Australia: Section 5B(1) Of The Civil Liability Act – Consideration Of Precautions To Be Taken By A Reasonable Person To Avoid The Risk Of Injury Caused By Failure Of Lighting

Judgment date: 18 August 2009

Penrith Rugby League Club Limited t/as Cardiff Panthers v Elliot [2009] NSWCA 247

Court of Appeal¹

In Brief

• In considering claims for negligence, the Court must make specific findings in relation to the precautions which a reasonable person in the defendant's position would have taken, having regard to the matters specified in s 5B(2) of the Civil Liability Act 2002.

• A duty of care should not be described in terms of "ensuring" that a particular event will not occur. Rather, a duty of care should be limited to taking reasonable steps to prevent that particular event from occurring. It is impermissible for the Court to expand the content of the duty of care from a duty to take reasonable care to a duty to avoid any risk by all reasonably affordable means.

• Section 5B provides as follows:

Background

On 4 September 2004 at about 6.30pm, about 50 minutes after sunset, Yvonne Elliot (plaintiff) alleged that she slipped and fell on twigs which were on the ground of a car park approximately 4.6 metres from the rear entrance/exit of the Penrith Rugby League Club Limited t/as Cardiff Panthers (Club). The Club had installed two external floodlights which operated on a photo-electric cell so they were automatically switched on at sunset. However, at the time the plaintiff fell, these lights were not illuminated.

District Court Decision

The primary judge, Sidis DCJ, found that the surface of the car park did not contribute to the plaintiff's fall, that the lighting was adequate for the car park area when the illumination was operational and that the presence of small twigs on the surface of the car park was a significant hazard considering the lights were not functioning.

There was no evidence that the lighting system in place provided a warning when the lighting system failed to operate nor evidence that there was a system in place to check that the lighting became operational at the programmed times. Rather, the Club's system depended on a casual reporting of the lights malfunctioning, which the primary judge considered was not reasonable in the circumstances. It was held that the absence of lights caused a foreseeable risk of harm to patrons at the Club and that a reasonable response would have been to:-

"Provide a system of ensuring that the external lights that operated by means of an automatic system were in fact functioning by the time it was dark."

It was therefore held that the Club was in breach of its duty of care to the plaintiff in failing to provide adequate lighting in the car park. The primary judge awarded 26% of a maximum sum for non-economic loss for the plaintiff's bilateral wrist fractures with ongoing moderate levels of pain and discomfort and compensation for other heads of damage, totalling $114,601.

On Appeal

Sackville AJA delivered the unanimous judgment of the Court of Appeal.

Submissions

On Appeal, the Club challenged the primary judge's finding that the Club had breached its duty of care and that the breach had caused the plaintiff's injuries. The Club accepted that there was a foreseeable risk of injury to patrons of the Club who were at risk of injury from a fall if the lighting in the car park was inadequate. It was also accepted that the risk was not insignificant. However, the Club argued that the primary judge had applied an incorrect standard to the finding that a reasonable response to the risk was to "ensure" that the external lighting was in fact functioning by the time it was dark. Significantly, it was argued that the primary judge did not identify the precautions that a reasonable person in the Club's position would have taken to guard against the risk of harm and that a system of "ensuring" that the external lights were functioning was too high a standard.

The Club submitted that there was no evidence as to what caused the two external lights to either not illuminate or to cease operating. Nor was there evidence of past failure of both lights such as to require a system of inspection or constant monitoring, as distinct from a system that reacted to reports of failure. As there was no evidence as to whether the lights had come on at sunset but, for some reason, subsequently ceased, the Club argued that even if it was under a duty to check that the external lights had come on at sunset, there was nothing to indicate that the lights did not in fact come on at that time. It was therefore argued that the primary judge had erred in finding the Club had breached its duty of care and had failed to establish on the balance of probabilities that any breach of duty by the Club had caused the plaintiff's injuries.

The plaintiff submitted in response that the primary judge had provided reasons for her findings that the Club could have satisfied its obligation to ensure the floodlights were operational by either installing an automatic alert system for malfunctions or allocating to staff members the responsibility of checking the operation each evening. It was therefore argued that the primary judge had applied the correct test. It was further submitted that the Court of Appeal should make a finding that the most likely cause of the lack of illumination at the time of the plaintiff's fall was that a manual switch had been turned off and that a simple system of checking the lighting when darkness fell would have detected the problem and avoided the injury to the plaintiff.

Decision

The Court of Appeal referred to s 5B of the Civil Liability Act 2002 as setting out requirements that must be satisfied before a person can be found to be negligent.

