Cruise Group Pty Ltd v Fullard

Court of Appeal (NSW)|2005-05-10|Before: Giles JA, Basten JA

CITATION: Cruise Group Pty Ltd v Fullard [2005] NSWCA 161

JUDGMENT OF: Giles JA at 1; Basten JA at 24; McClellan AJA at 57

DECISION: (1) Appeal allowed; (2) Set aside the verdict and judgment for the plaintiff, and in lieu thereof verdict and judgment for the defendant; (3) Plaintiff to pay the costs of the trial and the appeal, and to have a certificate under the Suitors Fund Act if otherwise qualified.

Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33; Gosford City Council v Needs [2003] NSWCA 144; Hoyts Pty Ltd v Burns [2003] 77 ALJR 1934; Hunt v Knight Frank (NSW) Pty Ltd [2005] NSWCA 139 Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431; CASES CITED: Southern Regional Health Board v Grimsey (1998) 8 Tas R 166; Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; University of Wollongong v Mitchell [2003] NSWCA 94. Van der Sluice v Display Craft Pty Ltd [2002] NSWCA 204; Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; Wyong Shire Council v Shirt (1980) 146 CLR 40.

Cruise Group Pty Ltd - Appellant PARTIES: Norma Faye Fullard - Respondent

B W Rayment QC & S Hill - Appellant COUNSEL: D R Toomey - Respondent

Maurice May, Wollongong - Appellant SOLICITORS: Russell McLelland Brown, Wollongong - Respondent

LOWER COURT FILE NUMBER(S): DC 28/02 (Wollongong)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40440/04 DC 28/02 (Wollongong)

