IN BRIEF - MANAGEMENT OF SITE OBLIGATIONS DIFFER TO DESIGN OF PREMISES
Declaration of interest: Colin Biggers & Paisley acted for the architect in the Turner proceedings at first instance and on appeal.
Two New South Wales Court of Appeal cases examining the duty of care obligations of occupiers compared to architects provide lessons for litigators in personal injury claims where some design fault is alleged.
OCCUPIER FAILS IN ITS ARGUMENT THAT ITS DUTY OF CARE HAD BEEN DELEGATED TO THE ARCHITECT
In 2012, the New South Wales Court of Appeal in Indigo Mist Pty Limited v Palmer  NSWCA 239 considered the liability of an occupier and an architect in relation to circumstances where a patron slipped on the internal stairs in a hotel. In that case, the occupier sought to argue that they had delegated their duty of care to a patron of the hotel, to the architect.
Hoeben JA, with whom Beazley JA agreed, found that this proposition was misconceived. The architect had responsibility for the implementation of the refurbishment of the hotel, including the design of and materials used in the stairs. It had no responsibility for the management or day-to-day running of the hotel.
The content of the duty owed by the occupiers was not only to provide safe premises, but to exercise reasonable care to conduct the hotel premises so as to avoid exposing patrons to a foreseeable risk of harm. In the first instance in that case and on appeal, it was found that management of the hotel gave rise to different obligations to those associated with the design of the hotel.
PATRON FALLS IN GARDEN BED ADJOINING HARRINGTON GROVE COUNTRY CLUB'S CARPARK
In Harrington Estates (NSW) Pty Ltd t/as Harrington Grove Country Club v Turner  NSWCA 369, the Club appealed against the decision of Hatzistergos DCJ who had found for Mr Turner (a patron injured in a fall at the Club in 2011) and found no liability in the architect.
Mr Turner was injured in the following circumstances. He was attending the wedding reception of his daughter at the Club. He had reversed his car into a parking bay in one of the Club's carparks. At the rear of the parking bay was a concrete kerb and immediately beyond the kerb was a garden bed. Mr Turner was returning to his car at approximately 10.30pm to place the wedding cake in the boot. His evidence was that he noticed the garden to the rear of his car, walked to the rear, opened the boot electronically and then walked in a crab like fashion along the kerb to place the wedding cake in the boot. As he closed the boot of the car, he stepped back into the garden bed. The garden bed contained plants growing to approximately the level of the carpark but the drop ranged between 720 and 810mm from the bottom of the garden bed to the top of the kerb.
Mr Turner had accepted in cross examination that he was not familiar with how deep the garden bed was, that he was "prepared to step back into it without knowing that fact" and that he did not look behind himself as he stepped back. At first instance, Hatzistergos DCJ ordered a verdict for Mr Turner against the Club, reducing it by 15% for contributory negligence.
ARCHITECT ARGUES THAT IT HAD ACTED APPROPRIATELY
The architect's evidence at first instance was that it had acted entirely appropriately, principally on the basis that the Building Code of Australia only required the installation of a balustrade when there was change of level exceeding 1m and because the change of level was reasonably detectable at day and night by reason of the lighting of the carpark.
The primary judge found in relation to the Club that the risk of injury was foreseeable and not insignificant, the cost of preventative action was a balustrade which was ultimately installed for the sum of $4,760 and that the Club's failure to install the balustrade caused Mr Turner's injury in accordance with section 5D of the Civil Liability Act 2002.
The architect contended in the Court of Appeal that the primary judge was correct to find that a reasonable person in its position would not have designed a balustrade.
COURT OF APPEAL CONSIDERS ARCHITECT'S LIABILITY IN SPITE OF NO APPARENT BREACH OF BUILDING CODE
Leeming JA delivered the judgment of the Court of Appeal. His Honour noted that the carpark and adjoining garden bed were plainly a small component of a relatively large project. The architect's involvement with the project concluded some 18 months before Mr Turner's accident.
The architect accepted before the Court of Appeal that mere compliance with building standards was relevant to but not dispositive of, whether there had been any breach of duty.
The primary judge had been satisfied that the risk of harm was the risk of stepping into an unguarded garden bed separated from a carparking area by a small kerb with a sudden drop in level. The primary judge applied section 5B of the Civil Liability Act and concluded that the risk of injury was foreseeable, that the probability of harm in circumstances where the depth of the garden was observable, was low, although the likely seriousness of the harm was high.
The Court of Appeal found that although it was not shown there had been any breach of the Building Code of Australia:
- the carpark was in a club, which would have numerous patrons, including those who were unfamiliar with the layout of the carpark, who might be attending at night and who might have consumed alcohol
- such patrons would have occasion to go to the rear of each car space within the carpark
- the plants in the sunken bed behind the carpark were intended by the architect to grow and they did in fact grow, and
- it was plain the architect had designed a landscape next to the rear of the carpark which amounted to a sharp drop, the extent of which was apt to be obscured when the plantings became established
THE EVIDENTIARY BURDEN
In discharging the evidentiary burden, the Court of Appeal:
- did not regard it as necessary for Mr Turner to present evidence as to whether the architect knew of the precise plantings and foliage present when he fell
- did not regard it as necessary for Mr Turner to have done more than what had been done, namely to demonstrate the scope of the architect's retainer, the fact that it knew that plants had been planted in the sunken garden bed and the fact that they had grown by the time of his injury
- found there was no suggestion that the Club had replanted the bed with a different species of which the architect was unaware, and
- took the view that the architect must be taken to have known that at some time in the future, it was on the cards that [the plants that had grown] would obscure the height difference between the carpark and the sunken garden bed
OCCUPIER'S DUTY NOT DELIMITED HERE BY TURNER'S OWN
In considering the liability of the Club, the Court of Appeal found that whilst it is true that an occupier's duty is delimited by the expectation that users will exercise reasonable care for their own safety, the Club's submission must be rejected once it is appreciated that the true depth of the sunken garden bed was concealed by the plantings in it. It should have been known to the Club, as it occupied the site and maintained the carpark and garden bed, that there was a drop.
BREACH OF DUTY OF CARE FOUND TO BE PARTLY ATTRIBUTED TO ARCHITECT
The Court of Appeal found that the breaches by the Club and the architect caused Mr Turner's injury. Contribution was determined at 75% to the Club and 25% to the architect.
The Court of Appeal stated that the responsibility of the Club was appreciably greater than that of the architect. The Club occupied the site and maintained the gardens and had actual notice of when and to what extent the drop was obscured by the vegetation. The architect had designed a landscape at the rear of the car parking space which was apt to conceal, when the vegetation became established, the depth of the drop.
OCCUPIERS SHOULD BE AWARE THAT MAINTENANCE AND MANAGEMENT OF SITE CARRIES DIFFERENT OBLIGATIONS TO DESIGN OF PREMISES
The occupier's duty of care needs to be considered in light of its responsibility for the management and day-to-day running of the premises in question. Whilst in some circumstances this responsibility can be delegated, the obligations in relation to that day-to-day running of the premises and their management differ from obligations associated with design of the premises.Paul Bannon
Insurance and reinsurance
Colin Biggers & Paisley
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.