Sibraa v Brown  NSWCA 328
Judgment date: 12 October 2012
Jurisdiction: New South Wales Court of Appeal 1
- Whether a risk is "not insignificant" in accordance with the Civil Liability Act 2002 (the CLA), s 5B(1)(b) is to be judged as at the time the risk is created, and therefore a plaintiff's knowledge of the presence of that risk prior to the accident does not mean that the risk was "not insignificant".
- Confirmed the general principle that in all cases the duty is essentially one of reasonableness. An occupier cannot be expected to eliminate all possible hazards or remove defects, such as imperfections in concrete driveways, which are endemic in all but the most obsessively-maintained premises.
- A reasonable householder would not take the precaution of removing mundane objects, such as children's toys, garden hoses, or furniture, from their front lawns in the event that people come onto their property at night.
On the evening of 8 May 2007, Dorothy Brown (the plaintiff), aged 60 at the time of the accident, was injured when, in the dark and barefoot, she tripped over some welded wire mesh that was lying on the front lawn of her neighbour's, Mr Sibraa (the defendant)'s, house.
In the early part of 2007, the defendant often left his and other related children (aged variously between 13 and 14 years) alone at the house while he was away for work. The plaintiff agreed to "keep an eye open for the children to make sure that there was nobody hanging around at night when they were there by themselves".
In late March or early April 2007, two police officers attended the defendant's house and following this the plaintiff increased her attention, often staying at the defendant's house while he was away, supervising the children and undertaking some domestic tasks.
On the day of the accident, a piece of wire mesh lay on the ground in the front yard of the defendant's house, close to the beginning of a path that led down the right-hand side of the house. The mesh was described as "concrete reinforcing mesh ... made of iron or steel and appears to be much thicker and much more durable than, for example, chicken wire." It was inferred that the defendant had laid this mesh over seeded grass to assist it to grow in an area where it had been eroded.
At about 7.30 pm on 8 May 2007, the plaintiff attended the defendant's house to check on two of the children who had some issues earlier that evening. The area was dark, despite an exterior light by the side of the front door, and during the course of moving from the front door of the defendant's house to the rear of the property, the plaintiff tripped on the wire mesh, causing her to fall and suffer injury. The exterior light was turned off at the time by the girls as they thought the mother of one of the girls was approaching the home and they wanted to pretend they were not there as she had run away from home.
Following a trial in the District Court at Albury, his Honour Neilson J held that the plaintiff's injuries arose from the negligence of the defendant.
The primary judge noted that the plaintiff did not use the concrete driveway but walked around on the lawn and when she did so she had forgotten that the steel mesh was on the lawn.
In coming to his decision the primary judge considered, amongst other things, that:
- each piece of iron or steel in the mesh had an end which itself provided danger to persons seeking to traverse it, and it therefore provided an obvious tripping risk;
- in daylight the risk the mesh constituted would be "fairly obvious", but at night it was not obvious, and it was not "the usual sort of risk one would encounter on a suburban lawn"; and
- a reasonable man in the defendant's position would have foreseen that his conduct in placing the mesh on the front lawn involved a risk of injury to a class of persons (meaning, amongst other things, any person who had any lawful reason to enter the property) that included the plaintiff.
Ultimately the primary judge concluded that, given the magnitude of the risk, the degree of probability of a risk occurring, along with the expense, difficulty and inconvenience of taking any alleviating action and conflicting responsibilities which the defendant may have, there was no need for the mesh to be there and the defendant ought to have removed or illuminated it at night.
The defendant appealed against the finding of negligence.
Court of Appeal
The appeal was brought by the defendant on the grounds that the primary judge, applying ss 5B and 5C of the CLA, erred in his conclusions.
Was the risk "not insignificant"? - s 5B(1)(b)
Counsel for the defendant did not take issue that the risk of someone injuring themselves by tripping on the mesh was foreseeable, in accordance with s 5B(1)(a). However, it was submitted that the risk was insignificant and therefore s 5B(1)(b) had not been satisfied.
This submission was made on the basis that, amongst other things:
- on the evidence, the only person, other than the children, who might have been in the area at any time whilst the defendant was away, was the plaintiff;
- there was no reason to anticipate that a person attending the premises at night and attempting to access the back door would not have the benefit of the external lighting. In this case it had been turned off by the children, but for an unusual reason;
- the plaintiff was the defendant's neighbour and was familiar with the area;
- the plaintiff knew of the presence of the wire mesh prior to her accident;
- the mesh was small and was sitting on the front lawn and did not pose a risk to anyone except a person walking in the area without shoes at night.
Campbell JA, in delivering the unanimous judgment, did not accept the above submissions, noting that the "risk" referred to in s 5B(1)(b) is not to be identified solely by reference to the risk that the plaintiff might harm herself, rather it was to be understood with reference to the definition of "harm" found in s 5, which, in this particular matter, referred to "personal injury or death". This was to be contrasted with the "particular harm" referred to in s 5D(1), which is the harm that the particular plaintiff has sustained.
Section 5B of the CLA requires the risk to be assessed prospectively, that is, a risk of harm that has not yet happened, or in other words, a harm that might be suffered by anyone to whom the defendant owed a duty of care as a consequence of the failure to take the precautions referred to in s 5B(1).
