Australia: "Occupiers Liability – Careless Or Inadvertent Plaintiff - Contributory Negligence": Skulander -V- Willoughby City Council [2007] NSWCA 116

Skulander-v-WilloughbyCityCouncil
[2007] NSWCA 116

Mason P, Beazley and Basten JJA

18 May 2007

• The fact that an accident would not have occurred but for a plaintiff’s inattention, while relevant to breach of duty, generally will not of itself negative a duty of care. This is particularly so when a plaintiff’s inattention is foreseeable by the surrounding circumstances.

• Particular care should be taken of hazards above eye level, as they are less readily seen by plaintiffs.

• The defendant council built a bus interchange at Chatswood. The defendant installed carbon monoxide detectors on pillars at the interchange, which were necessarily at about head height so that they could properly measure the exposure of pedestrians to carbon monoxide.

• Due to vandalism of these detectors, the defendant had built yellow steel cages around the detectors. These protruded 250mm from the pillars.

• The plaintiff caught a bus to the interchange and was to be collected by her husband. She walked along a footpath close to a wall, at the end of which was a pillar fitted with a carbon monoxide detector. As she walked, she dialled her mobile telephone to advise her husband of her arrival. While she was thus distracted, she walked past a caged detector, striking her head and causing a hyperextension injury to the neck.

• The plaintiff sued the defendant in the District Court. The matter came on for hearing before Hughes DCJ.

• While the defendant did not concede breach of duty of care, the plaintiff conceded that, due to her inattention, a finding of contributory negligence was appropriate.

• The trial judge found that the defendant did not owe the plaintiff a duty of care in the circumstances and entered a verdict for the defendant. He failed to determine the degree of contributory negligence and quantum of damages, in the event that he was incorrect on the question of primary liability.

• Each of the members of the Court of Appeal delivered a separate judgment. Beazley JA generally agreed with Basten JA, except as to the proper degree of contributory negligence. While Beazley and Basten JJA found the defendant to have been negligent, Mason P did not.

• All three judges found, contrary to the trial judge, that the defendant owed the plaintiff a duty of care. They differed as to whether this duty had been breached.

• Basten JA acknowledged that the metal cage posed a hazard principally to pedestrians failing to keep a proper lookout. A standard of care, however, must take into account the possibility that plaintiffs will be inadvertent: Brodie v Singleton Shire Council (2001) 206 CLR 512. Pedestrians in a busy bus interchange will have competing demands on their attention. Additionally, an obstacle above eye level will pose a greater risk than one below eye level, just as one at ankle height poses a particular risk, as in Gosford City Council v Needs [2003] NSWCA 144.

• Basten JA concluded that, since the prospect of a pedestrian striking her head gave rise to the risk of significant injury, it was not a risk that a reasonable person could reasonably disregard. The response to the risk was, in his view, straightforward. The defendant could have placed a rubbish bin below the cage to force pedestrians around it (as it did after the accident) or place a waist high handrail below the cage. He found the plaintiff to have been 50% contributorally negligent in the causation of the accident, based on her failure to keep a proper lookout while she used her mobile telephone.

• Beazley JA agreed generally with Basten JA. However, she assessed contributory negligence as 20%.

• Mason P noted that the defendant had not contravened any Australian Standard or other accepted standard for the construction and location of the sensors or cages. He reiterated that "safe" premises may nonetheless pose risks to the public: Jones v Bartlett (2000) 205 CLR 166, Hill v Chiaverini [2004] NSWCA 265.

• Mason P also observed that, had the defendant placed a rubbish bin or bollard beneath the cage, as suggested by the plaintiff, this would itself have posed a tripping risk to pedestrians.

• He noted that the cage had a relatively small protrusion, it was painted yellow and the plaintiff would not have struck it had she not been walking very close to the wall looking downwards. He found that, while the defendant owed the plaintiff a duty of care, that duty had not been breached.

• Most of Mason P’s judgment concerns the proper disposition of the appeal. No two judges agreed on the result. They had allocated responsibility for the accident in different proportions (Mason: 0:100; Beazley: 80:20 and Basten: 50:50).

• Where the opinions of the Court of Appeal are evenly divided, the opinion of the senior judge on the court prevails: Supreme Court Act 1970, sub section 45(2). Applied literally, this would give precedence to the opinion of Mason P, leading to the absurd result that the plaintiff would not succeed at all even though a majority of the judges of appeal had found that she had established liability.

• Mason P discussed seven methods of resolving this difficulty. He settled on a method that accepted the correctness of the majority finding that the defendant had been negligent, notwithstanding his own views on the issue. He then proceeded to assess contributory negligence on the assumption that the defendant had been negligent. He independently arrived at an assessment of 50% for contributory negligence.

• The Court of Appeal has reiterated that, even if an accident would not occur unless a plaintiff was not taking proper care for her own safety, this does not necessarily negative the existence of a duty of care. This is particularly so in circumstances where plaintiffs can be expected to have other calls on their attention.

• Particular care should be taken of hazards above eye level. Not only are they more difficult to see (and thus avoid), but they may strike the head, causing head injuries or hyperextension injuries of the neck.

• Mason P has provided a sensible and compelling approach to creating a majority decision where individual judges of the Court of Appeal differ from each other on a result. Although the need for such resolution of opinions is relatively rare, it potentially arises where contributory negligence is an issue. In such cases, a majority might find that the defendant was negligent but the plaintiff was contributorally negligent, but each judge may reach a different conclusion on the degree of contributory negligence.

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