NSWCA 331
Giles JA, Tobias JA and Handley AJA
- The Court of Appeal had to determine whether the correct process of reasoning was undertaken by the trial judge in respect of the trial judge's finding of the defendant's negligence where the plaintiff fell on slipway rails.
- The plaintiff who was 75 years old at the time of the accident fell on a set of slip rails at the defendant's boat shed.
- The plaintiff arrived at the boat shed at 5.30am when it was still dark. He proceeded through the slipway gates and across three sets of slip rails to the ice room where he collected approximately 15 kg of ice in a 20 kg capacity bucket. On the return journey to his car he fell on one of the slip rails. The plaintiff said that he was looking down at the rails as he stepped over them but he could not see them because it was dark and they were rusted and black. Although it was the plaintiff's case at trial that there was no lighting or illumination the trial judge found that the plaintiff was mistaken in relation to the state of lighting at the time of his fall and that the defendant had provided adequate lighting.
District Court Decision
- In finding for the plaintiff, Judge McLoughlin made a number of findings including the following:
- the defendant owed the plaintiff a duty to take reasonable care for his safety in traversing the slipway, whether by day or by night, in order to gain access to the ice room;
- the defendant had provided adequate lighting to the area;
- the danger could have been removed by the installation of a concrete ramp leading up to and across each set of slip rails, which would have permitted the three sets of rails to be traversed without each rail having to be negotiated by stepping over it, and by painting the rails yellow;
- the plaintiff failed to recognise the difficulty of traversing the slip rails burdened by the weight of up to 20 kg of ice given his advanced years;
- the plaintiff in his desire to have the ice on his boat and launch his boat, momentarily overlooked the difficulty in traversing the slipway rails on his return journey, because of his age and because he was carrying a very heavy bucket of ice;
- the plaintiff was unaware that carrying the ice would make it more difficult for him to traverse the railings upon which he fell. As such his Honour expressed the view that the presumption of awareness of the relevant risk had been rebutted;
- his Honour found that given the description of the slipway, the risk of bumping into or tripping over a sliprail was one which was obvious within the meaning of s 5F of the Civil Liability Act 2002 and that the plaintiff was aware of the risk. However his Honour considered this was not a warning case and that the risk could easily have been removed by the use of concrete ramping and yellow illuminating paint replacing the dark bold rusty finish that was in existence at the time of the plaintiff's fall;
- in February 2004 when the defendant's premises were being reconstructed and/or renovated, a concrete ramp to enable the sliprails to be traversed without stepping over each one was installed and the rails, where they passed through the concrete apron, were painted yellow. However his Honour stated the evidence did not establish that this work was carried out as a consequence of the accident that befell the plaintiff.
- Therefore the defendant was in breach of its duty of care to the plaintiff.
- The defendant appealed the decision on the basis that the trial judge had failed to apply the "balancing" principles in accordance with the decision of Wyong Shire Council v Shirt (1980) 146 CLR 40. The defendant also contended that his Honour erred by failing to give adequate reasons as to the "dominant" consideration in determining whether the defendant had breached his duty of care to the plaintiff, namely, the obviousness of the risk confronting the plaintiff.
Court of Appeal Decision
- The Court of Appeal upheld the appeal, and held that the trial judge had failed to correctly apply the principles set out in Wyong Shire Council v Shirt.
- Tobias JA who delivered the unanimous verdict considered the trial judge's reasoning was difficult to follow and erroneous. Tobias JA stated this was because the trial judge asked himself the wrong question. In particular, having accepted that there was a duty upon the defendant to take reasonable care for the safety of the plaintiff, given its knowledge that its elderly members traversed the three sets of sliprails in order to access the ice room so that it was reasonably foreseeable that such persons might trip over one of the exposed sliprails, his Honour failed to determine the reasonable response of a person in the position of the defendant to that risk.
- The trial judge failed to recognise that the defendant did not owe a duty of care to its members to ensure that no harm befell them when traversing the slipway area but only a duty to take reasonable care. Secondly, the relevant enquiry is prospective and not retrospective. It is wrong to focus exclusively upon the particular way in which the accident came about.
- The enquiry into breach, although made after the accident, must attempt to answer what response a reasonable person, confronted with a foreseeable risk of injury, would have made to that risk. One of the possible answers to that enquiry must be "nothing".
- The law as it currently stands in relation to an occupier's duty of care is set out by the High Court in the Shirt decision and was reaffirmed in Wyong Shire Council v Vairy (2005) 223 CLR 422. Those decisions are authority for the proposition that breach of duty needs to be considered in light of what a reasonable person would have done to avoid the risk of reasonably foreseeable injury.
- The factors to be taken into account when applying the Shirt principle include a consideration of the magnitude of the risk and the degree of the probability of its occurrence.
- Tobias JA stated it could be fairly said in the present case that the magnitude of the risk was neither high nor low in that a person tripping on a sliprail and falling was likely to sustain some injury to himself or herself but not necessarily one that was catastrophic. On the other hand, the probability of its occurrence in the present case was low given that the evidence was that there had been no similar incident in the memory of those who gave evidence.
- Obviousness of the risk within the meaning of s 5F of the Civil Liability Act to the plaintiff was irrelevant other than for the purposes of s 5G of the Act or on the issue of contributory negligence. Obviousness to the defendant, however, was of relevance in considering the probability of occurrence of the risk in question for the purposes of applying the Shirt formula.
- The Court of Appeal confirmed that the obviousness of a risk of injury is not determinative of breach of duty. The fact that a risk was obvious does not necessarily exculpate a defendant in circumstances where the plaintiff may not have been aware of the risk. This approach was affirmed by the High Court in Roads & Traffic Authority of NSW v Dederer  HCA 42 where the High Court held that a breach of duty needs to be considered in light of what a reasonable person would have done to avoid the risk of injury. This approach places emphasis on whether a defendant's response to the risk of injury was reasonable and is consistent with the principles in Shirt.
- than one of reasonable care. Given that the determination of breach of duty must be one which is determined prospectively and not retrospectively without the benefit of hindsight, in his Honour's opinion the exercise of reasonable care did not require the defendant to take any steps to eliminate the relevant risk other than that which it had already taken, namely, to ensure that the relevant area of the slipway was fully illuminated at night.
- His Honour stated it followed from the foregoing that the primary judge erred in failing to apply the Shirt formula in order to determine whether the defendant was in breach of its duty of care to the plaintiff. Had he done so, he ought to have concluded that the failure of the defendant to provide an access ramp across the sliprails in order to provide a level surface for persons such as the plaintiff to traverse and/or its failure to define the height of the sliprails by painting them with phosphorescent paint, given that the rails were clearly visible both during the daytime and at night, did not constitute a breach of that duty.
- Accordingly the appeal was allowed.
- The process of reasoning applied in the Shirt formula remains the guiding principle in the law of negligence, namely that breach of duty needs to be considered in light of what a reasonable person would have done to avoid the risk of reasonably foreseeable injury.
- This case confirms that the determination of breach of duty must be determined prospectively and not retrospectively without the benefit of hindsight and that one cannot look at steps taken by a defendant after an incident to argue that it was unreasonable for a defendant not to have adopted that course in order to eliminate the relevant risk.
- The fact that steps were later taken out by the defendant, for reasons unconnected with the plaintiff's accident, to install a concrete ramp to enable the sliprails to be traversed without stepping over each one and were painted yellow, even if this work was a direct result of the Plaintiff's accident, was not determinative of liability. In this regard s 5C (c) of the Civil Liability Act provides that the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.
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