GILES JA BASTEN JA McCLELLAN AJA

Thursday 2 June 2005 CRUISE GROUP PTY LTD v FULLARD Judgment 1 GILES JA: The plaintiff obtained judgment in an action claiming damages for negligence causing personal injury. She was awarded damages of nearly $300,000. The defendant appealed on liability and on elements of the damages. 2 In early 1999 the plaintiff and her husband, residents of New South Wales, were holidaying in Tasmania. On 3 February 1999 they bought tickets for a cruise on the Derwent River on the MV Commodore, a ferry-like vessel owned and operated by the defendant. They were accompanied by the brother of the plaintiff's husband and his wife. 3 The MV Commodore was constructed with coamings at the entrance doors from the decks to within the vessel. The safety and no doubt comfort purpose was to prevent water flowing from the decks into the vessel. It was not submitted that at the time coamings were obligatory by law in such a vessel, but design standards gazetted in 2000 required that commercial vessels generally have coamings and sills at entrances to watertight and weather tight openings "where there is a risk of downflooding when the closure is open"; many vessels must have like construction. 4 There were three entrance doors from the main deck into the main cabin, through one of which passengers boarded the vessel when taking the cruise. There were three entrance doors from the upper deck into the upper cabin, one being from the aft deck. The coaming at the lastmentioned entrance door was a raised portion about four inches in height and one and a half inches in depth across the bottom of the doorway. Across the top of the coaming was an unpainted stainless steel strip. At its foot at the junction with the aft deck was an unpainted aluminium strip on which the sliding door ran. The aft deck was painted a grey or blue-grey colour, and the riser of the coaming viewed from the deck was painted the same colour but broken by the aluminium strip. The grey or blue-grey vertical face of the riser was distinct from the vertical faces of the white sliding door to its right and the white bulkhead to its left. 5 The plaintiff and her companions boarded the vessel by a gangplank and the entrance door from the main deck into the main cabin. They went upstairs and out through the doorway onto the aft deck. The vessel got under way. An announcement was made that coffee was being served. The plaintiff and her sister-in-law went to go inside to have some coffee. 6 The plaintiff's sister-in-law went first, the plaintiff thought about a metre ahead of her although she was not sure. In going through the doorway the plaintiff tripped on the coaming and fell heavily on her left knee. The plaintiff did not see the coaming. She was pressed in cross-examination on whether she would have seen it if she had looked; the evidence included - "Q. So to summarise there was the aluminium strip on the bottom, there was the undercoat showing white on parts of the step, and there was the stainless steel 2 inch strip on top of it, all of which you should have been able to see, don't you agree with that? A. I didn't see it and that's the honest to God truth, that's all I can say about it. Q. Ma'am, I'm not suggesting that you did you see it and you're telling untruths, what I'm saying is if you had looked you would have seen it wouldn't you? A. I can't say, I don't know. Q. Do you know whether you did look or do you think you just followed your sister? A. I didn't, I think I just followed my sister-in-law. Q. Were you talking to her at that time? A. No the, the announcer was saying to look to your side and look to your side and look at the sights and that was it. Q. But you weren't looking to the side, were you? A. I can't remember. Q. So you don't know whether you looked at the step or not or whether you were looking somewhere else. A. Look I told you, I didn't see it and that's it, I don't know." 7 Mr Paul Saunders, the managing director of the respondent, gave evidence that in the operation of the MV Commodore since 1987 she had carried about 10,000 passengers annually and he was not aware of anyone falling over any of the coamings. He had travelled on about 80 per cent of the cruises. He accepted that he would probably learn of a fall only if it was reported to him, and that it was possible that there had been falls of which he was not aware. 8 The defendant conceded that it owed the plaintiff a duty of care, but denied that it had breached its duty. The plaintiff particularised negligence in failing to warn of the coaming by signage or otherwise, or to paint it so that it stood out and would be more easily seen. The judge found negligence in that there was a foreseeable risk of a passenger tripping on the coaming, and that it would have been a simple matter for the defendant to have painted it a different colour from the deck so that it stood out, to have included a "mind the step" warning when announcing coffee, or to have put a "mind the step" sign at the doorway. Her Honour did not consider the stainless steel capping sufficient to draw attention to the coaming, which she described as an unusual danger to passengers unfamiliar with the layout of boats. As to the evidence of Mr Saunders, she said that it was not determinative, and that she found "it would be extraordinary that 10,000 passengers board the vessel annually and not one has tripped on the coaming"; she described the evidence as "less reliable in that regard". 9 The judge did not expressly articulate what has become known as the Shirt calculus, from the judgment of Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-8, but there is no reason to doubt that she had it in mind. In deciding whether there has been breach of a duty of care, a foreseeable risk of injury must be found, and it is then necessary to determine what a reasonable man would do by way of response to that risk. There must be considered the magnitude of the risk and the degree of probability of its occurrence, and the expense, difficulty and inconvenience of taking alleviating action and any conflicting responsibilities of the defendant. 10 The thrust of the defendant's submissions was that the coaming and any risk of tripping which it posed was obvious, that the reasonable response to the risk did not require the warning by announcement, signage or painting thought necessary by the judge, and that the judge erred in effectively dismissing the evidence of Mr Saunders which strongly supported that these measures were not necessary. The plaintiff fell, the defendant said, not because the coaming was an unusual danger but because she was following her sister-in-law and not looking where she was going. 11 The thrust of the plaintiff's submissions was that the coaming was unexpected to persons not familiar with such things and constituted a "trap", that the fact that it was obvious when directly observed did not mean that the reasonable response of the defendant was not to make its presence better known, and that Mr Saunders' evidence was indeed not conclusive because there was a risk of injury and it was possible that there had been injuries of which he was not aware. The plaintiff submitted also that, although the plaintiff did not claim damages for breach of contract, she was a contractual passenger and that relationship brought a duty of care akin to an implied warranty that the defendant make the vessel as safe for the purpose contemplated by the contract as the exercise of reasonable care and skill could make it: she referred to Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33. 