Court of Appeal finds that a plaintiff must adduce evidence supporting a positive inference implying negligence on the part of the defendant which must rise above the level of conjecture to support a finding of breach of duty of care.
Judgment date: 16 July 20091
Condos v Clycut Pty Limited  NSWCA 200
- A plaintiff must adduce evidence supporting a positive inference implying negligence on the part of a defendant which rises above the level of conjecture. The inference must be considered more probable than other possibilities. It must go beyond speculation in order for a breach of duty of care to be found.
- The Court of Appeal decided that there was insufficient evidence of the precise mechanism of injury, including the configuration of any barricade which struck the plaintiff, evidence of how the barricade was secured and that it was capable of being moved by high winds, for a court to draw an inference that either the occupier of the premises or the security company had failed to take reasonable care to avoid a foreseeable risk of injury to the plaintiff.
- Further, the Court of Appeal held that the plaintiff had failed to establish that either defendant did, or did not do, something in relation to a barricade on the day in question which would support a finding that they failed to respond to a foreseeable risk. Accordingly, it was determined that, based on the plaintiff's evidence, a court was unable to conclude, as a matter of probability, that either defendant breached its duty of care to the plaintiff.
On 23 March 2005 at about 9.00 am, the plaintiff alleged that he was walking through the Pacific Square Shopping Centre at Maroubra when a barricade fell over due to high winds and struck him. The owner of the shopping centre, Clycut Pty Limited (Clycut), was the occupier of the premises but delegated the operation and management of the centre to Jones Lang LaSalle. Clycut also engaged the service of a security firm, Reflections Security Pty Limited (Reflections) to ensure the safety of the building and everyone entering it.
The plaintiff was born in Greece and gave evidence in somewhat broken English which was at times difficult to transcribe. The plaintiff alleged he fell outside a shop called Wokmaster in the middle of a passage, on a windy and rainy day. The plaintiff recalled that he had seen some type of barricade outside this shop in the days prior to the incident.
On 23 March 2005, the plaintiff stated that he was suddenly struck down causing injury to his leg. He was taken to a medical centre by a security guard, Mr Hasan. The plaintiff did not know what caused him to fall. Rather, he overhead Mr Hasan saying at the medical centre that he had been hit by a barricade. Mr Hasan was not called to give evidence at trial but an Incident Form which he completed, stating the plaintiff was hit by a barricade which fell over in very wet and windy weather, was adduced.
The substantial issue at the District Court hearing was what caused the plaintiff's fall. The plaintiff relied upon Mr Hasan's statement in the medical centre and the Incident Report to establish that the barricade had struck him. Significantly, the plaintiff was unable to identify the barricade except to say that some were different to the barricades he had seen days before the fall. Contradictory evidence was also presented as to why barricades would have been in position in front of the shop in the first place with the plaintiff saying it was due to tiling, Mr Hasan saying it was due to a broken window, and the owner of Wokmaster, Mr Hee having no recollection of either of those events occurring.
The plaintiff relied upon an ergonomic and safety management consultant expert, Dr Adams, who assumed the plaintiff had been struck by a particular barricade and that this barricade had been dislodged by a gust of wind. However, Dr Adams could not be confident about wind speed or wind direction.
District Court Decision
Goldring DCJ of the District Court delivered an ex tempore judgment on 9 September 2008. He found it significant that the plaintiff did not remember anything about the incident and that there were no eyewitnesses to the fall. He was of the view that the failure of either party to call Mr Hasan could only infer that his evidence would not have assisted the parties.
Whilst Judge Goldring accepted that it was wet with extremely strong southerly winds on the day of the incident, he stated that the plaintiff would still have to show that the existence of the barricade and the fact it fell over was in some way related to the negligence of either Clycut or Reflections. Ultimately, it was decided that the plaintiff had failed to adduce evidence that either Clycut or Reflections did or failed to do anything that was unreasonable in relation to the barricade. Judge Goldring therefore concluded that, on the balance of probabilities, the plaintiff failed to show that either Clycut or Reflections owed a duty of care to it in the circumstances, or that that duty had been breached. A verdict was entered for the defendants.
McColl JA delivered the unanimous judgment of the Court of Appeal.
On appeal, the plaintiff argued that Judge Goldring had erred in finding that the plaintiff had failed to prove either Clycut or Reflections owed it a duty of care or that a duty of care had been breached. It was also argued that Judge Goldring erroneously ignored evidence of Reflections' knowledge of the barricades and evidence that the barricade was likely to be capable of being moved by the high winds. It was further argued that in the absence of any other explanation, it should have been found that the barricade struck the plaintiff because it was blown onto him.
The plaintiff submitted that Clycut, as the owner and occupier of the premises, had effectively absented itself and not effectively delegated its obligations as occupier to Jones Lang LaSalle. Accordingly, it was argued that Clycut had a residual duty of care to ensure the premises were safe. It was then argued that the presence of the barricade was not safe and that this was sufficient to demonstrate that Clycut had breached its duty of care.
