Australia: More Trips Less Stumbles in Litigation

Last Updated: 29 February 2012
Article by Samantha Kelly

The year saw a positive trend of courts reverting to a stricter interpretation of civil liability legislation; a development that may give litigants greater certainty regarding the application of the law. There was a decrease in overall filings of initiating processes in all courts, but a notable increase in claims for compensation arising out of public liability incidents.

In New South Wales, the proposed amendments to Part 2A of the Civil Liability Act 2002 (NSW) (CLA), requiring parties to take reasonable steps to resolve disputes before they commence court proceedings, have been postponed for 18 months. The amendments, requiring parties to engage with one another in order to narrow or resolve a dispute before commencing proceedings, have been postponed in order to enable the success of similar provisions commenced in the Federal Court to be monitored.

There were a number of decisions in 2011 of interest to insurers.


Rockhampton City Council was unsuccessfully sued by a plaintiff rendered quadriplegic after striking his head on the bed of the Fitzroy River following a jump from an improvised rope swing. In Felhaber v Rockhampton City Council [2011] QSC 023, the Queensland Supreme Court found the exercise of reasonable care did not require the defendant council to take the steps the plaintiff submitted as the activity was a voluntary recreational activity, the risk was obvious and the council did not encourage persons to engage in the activity.

It was submitted for the plaintiff that the council should have made a greater response to the activity, for example by removing the tree or erecting signs prohibiting use of the swing. The court did not believe that that particular hazardous place should have been singled out from the significant area of parkland and waterway for which the council was responsible. The court also considered the defence of voluntary assumption of risk and asked "whether there was any compulsion or obligation on the plaintiff to accept the risk, or no opportunity to avoid incurring it". In finding the answer to be no, the court found the defence made out.


In Vreman and Morris v Albury City Council [2011] NSWSC 39, the plaintiff alleged the defendant was negligent in painting the concrete surface of a skate park, which allegedly caused the plaintiff to fall from his BMX bike whilst attempting a jump.

The New South Wales Supreme Court considered the application of section 5L of the CLA, whether BMX bike riding was a dangerous recreational activity and whether the plaintiff's injuries were the materialisation of an obvious risk. In finding for the defendant, the court found that BMX bike riding at the skate park was a dangerous recreational activity and that a reasonable person would have been aware that the slippery surface of the skate park would have increased the risk of injury, and the risk of injury was obvious.


In Elphick v Westfield Shopping Centre Management Co Pty Ltd [2011] NSWCA 356 (Elphick decision), the Court of Appeal dismissed the appeal brought by Mr Elphick against Westfield as the occupier of his place of employment where he had suffered a work injury. Mr Elphick was employed by All Cleaning & Security Pty Ltd (ACS) as a cleaner at a Westfield shopping centre. The accident occurred in the loading dock when Mr Elphick was removing cardboard boxes from an unstable cage. The terms of the contract between ACS and Westfield were critical in determining the role of each party and whether a duty of care had been breached.

Westfield as occupier was held to have no liability to Mr Elphick because it was not responsible for supervising the system of work put in place by ACS. In accordance with the contract, ACS was responsible for devising, implementing and supervising the system of work. Westfield's duty of care only extended to taking reasonable care for Mr Elphick's safety as an entrant upon the premises.

The Elphick decision also considered the unique legal issue of dual legal representation for one party. ACS was represented by different solicitors in both the District Court and the appeal proceedings. One solicitor defended ACS' contractual liabilities and the other prosecuted ACS' workers compensation insurer's entitlement to recovery of workers compensation payments made to Mr Elphick as a result of his injury.

Even though there are no specific rules permitting or forbidding separate representation, the Court of Appeal emphasised the general rule that insurers cannot have separate representation and a court must grant leave for separate representation to occur. Any assumption that there is an entitlement to separate representation was a "myth... that must be exploded".


The Court of Appeal reaffirmed the importance of addressing the elements of section 5B of the CLA in determining whether there has been a breach of duty of care under the CLA in Bader v Jelic [2011] NSWCA 255. Section 5B provides that a person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, the risk was not insignificant and in the circumstances a reasonable person in the defendant's position would have taken those precautions.

Mr Jelic, a telecommunications mechanic, visited the Baders' home to undertake some work. He mistook a glass window for a door, stumbled into it and broke the glass window. The Court of Appeal considered it of significance that no similar accident had occurred in the five years prior to Mr Jelic's accident. That factor was considered relevant to the question of whether a reasonable person in the Baders' position would have taken precautions such as pulling the blinds down over the window.