The Court of Appeal approved the decision of Waverley Council v Ferreira² that a duty of care should not be described as "ensuring" that a particular event would not occur. Rather, the duty was limited to taking reasonable steps to prevent the particular event from occurring. Whilst the primary judge in this case found that the Club should have provided a system that ensured that the external lights were operational, it was found that there was insufficient evidence or explanation to justify that finding nor the implication that the system would have ensured that the floodlights were operational at the time of the plaintiff's fall, some 50 minutes after sunset.

It was noted that the fact that the floodlights were not operating at the time of the accident does not, of itself, establish that the Club breached its duty of care to the plaintiff. It was also noted that the primary judge had fallen into the error identified in Waverley Council v Ferreira and had failed to make findings as to the precise precautions a reasonable person in the Club's position could and should have taken to minimise the risk that both floodlights would be inoperative at the time of the plaintiff's fall.

The Court of Appeal found the Club could not be held liable for a failure to take precautions against harm unless a reasonable person in the Club's position would have taken the precautions having regard to the matters specified in s 5B(2) of the Civil Liability Act.

The Court of Appeal found that there were five issues relating to the absence of evidence which impacted on the question as to whether it should be inferred that the Club breached its duty of care and that the breach caused the plaintiff's injury. These issues were:-

1. There was no evidence or finding as to the reason why the two external floodlights were inoperative at the time of the plaintiff's fall, such as failure of the sensor, vandalism, the use of an override switch, a power failure or some other cause. The Court also noted evidence from a longstanding employee of the Club that, to his knowledge, both floodlights had never been inoperative at the same time.
2. There was no evidence as to the precise risk of failure of the floodlights against which the Club might reasonably have been expected to take precautions, such as the likelihood of a malfunction.
3. There was no evidence as to whether the floodlights had failed to come on at any time after sunset (5.38pm) or whether one or both had come on at sunset but had ceased to function before 6.30pm.
4. There was no evidence as to whether it was technically feasible to install a mechanism that would alert staff of the Club to the failure of both floodlights nor evidence as to the cost of installing such a system.
5. There was no evidence as to what measures the Club should reasonably have taken to remedy a failure of external lighting once such a failure was discovered. The Court noted there may have been a delay before the specific defect could be identified and rectified and that there was no evidence as to what steps the Club should reasonably have taken, if any, to warn patrons as they left the Club in darkness.

The Court of Appeal held that there was an absence of evidence as to the nature and source of the risk that the floodlights would fail to support the primary judge's finding that the Club should have conducted a visual check of the floodlights at, or very shortly, after sunset. The Court of Appeal stated that there was a danger in extrapolating from particular circumstances of an injury to a plaintiff a duty on the defendant to have prevented that injury and noted, with support, the decision of Rasic v Cruz³ that it was impermissible to expand the content of a duty of care from a duty to take reasonable care to a duty to avoid any risk by all reasonably affordable means.

Ultimately, the Court of Appeal held that there was insufficient evidence to justify a finding that a reasonable person in the Club's position would have instituted a system of visual inspection of the floodlights at, or shortly before, sunset. It was therefore held that the primary judge erred in finding that the Club had a duty to provide a system of ensuring the external floodlights operated and that s 5B(1)(c) of the Civil Liability Act was not satisfied.

Although the Court of Appeal found that it was not necessary to consider the issue of causation, it was noted that there was an absence of evidence to justify a finding that even if the Club had complied with the duty of care formulated by the plaintiff, that, on the balance of probabilities, the plaintiff's injury would have been avoided (Civil Liability Act, s 5E). This was especially so in light of the absence of evidence as to the reason for the failure of both floodlights. The Court of Appeal allowed the Club's appeal and ordered that the judgment of the District Court be set aside and that a judgment for the Club be made in its place.

Implications

Pursuant to s 5B(1)(b) of the Civil Liability Act the concept of risk as "not far fetched or fanciful" applied in Shirt v Wyong Shire Council⁴ has been replaced with the concept of a risk that is "not insignificant": Drinkwater v Howarth⁵.

Section 5B of the Civil Liability Act does not of itself impose an obligation on a person to exercise reasonable care to avoid harm to another person. The section sets out the requirements that must be satisfied before a person can be found to be negligent in failing to take precautions against a risk of harm.

The Court is required to identify what a reasonable person in the position of the defendant would do by way of response to the reasonably foreseeable risk. The duty owed by a defendant is not to ensure that a particular event will not occur. The content of the duty is limited to taking reasonable steps to prevent a reasonably foreseeable risk.

Footnotes

1 Ipp JA, Basten JA and Sackville AJA

2 [2005] NSWCA 418

3 [2000] NSWCA 66

4 (1980) 146CLR 40

5 (2006) NSWCA 22

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.