In response, Clycut submitted that there was no evidence it had done, or failed to do, anything in relation to the barricade and that the appointment of Jones Lang LaSalle was evidence of Clycut discharging its duty of care. It contended there was no evidence that Clycut knew, or should have known, anything at all about the presence, existence or stability of any barricade in the area. It was also argued there was no evidence that the danger of the barricade being blown over due to high winds was foreseeable by Clycut.
Reflections argued that the plaintiff had failed to establish that it had caused or contributed to the incident of 23 March 2005. It was further submitted that the plaintiff had failed to establish that he was within a relevant class of persons to whom Reflections owed a duty of care and had failed to establish there was any breach of such a duty by Reflections. Significantly, Reflections argued that the plaintiff had never established the identity, nature, weight or structural details of any barricade which may have hit him and did not establish where any barricade came from or why it was in the position where the plaintiff may have encountered it. In addition, it was submitted by Reflections that there was no evidence that the wind was sufficient to dislodge any barricade.
In relation to the question of duty of care, the Court of Appeal decided that Clycut owed a duty of care to the plaintiff, as a lawful entrant to the centre, by virtue of its power of control. This was a duty to take reasonable care to avoid foreseeable risk of injuries, in accordance with the decision found in Wynn Tresidder Management v Barkho2 (Wynn Tresidder).
However, it was noted that an occupier's duty of care could be discharged by the occupier's exercise of reasonable skill and care in engaging someone else to take steps to keep the property safe, in accordance with the decision of Bevillesta v Liberty International Insurance3. The Court found that Clycut had delegated its responsibility to operate and manage the centre to Jones Lang LaSalle and that it had delegated its security obligations to Reflections. Significantly, the plaintiff had accepted the delegation of duty to Jones Lang LaSalle.
With respect to Reflections, it was held that they also owed the plaintiff a duty to take reasonable care to avoid a foreseeable risk of injury by nature of the Security Services Agreement with Clycut.
Despite finding that both Clycut and Reflections owed the plaintiff a duty of care, the Court of Appeal held that Judge Goldring had not erred in concluding that the plaintiff had failed to establish that either had breached any duty of care. The Court referred to the requirement that the plaintiff adduce evidence supporting a positive inference implying negligence by the defendants, which must rise above the level of conjecture and go beyond speculation. The Court mentioned numerous cases in which it was held that a plaintiff must present evidence that the more probable inference is that the injury arose from the defendant's negligence.
Relevantly, it was noted that the plaintiff had never established the nature of the barricade which had struck him, that the barricade was likely to be capable of being moved by high winds, its position prior to allegedly hitting the plaintiff, evidence of how the barricade was secured prior to the fall, and evidence of the likely direction and speed of the wind at the time. It was therefore held that there was no evidence above the level of conjecture regarding the cause of the plaintiff's injuries. The Court was unable to infer that either Clycut or Reflections had failed to take reasonable care to avoid a foreseeable risk of injury as the plaintiff had failed to establish that either of the defendants did, or did not, do something in relation to the barricade on the day in question which would support a finding that they failed to respond to a foreseeable risk.
The Court also criticised the failure of the plaintiff to raise the issue of whether or not Jones Lang LaSalle had effectively discharged its duties under its agreement with Clycut. The Court considered this argument was necessary before a conclusion could be drawn that Clycut had some residual obligations to the plaintiff which it had breached, based on the decision in Wynn Tresidder.
Ultimately, the Court of Appeal held that, based on the plaintiff's evidence, the Court was unable to conclude, as a matter of probability, that either Clycut or Reflections breached its duty of care to the plaintiff. As an aside, the Court of Appeal also criticised Judge Goldring's failure to precisely determine damages with respect to non-economic loss, instead of ordering that a range of between 28% to 30% of a most extreme case was appropriate. The plaintiff's appeal was dismissed with costs.
This case clearly supports the proposition that an occupier will have an overriding duty of care to avoid a foreseeable risk of injury to members of the public by virtue of its power of control, but that this duty may be delegated to third parties. It is important in cases involving occupiers that evidence be adduced of the extent of the delegation of duties and whether the third party has effectively discharged those duties.
An important implication arising from this case is that claims against occupiers will not be successful unless a plaintiff can adduce specific evidence as to the exact cause of injury before it is accepted that the injury was foreseeable and that there has been a breach of duty of care. Evidence which is purely conjecture or speculative will not be used by a court to infer negligence. Rather, evidence must demonstrate that it is more probable than not that an injury arose from the defendant's negligence rather than some other non-negligent cause.
1. McColl JA, Campbell JA and Macfarlan JA
2.  NSWCA149
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.