The Court of Appeal also considered that whilst a cautious and observant home owner might have identified a significant risk, that does not mean the reasonable person would necessarily have identified the risk and taken steps to avoid persons like Mr Jelic having an accident. The Court of Appeal also considered that causation would not be proved by Mr Jelic as it was mere speculation as to whether he would not have stumbled on the rug had the blind been down.


In Lithgow City Council v Craig Jackson [2011] HCA 36, the High Court ruled that an ambiguous and obscure note made by an ambulance officer about the cause of an accident was inadmissible. In the early hours of the morning of 18 July 2002, Mr Jackson was found injured and unconscious in a drain in Lithgow. On the northern side of the drain was an unfenced headwall. There were no witnesses and Mr Jackson has no recollection of how he came to be in the drain. The only evidence of what might have occurred was a note contained in the ambulance retrieval record that stated "? fall from 1.5m onto concrete".

The Court of Appeal had accepted that the ambulance note was evidence of how Mr Jackson came to be in the drain, despite the ambulance officer not being called to give evidence at the trial or provide any information as to how he came to hold that belief.

The council appealed to the High Court on the basis that the ambulance note represented an opinion pursuant to section 76 of the Evidence Act 1995 (NSW) (Evidence Act) in circumstances where the ambulance officer was not an eyewitness to the incident, and therefore inadmissible.

The High Court held the note was ambiguous and so shrouded in obscurity it was not possible to find that the note stated an opinion that Mr Jackson fell from the headwall. Further, the note said nothing about what the ambulance officer observed or perceived as to the location of Mr Jackson's body in relation to the physical features of the location, thereby not overcoming the exception to the hearsay rule in s. 78 of the Evidence Act. The note was held to be inadmissible.


Despite the developments outlined above, there continue to be examples of cases decided in favour of plaintiffs that offer a surprising extension of the duty of care of defendants such as local councils.

An example is the District Court's decision in the matter of Dylan Kuehne, by his tutor Peter Kuehne v Warren Shire Council [2011] NSWDC 30. Tyra Kuehne, a child, had been mauled to death by dogs in a backyard and a claim for psychiatric injuries was made by Tyra's brother and father as a result of the circumstances of Tyra's death.

Prior to the accident, the council had received a number of complaints about dogs roaming and defecating in the streets. However, there was no evidence council had received any complaints about these dogs, and the dogs had only been moved to the backward two weeks before the incident.

The court found that the council had breached its duty of care owed under the Companion Animals Act 1998 (NSW) to make a dangerous dog declaration over the dogs. The provisions of this Act created an obligation on the council to exercise its powers and a reasonable council would have issued a dangerous dog declaration over the dogs. Most surprisingly, the court held that Tyra's accident would not have occurred if the council had issued the dangerous dog declarations and removed the dogs from the property. The court also accepted that the council's failure to act caused Tyra's death and, as a result, the plaintiff's injuries.

Council's appeal to the NSW Court of Appeal is listed for hearing in early 2012.


In Harmer v Hare [2011] NSWCA 229, Mr Hare suffered injuries whilst driving Mr Harmer's car. Mr Harmer had been too intoxicated to drive. The tyres of Mr Harmer's vehicle were bald and it had also been raining on the day of the accident. Mr Harmer had not told Mr Hare about the state of his vehicle's tyres. As Mr Hare drove through a roundabout, he lost control of the vehicle and crashed into a telegraph pole, suffering severe injuries as a result. The evidence established that Mr Hare lost control of the vehicle because they tyres were bald.

The Court of Appeal placed the standard of care of owners of defective vehicles high, finding that the duty of care is not simply to warn others of the defect, but also to prevent others from driving the defective vehicle.

In the absence of any reasonable cause to suspect a defect, the driver themselves is not required to ask the owner whether a vehicle they are about to drive is roadworthy.


With legislation and the courts taking a greater role in pre-litigation and also pre-hearing steps, we can expect the time between commencement of proceedings and judgment to consistently to decrease. We can also expect more pressure on parties to have cases properly prepared for hearing and penalties for any lapses.

© DLA Piper

This publication is intended as a general overview and discussion of the subjects dealt with. It is not intended to be, and should not used as, a substitute for taking legal advice in any specific situation. DLA Piper Australia will accept no responsibility for any actions taken or not taken on the basis of this publication.

DLA Piper Australia is part of DLA Piper, a global law firm, operating through various separate and distinct legal entities. For further information, please refer to

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