might fall into the pit based on published information relating to the risk of falls; and
2. could have taken the following measures to prevent exposing the plaintiff to the risk:
   1. Erected a low safety rail. The most obvious, effective and commercial measure to implement. Mr Dohrmann also relied on photographs showing various structures around pits at other locations.
   2. Erected warning signs.
   3. Have closer supervision of the pit.
   4. Have customers dump rubbish at ground level.

In cross examination Mr Dohrmann conceded that a rail would create different risks of injury. This was consistent with the evidence led by the Council that a fence/wall along the pit would create other significant risks to customers using the tip (such as lifting injuries).

The Council also led evidence that despite 80 to 100 persons utilising the tip each day, no customers had fallen into the pit in the last 5 years.

Garling DCJ found that the Council was liable to the plaintiff. He considered that:

1. the pit was potentially dangerous. Taking into account the breadth of customers using the pit (including elderly), combined with the potential for persons to simply trip, slip or miscalculate their step, it was quite foreseeable that someone could fall into the pit. There was no way persons could stop themselves falling. The danger was obvious and the probability of harm could not be measured with only reference to how many complaints had been previously made or the witness of prior similar incidents;
2. it was foreseeable that if someone fell into the pit serious injury would occur;
3. a wall of a suitable height should have been in place – as suggested by Mr Dohrmann. The burden of taking this precaution was not great While there was always a danger of someone hurting themselves in some other way this "does not seem to have worried those who constructed a number of these other facilities [when installing a wall] there". The more obvious danger was falling into an unfenced and open pit; and
4. precautions such as a supervisor and warnings would not have prevented the plaintiff's accident.

Court of Appeal

The Council appealed on three grounds. It was alleged that Garling DCJ:

1. failed to consider whether the risk of injury was "not insignificant (s 5B(1)(b)) of the CLA. The Court of Appeal dismissed this and found that Garling DCJ expressly concluded that the risk was not only foreseeable but was not insignificant. He stated that the risk was "very obvious and perhaps an accident waiting to happen".

   The Court of Appeal confirmed that:

   "Any assessment of the significance of the risk posed by the configuration of the pit had to take into account the possibility that a customer, by reason of momentary inattention or a stumble, might fall into the pit";
2. in determining that a reasonable person in the Council's position would have erected a wall/fence, failed to give due consideration to the probability of harm occurring if care were not taken (s 5B(2)(a) of the CLA). The Court of Appeal found that, for similar reasons as outlined above, Garling DCJ did take this into account; and
3. erred in finding that a reasonable person in the Council's position would have constructed a wall alongside the pit. He failed to take into account evidence of the other risks posed by the construction of the wall. It is on this basis that the appeal was upheld.

The Court of Appeal found that the evidence relied on by Garling DCJ was principally that of Mr Dohrmann. This evidence, however, failed to address:

1. whether a reasonable person in the position of the Council would have erected a wall around the pit as a safety measure. While Mr Dohrmann relied on photographs of barriers at other waste facilities no evidence was given as to the reasons why these barriers were constructed and whether they were an effective safety measure; and
2. whether a wall would have created risks similar to or greater than the risks posed by the pit in its current state.

It was held that the onus was on the plaintiff to present evidence justifying a finding that the risks inherent in the erection of a fence/wall were less than those associated with the pit in its current form. In the absence of this evidence, the Court of Appeal held that you would be substituting one risk for another.

Accordingly the Court of Appeal decided that Garling DCJ was in error in finding that the Council breached the duty of care to the plaintiff.

Implications

This decision highlights the importance of expert evidence to not only address what precautions can be taken but also the probable 'success' of these precautions as against the risk as it presently stands.

Failure for expert evidence to address this 'success' aspect may see evidence regarding precautions rendered futile and possibly result in an unsuccessful outcome.

While the absence of similar accidents is a matter to consider in determining whether a risk is more than insignificant for the purpose of s 5B(1)(b) of the CLA, it is not determinative.

1 Campbell JA, Handley AJA and Sackville AJA

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