Richardson v Mt Druitt Workers Club  NSWSC
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
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
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
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
Justice Adams considered whether:
The club owed the plaintiff a duty of care?
If so, what was the scope of that duty in the
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
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
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.
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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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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