12 The case was not brought or fought in contract. That the plaintiff and her husband bought tickets for the cruise was part of their relationship with the defendant, but the defendant's obligation was to take reasonable care to avoid a foreseeable risk of injury: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488. Attention should not be confined to the coaming at the doorway from the aft deck of the MV Commodore. There were coamings at all entrance doors, and there will be coamings at entrance doors of many vessels similar to the MV Commodore. 13 It was accepted that there was a foreseeable risk of injury from tripping over the coaming, in the sense of a risk that was not far-fetched or fanciful. Would the reasonable man do more than the defendant did by way of announcement, signage or painting? 14 A reasonable man in the position of the defendant would be entitled to take account of what would have been known or apparent to passengers, and that they would generally exercise care for their own safety. In Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 at [123] Kirby J observed that where a risk is obvious to a person exercising reasonable care for his or her own safety, the notion that the occupier must warn the entrant about that risk is neither reasonable nor just. As the plaintiff pointed out, obviousness of risk is only one circumstance, and in Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 that observation was said to be not a proposition of law and and not of universal validity, see per Gleeson CJ at [45] and Kirby J at [127]-[128]. The Chief Justice said that "as a generalisation, what Kirby J said is, with respect, fair comment"; but Kirby J, who dissented in the result, said that sometimes warnings were necessary to alert the inattentive or distracted to an obvious risk. 15 Injury from tripping over the coaming was not likely to be serious, although there could be injury of some seriousness. But the probability of injury occurring was very small. Passengers on the vessel would be made aware of coamings from the moment of boarding, when they had to step over a coaming to enter the main cabin; and they would know of the coaming at the doorway to the aft deck through stepping over it to go out onto the deck. The passengers could be familiar with coamings from nautical experience, but if they were not they could be expected to be taking care in an environment in which they experienced a coaming upon boarding. The slight probability of injury was shown by the evidence of Mr Saunders (cf University of Wollongong v Mitchell [2003] NSWCA 94 at [34]). With respect to the judge, it was not correct to discount the evidence of Mr Saunders by stating her Honour's own expectation unsupported by evidence, and by ascribing to Mr Saunders' evidence the unclear status of "less reliable". Mr Saunders would surely have been made aware of any fall of significance. With 10,000 or so passengers annually over 12 years, that no falls had come to his knowledge was powerful reason to conclude that there was a minimal degree of probability that the foreseeable risk would eventuate. 16 The plaintiff submitted that marks on the vertical face of the riser of the coaming were scuff marks from the feet of passengers coming into contact with it, indicating tripping albeit without reported consequences. I do not think that can safely be inferred from the photographs. As the defendant submitted, the marks could have been caused by the sliding door or other activities. 17 While of course it is relevant, it would not be sufficient that it might have been a simple matter to make an announcement or place a sign or paint the coaming a different colour from the deck (the plaintiff suggested a fluorescent colour). As was pointed out in Van der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 at [83], that would be a fallacious approach to the Shirt calculus, because to say that suggested measures would have been a cheap and practical response to the foreseeable risk begs the question of whether it was necessary for the defendant to embark on that response. The response of the reasonable man includes doing nothing rather than adopt the simple and cheap measures. 18 I do not think that the reasonable response of the defendant would have been to include a warning with the coffee announcement. The coffee announcement was the occasion for the plaintiff to move through the doorway. Passengers were no doubt constantly moving through doorways, and it was not incumbent on the defendant to broadcast repeated "mind the step" announcements as passengers moved around the vessel. 19 The judge considered that the stainless steel strip and the aluminium strip did not sufficiently draw attention to the coaming. Her Honour's reasons did not recognise that the grey or blue-grey riser was distinct from the white at each side. From the photographs, the coaming was readily to be seen, and where the plaintiff was following her sister-in-law and could not say that she was looking the fact that she tripped is not an indication that it was insufficiently distinguished from the deck. 20 In my opinion, the slight risk did not require more by way of a reasonable response; it did not call for a proliferation of "mind the step" signs at each of the entrance doors, or a measure such as fluorescent painting of the coaming. The stainless steel strip, the aluminium strip and the contrast with the white door and bulkhead did distinguish the coaming from its surroundings, and it is necessary to repeat that passengers were made aware of coamings from the time they first boarded the vessel. 21 The plaintiff submitted that the coaming was not in direct sunlight when she fell, and that going into a darkened cabin made it harder to see. She said that passengers could well be distracted from taking care in going through the doorway by crowded conditions or announcement of sights, and pointed to a sign warning "mind your head" at a stairway from the upper cabin to the main cabin as an illustration of signage warning of an obvious risk. I do not think anything can be drawn from that different situation, and remain of the view that the measures taken by the defendant were sufficient as a reasonable response to what was a slight risk of injury. The defendant's obligation was that of a reasonable response, not of making the vessel safe against all possibilities, and as earlier noted included doing nothing. The risk was so slight, as shown by experience, that in my view the reasonable response did not call for signage or painting to highlight the existence of the coaming. 22 I am conscious that the judge made a finding of fact. It should not be disturbed without good reason. Her Honour misdirected herself, however, in discounting the evidence of Mr Saunders and in restricting herself to the appearance of the stainless steel strip and the aluminium strip, thereby distorting her assessment of a reasonable response to the risk of injury. In my opinion, the defendant did not breach its duty of care. 23 It is unnecessary to deal with other matters in the appeal. I propose the orders -

