Richardson v Mt Druitt Workers Club [2011] NSWSC 31

A plaintiff sought damages for personal injury in negligence, and contract, as a result of falling while in the process of climbing over a gate, at night, and in the rain.

The NSW Supreme Court determined that the plaintiff's cause of action was doomed to fail and, accordingly, was struck out pursuant to Rule 14.28 of the Uniform Civil Procedure Rules 2005 on the basis that it disclosed no reasonable cause of action.

Circumstances

The plaintiff had regularly attended the premises of the defendant which were approximately 200m from his home, for social activities. The plaintiff on the night in question had upon leaving walked, approximately 150 metres, to a rear gate which he found to be locked.

The plaintiff, rather than return to the club to get a member of staff to unlock the gate, climbed over it, slipped and fell. He suffered unidentified injuries.

The plaintiff alleged that the main entrance to the club was closed, and the only alternative exit was an exit on the other side of the building signed 'No Pedestrian Access'. He submitted that the club knew that patrons would expect to use the rear entrance, and should have ensured that the gate was not locked before closing time. In the alternative he submitted that an intercom should have been installed to allow the club to be contacted.

The plaintiff submitted that he was placed in a 'position where the only means of egress available to him was to climb the fence'. He also alleged that the club must have known that steel bollards placed close to the gate may be used to climb onto the gate.

Decision

Justice Adams considered whether:

  • The club owed the plaintiff a duty of care?
  • If so, what was the scope of that duty in the circumstances?
  • The defendant was in breach of the duty so defined?
  • The breach was causative of the plaintiff's injuries?

In determining whether a duty of care was owed, the Court confirmed that an occupier owes a duty of care to all entrants lawfully present on its land. It found that it was arguable, 'but only just', that someone might try to climb the gate, and may therefore be 'reasonably foreseeable'. That risk only existed though in the case of someone ignoring the obvious. The Court stated that the submission by the plaintiff that the club should have foreseen that in the absence of a warning, or installation of an intercom, that a person might try to climb the gate was 'farfetched and fanciful'.

The plaintiff submitted that the scope of the duty was that the defendant would not lock the gate, or would provide a more convenient method of getting a staff member to unlock the gate.

In determining whether there had been a breach of duty the Court referred to The Council of the Shire of Wyong v Shirt and noted that a 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.

The plaintiff alleged that the breach arose from the locking of the gate, a failure to warn patrons that the gate was locked prior to leaving the clubhouse, and failing to install an intercom at the gate. The plaintiff submitted that the breach resulted in him attempting to climb the gate.

The Court determined that any alleged breach, was not in any commonsense way causative of the plaintiff's decision to climb the fence, or the resulting fall.

It determined that a decision to climb a high, steel gate with metal spikes on top was not to be regarded as 'in the ordinary course of things' which would happen as a result of the defendant's negligence.

Civil Liability Act 2002

The Court noted sections 5B, 5C, 5D and 5G of the Act. The Court determined that it was not foreseeable that a person might attempt to climb the gate rather than simply return to the club. It was determined that warning patrons of the locked gate was a mere courtesy against inconvenience, and not a precaution against a risk of climbing the fence.

Comment

While the striking out of the plaintiff's cause of action on the basis that there was no reasonable cause of action turns on the circumstances of this claim it, as an option, should always be kept in mind by defendants. The plaintiff was unable to prove that the risk that someone would climb the gate was foreseeable in any relevant sense, or that the risk that a person might attempt to climb the fence was of no significance.

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