Campbell JA noted that:
- apart from the particular circumstances that resulted in the plaintiff attending the premises, as a matter of common knowledge it was "foreseeable that domestic premises in a town could be visited by a variety of people. There was nothing to stop anyone who might be so inclined from opening the front gate of the premises and walking onto the front lawn";
- whether the risk of leaving the mesh there was "not insignificant" was to be judged as at the time it was left there, and therefore the plaintiff's knowledge of the presence of the mesh prior to the accident did not mean that the risk was "not insignificant";
- the risk of harm that arises from a failure to take a precaution is the risk of all the harm that might be caused to a person who is owed a duty of care by the failure to take that precaution. It is not just the risk of the particular type of harm that befell a plaintiff; and
- the standard for a risk being "not insignificant" is not particularly high, referring to Macfarlan JA in Shaw v Thomas 2 , who, in approving Mason J's comments in Wyong Shire Council v Shirt, confirmed that the requirement set out in s 5B(1)(b) is not much more demanding than the risk being "not far-fetched or fanciful" and "real and therefore foreseeable".
In conclusion, Campbell JA found that it was foreseeable that a visitor might encounter the mesh, might trip on it, and thereby there was a risk that injuries that were more than insignificant might result.
Precautions of a Householder - s 5B(1)(c)
Campbell JA did not agree with the primary judge's finding that a reasonable person in the defendant's position would have taken precautions against the risk of harm. In coming to his conclusion, Campbell JA considered the line of authority concerning the reasonable care adopted by householders, in particular:
- Neindorf v Junkovic 3 , where the High Court held that a householder was not liable when a visitor to the premises tripped on an uneven surface in the driveway of his home while attending a garage sale. That accident occurred in daylight and arose from a static condition of the premises; and
- Jaenke v Hinton 4 , where the Queensland Court of Appeal held that a householder had not breached a common law duty of care when a milk deliverer injured herself when, at night, she tripped on a hose on the householder's lawn. The plaintiff in that case was familiar with the premises, had observed the hose in the yard previously, and had a torch.
This line of authority deals with the question as to the extent to which it is reasonable to require occupiers to protect entrants from a risk of injury associated with the condition of the premises, and confirmed the general principle that in all cases the duty is essentially one of reasonableness. An occupier cannot be expected to eliminate all possible hazards or remove defects, such as imperfections in concrete driveways, which are endemic in all but the most obsessively-maintained premises.
Would a reasonable person have taken those precautions? – s 5B(2)
Section 5B(2) provides 4 criteria when determining whether a reasonable person would have taken precautions against a risk of harm, these being:
Section 5B(2)(a) - the probability that the harm would occur if care were not taken:
In this respect Campbell JA took the following circumstances into consideration:
- it was on private property;
- it was not the ordinary means of access from the front gate to the front door and people unfamiliar with the defendant's habit of locking the security door and who visited the premises would not have taken a path encountering the mesh;
- an occupier of land, considering what reasonable care requires of himself, is entitled to take into account that trespassers are the exception rather than the rule;
- the particular sequence of events leading to the subject accident were "most unusual";
- given the particular characteristics of the mesh, the risk of someone wearing sandals or thongs tripping on the mesh was slight; and
- only a highly inattentive visitor would have suffered a risk of tripping on the mesh during daylight hours.
Section 5B(2)(b) - the likely seriousness of the harm:
In this respect, Campbell JA found that, whilst the plaintiff suffered some significant injury (including aggravation of pre-existing degenerative disease in her lumbar spine), it was unlikely that anyone who suffered an injury as a consequence of encountering the mesh would have suffered injuries as serious as that.
Section 5B(2)(c) - the burden of taking precautions to avoid the risk of harm:
Campbell JA noted that it was necessary to consider not only the very small burden that would have been involved in picking the mesh up, or lighting it, but also the burden of taking precautions to avoid any similar risks of harm that were in the defendant's yard.
Section 5B(2)(d) - the social utility of the activity that creates the risk of harm:
In this respect Campbell JA noted that while aesthetic factors such as presenting a well-maintained lawn to the street are not to ignored, it had "quite slight" social utility.
Ultimately, Campbell JA concluded that it was not uncommon for householders to leave objects lying on their lawn like a hose, a gardening tool, a child's toy, or other obstructions such as a tap or garden furniture. A reasonable householder would take no precautions concerning such objects in case people came onto his or her property at night, and many householders would therefore be surprised to be told that reasonable behaviour required hem to clear all obstacles form the lawns before each nightfall. Accordingly, the defendant did not fail to take reasonable care by leaving the mesh where it was and unlit.
This matter serves to confirm the standard of reasonableness that will be applied to accidents that occur to lawful entrants on residential property, applying the principles in ss 5B and 5C of the CLA.
The decision also provides further guidance for factors to be taken into account when considering any breach on the part of an occupier of residential property, noting that the underlying principle of reasonableness is paramount.
The standard of care owed by the occupier of residential premises is lower than that expected of an occupier of commercial premises and highlights the difficulties faced by plaintiffs in proving breach of duty in householder cases.
1 Campbell and Hoeben JJA and Tobias AJA
2  NSWCA 169
3  HCA 75
4  QCA 484
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