Set aside the verdict and judgment for the plaintiff, and in lieu thereof verdict and judgment for the defendant.

Plaintiff to pay the costs of the trial and the appeal, and to have a certificate under the Suitors Fund Act if otherwise qualified. 24 BASTEN JA: I am indebted to Giles JA for setting out the circumstances which give rise to this appeal. I regret that I do not share his Honour's conclusion in relation to liability. 25 A coaming between the open deck and the cabin area of a boat or ship is designed to prevent water flowing from the deck area to the internal parts of the vessel. Whilst common on vessels operating in open waters, the need to negotiate a coaming when passing through a doorway is likely to be an unusual experience for passengers not familiar with the structure. Indeed, even people who have experience with ferries and tourist craft operating on internal waters may never have needed to negotiate such an obstacle to free passage. 26 It was the Respondent's case before the trial judge that, for a person unaware that such obstacles exist on a vessel, hitting the coaming with one's foot or lower leg is readily foreseeable. Hitting such an obstacle in full stride may cause some people to trip: accordingly, it was said, tripping over a coaming is readily foreseeable. No doubt many people kick or trip on coamings without causing themselves any significant injury. Nevertheless, the submission proceeded, an accident where someone falls and receives cuts, bruises or other injuries on impact with the ground or solid objects is also foreseeable, even if such an occurrence may be a rare event. 27 It was not disputed that the Appellant, being the operator of the vessel in question, owed a duty of care to the passengers who paid money to come on its tours on the Derwent River. The first question in the appeal is whether the Appellant breached that duty by failing to give the Respondent warning in relation to the coaming over which she tripped and fell. 28 The trial judge was satisfied that the Appellant should have given a warning in one of three ways:

(a) painting the coaming in a vivid or distinctive manner;

(b) giving a verbal warning when announcing to persons on all parts of the craft that coffee was being served in a lounge, or

(c) placing a sign reading "mind your step" on the superstructure of the vessel, alongside the doorway. 29 The trial judge was satisfied that one of these courses should have been taken, each being cheap, simple to implement, and being likely to direct a passenger's attention to the coaming. In this Court, the Appellant argued that it was reasonable for it to take none of these steps. The coaming was, the Appellant argued, obvious to any passenger on the vessel, a fact which was supported by the photographs of the coaming in evidence before the trial judge and by the evidence of Mr Saunders, the managing director of the Appellant and operator of the vessel, who said that over some 12 years, approximately 10,000 people had travelled on the vessel and he had received no complaint of an accident such as that which the Respondent suffered. In addition, the Appellant argued that the existence of coamings and this particular coaming, was known to the Respondent because she had stepped over one when she had boarded the vessel and had also stepped over the one on which she later tripped, when she first went out on to the aft deck. 30 Giles JA is critical of the manner in which the trial judge dealt with the evidence of Mr Saunders, and also the manner in which her Honour dealt with the appearance of the stainless steel strip on the coaming. The central passage in her Honour's judgment, dealing with both matters, reads as follows: "The fact that there is no evidence of prior falls on the [coaming] is not in any way determinative. Indeed, I find it would be extraordinary that 10,000 passengers board the vessel annually and not one has tripped on the [coaming]. The very nature of the [coaming] is such that it constitutes an unusual danger to persons not familiar with boats. I find the evidence of Mr Saunders, the managing director of the defendant, to be less reliable in that regard. I find the coaming was painted in the same colour as the deck. I find it would have been a simple matter for the defendant to have painted it another colour to draw it to the attention of passengers. … I am not persuaded that the stainless steel capping was of such a nature as to draw attention to its presence and nor was the presence of the aluminium strip along which the door slid."

