Judgment date: 1 July 2011. Burton v Brooks  NSWCA 175. NSW Court of Appeal1
- Occupation is only one aspect when considering the scope of the duty of a home owner.
- Control is important in defining the scope of the duty and can supplement the scope of duty owed as an owner and occupier of property.
- An organiser of an activity involving a risk is under a duty to use reasonable care in organising the activity to eliminate or minimise risk and this includes home owners.
Mr Burton and Mr Brooks were family friends. Over dinner at Mr Burton's home one evening, Mr Brooks and his wife agreed to come back the following day and help Mr Burton cut down 2 palm trees on his property.
The following day, Mr Burton and Mr Brooks cut down the palm trees as planned. This took half a day. Once this job was completed they also decided to lop overhanging branches from a privet tree and a mulberry tree located near an empty pool on the property. There was limited working area near the pool edge due to the intrusion of the overhanging branches.
The system of work was devised by Mr Burton and this was to lean a ladder against the Colorbond fence and use a chainsaw to lop the branches. Once the branches were cut, Mr Brooks dragged the branches to a point where they were taken away by other helpers. On one occasion, Mr Burton wanted to cut a branch that was only just in his reach. He asked Mr Brooks to hold the branch steady so it could be cut with the chainsaw. Mr Burton failed to adequately cut through the branch so Mr Brooks gave the branch a pull to detach. In doing so he lost balance and fell into the empty pool behind him.
District Court decision
The original proceedings were heard before Garling DCJ.
His Honour made reference to ss 5B, 5C, 5G and 5R of the Civil Liability Act 2002 (CLA). He accepted that Mr Brooks argued his case on 2 bases. Firstly, that Mr Burton was negligent in failing to completely cut through the branch in question; and secondly, that Mr Burton was negligent in allowing Mr Brooks to work in close proximity to an empty swimming pool.
Garling DCJ accepted that it was totally foreseeable that, if someone tripped, fell, and lost their footing, they would fall into the empty swimming pool, and it is obvious that if you are pulling branches etc, you can lose your balance or move backwards.
His Honour held the risk was significant and the duty owed by Mr Burton to Mr Brooks was one that a householder will owe to a relative or a friend who comes over to assist with gardening type work. His Honour further held that appropriate preventative measures would have been to put some boards across the end of the pool near where they were working, or to erect some sort of protective barrier. The cost in doing this would have been minimal.
Garling DCJ decided that Mr Burton had breached his duty of care by allowing Mr Brooks to work in close proximity to an empty swimming pool. He was not satisfied that Mr Burton's failure to cut through the branch amounted to negligence. His Honour found Mr Brooks was contributory negligent to the extent of 25%.
Garling DCJ awarded Mr Brooks a buffer of $70,000 in respect of loss of earning capacity on the basis that if he lost his job as a sales manager in a company that imported garden stakes, by reason of his disabilities he would be disadvantaged on the open labour market.
Court of Appeal decision
Mr Burton challenged the decision of Garling DCJ on the following bases: firstly, the finding of the scope of the duty he owed to Mr Brooks; secondly, a greater proportion of contributory negligence should have been found against Mr Brooks; and thirdly, the primary judge's finding that as a result of the accident Mr Brooks suffered a loss of earning capacity that was likely to cause him future economic loss.
Mr Burton conceded that he owed a duty of care to Mr Brooks.
Macfarlan JA who delivered the unanimous judgment of the Court of Appeal found Mr Burton's status as the occupier of the property was only one aspect of his relationship with Mr Brooks. Mr Brooks had been invited onto the property for the purpose of assisting Mr Burton. The activity was for the benefit of Mr Burton.
His Honour held that, as an organiser of an activity involving a risk of injury, Mr Burton was under a duty to use reasonable care in organising the activity to avoid or minimise that risk.
Macfarlan JA found that control is important in identifying the evidence and nature of a duty of care: Thompson v Woolworths (Qld) Pty Ltd2. His Honour further found that Mr Burton exercised control over the activity which supplemented the duty which arose out of his ownership and occupation of the property.
Given Mr Burton was working in close proximity and with his back turned to the empty pool (being the hazard), his Honour found he should have taken reasonable care to avoid Mr Brooks falling back into the empty swimming pool. Further, asking Mr Brooks to hold the relevant branch creating tension, created significant risk of him falling back into the empty pool.
Macfarlan JA upheld the primary judge's finding that Mr Burton was negligent by asking Mr Brooks to hold the branch.
His Honour held that the magnitude of the risk of serious harm to Mr Brooks was such that Mr Burton was not justified in proceeding with the activity without taking precautions to eliminate or substantially reduce the risk. The activity was one that Mr Burton could have refrained from doing.
Mr Burton's argument that Garling DCJ failed to have sufficient regard to the provisions of the CLA was rejected. It was noted that he did set out the provisions of the CLA, but despite this, in accordance with the decision of Laresu Pty Ltd v Clark3, a failure by a judge to refer to relevant provisions of the CLA does not vitiate the judge's decision if in material respects the judge has addressed the matters that the CLA requires to be addressed.
On the issue of contributory negligence, Macfarlan JA held that it was open to the primary judge to conclude a 25% reduction in damages represented Mr Brooks' responsibility for the accident and therefore Mr Burton's challenge to this aspect of the judgment failed.
In relation to Mr Burton's challenge to the award for future economic loss, Macfarlan JA confirmed that the CLA does not preclude the award of a "buffer" in appropriate circumstances: Penrith City Council v Parks4, Leichhardt Municipal Council v Montgomery5. His Honour therefore rejected this part of the appeal.
Accordingly, the Court of Appeal dismissed Mr Burton's appeal.
This decision is a timely reminder to home owners and insurers of home owners that regardless of what activity is being undertaken, due consideration is required of the risks involved and appropriate responses to these risks.
Control is one element in determining the scope of the duty, but the threshold question is whether an occupier exercises reasonable care in avoiding a foreseeable risk of injury.
It is appropriate to award a buffer for economic loss in circumstances such as where a plaintiff may be disadvantaged on the open labour market if he or she were to lose their job at some point in the future because of residual disabilities arising out of an accident.
1. Hodgson JA, Macfarlan JA, Tobias AJA
2.  HCA 19
3.  NSWCA 180
4.  NSWCA 201
5.  NSWCA 432
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