Absence of prior accident reports 31 The description of Mr Saunders' evidence as "less reliable in that regard" is obscure and perhaps elliptical. Nevertheless, I infer that her Honour may have been rejecting a submission that the evidence demonstrated that no-one had tripped over the coaming which, by its nature, she considered likely to give rise to such events. So understood, her Honour's approach would not demonstrate error. Given that the Respondent herself did not complain at the time, the trial judge was entitled to treat Mr Saunders' evidence as something less than conclusive of the extent of the risk involved. It was well within the range of reasonable inferences to find that tripping over the coaming was a real, and not a fanciful risk. 32 Absence of prior accident reports can come in many different forms and have different weight in particular circumstances. Thus, in Romeo v Conservation Commission (NT) (1998) 192 CLR 431 at [39] Toohey and Gummow JJ noted: "At the point where the appellant fell, the top of the cliff is unfenced. Indeed there was no evidence of fencing any where along the cliff face in the Reserve. There was no suggestion of anyone else having fallen over the edge of the cliff in the Reserve or of any complaint about the safety of the area prior to the accident."

At the end of that passage comes a footnote to the following effect: "Although the fact that an accident had not happened before cannot, of itself, be determinative of the claim: Fryer v Salford Corporation [1937] 1 All ER 617 at 620." 33 Fryer was a case involving a young girl, aged 11 years, who was injured when her apron caught fire from a gas cooker during a lesson in cookery. The plaintiff argued that guards should have been installed in front of the flames. The passage to which their Honours referred in Romeo is to be found in the judgment of Slessor LJ and reads as follows: "Mr Lynskey [senior counsel for the appellant corporation] has pointed out that the uncontradicted evidence in this case is, first, that no such guards have been placed upon gas cookers of this kind, used by children, by other education authorities, or by the Salford authority, and, secondly, that no previous case is known of a child being injured in this way, and he draws our attention to a large number of authorities, to the effect that no man may reasonably be called upon to guard against dangers which he ought not reasonably to anticipate. … In the present case, I do not think that it can be said that what here happened was that which no reasonable person could anticipate, merely because such an accident had not happened before, or because there was no reason to suppose that it would happen. In my view, the very nature of the case is such as to render reasonably apparent the possibility of danger emerging." 34 While there is no doubt that evidence demonstrating absence of prior complaint or accident over a significant period may in some circumstances be persuasive, I do not think her Honour erred in giving this evidence limited weight in this case. 35 The comment made by her Honour in the first paragraph set out above at [30] suggests that her judgment in this respect was based to a significant degree on her appreciation of the photographs of the coaming. For reasons noted below, this is not a finding with which, in the circumstances of the present case, I would interfere. Nevertheless, the evidence of lack of complaint was clearly relevant to the nature of the response required, if any, in drawing the risk to the attention of passengers. In such circumstances, it would not have been reasonable to expect the Appellant to take any particularly onerous course in relation to a warning.

An "obvious" risk? 36 Giles JA is also critical of the manner in which her Honour dealt with the visibility of the coaming. The photographs which were available to her Honour were not available to this Court at the hearing of the appeal. However, the Court was supplied after the hearing with colour copies on plain paper, described as "copies of photos in the form originally tendered" by the Appellant. In some, the coaming is almost obscured by the light or shadow effects, in others it is clearly apparent. A range of opinion is readily available as to the correct inference to be drawn. In these circumstances, I would not be prepared to depart from the finding made by the trial judge. 37 In relation to this aspect of liability Mr Rayment QC, who appeared with Mr S.M. Hill for the Appellant, sought to rely on the oft-repeated comment of Kirby J in Romeo v Conservation Commission (supra) at [123] to the following effect: "Where a risk is obvious to a person excising reasonable care for his or her own safety, the notion that the occupier must warn the entrant about that risk is neither reasonable nor just." 38 In Woods v Multi-sport Holdings Pty Ltd (2002) 208 CLR 460 at [45] Gleeson CJ had this to say of that comment: "It is right to describe that observation as a comment. It is not a proposition of law. What reasonableness requires by way of warning from an occupier to an entrant is a question of fact, not law, and depends on all the circumstances, of which the obviousness of a risk may be only one. And, as a proposition of fact, it is not of universal validity. Furthermore, the description of a risk as obvious may require closer analysis in a given case."

The force of that statement was acknowledged by Kirby J himself in Hoyts Pty Ltd v Burns [2003] 77 ALJR 1934 at [67], where his Honour said of his own remark in Romeo : "The dangers of taking this comment out of context and viewing it as a universal proposition of law were noticed in Woods . In every case, it is necessary to evaluate the suggested need for, and effectiveness of, a warning by reference to the proved circumstances."

The comment must also be read in the context of the extract from Thompson set out at [13] above. 39 The submission made by the Appellant in the present case did not suggest that the remarks of the Gleeson CJ were not relevant: however, it did contend that Kirby J's comment "had application", without explaining precisely how that application arose. The application of such a comment may be readily apparent in relation to a risk posed by a natural environment; its operation is not self-explanatory or simple in relation to a manufactured construction, such as a tourist vessel. And, as already noted, invocation of the descriptive label "obvious" may identify one factor, but distract attention from the critical question. 40 Importantly for present purposes, the Chief Justice in Woods, also noted that "the description of a risk as obvious may require closer analysis in a given case". Thus, in Hunt v Knight Frank (NSW) Pty Ltd [2005] NSWCA 139 at [51], McColl JA (Mason P and Giles JA agreeing) concluded that it was negligent to leave a milk crate in front of a lift in a building. Unless the lighting were inadequate, the milk crate would have been "obvious" to the plaintiff, had he been looking down. Similarly, in the present case, the coaming would have been obvious to the Respondent, had she been looking down. The real question is not answered by describing the coaming as "obvious", but by inquiring whether it was reasonably foreseeable that a passenger in the position of the Respondent would seek to pass through the doorway without looking down. 41 Undoubtedly the Respondent was required to take reasonable care for her own safety. Nevertheless, there are circumstances in which a degree of inadvertence or carelessness is part of that which may reasonably be foreseen and which must be taken into account in defining the extent of the duty of care in question. That consideration has particular relevance in the present case, for three reasons. First, a coaming is a feature which is peculiar to vessels and especially vessels designed for open seas. It is therefore an unusual feature in most people's experience, and not one for which an ordinary person would necessarily keep a watch. In most circumstances, doorways provide free and unimpeded passage from one area to another. A fixed barrier, some 10cm high, is not a feature generally encountered. An example is seen in Hunt (supra at [40]). Another illustration is the cross-bar of the bus shelter which was accepted by this Court in Gosford City Council v Needs [2003] NSWCA 144 as something which a reasonable pedestrian would not expect to find. (There are factors in Needs which distinguish it from the present, including evidence of a prior accident and a prior near accident: see Ipp JA at [13].) 42 Secondly, the craft was operated for tourist purposes and hence one might reasonably expect that passengers might not be familiar with the existence of coamings on some vessels. For such a person, the settled expectation of unimpeded passage through a doorway may not be removed by an initial encounter. Thus, the fact that the Respondent had stepped over a coaming to reach the aft deck was not a matter which should necessarily be expected to be in her mind when she returned through the doorway. The evidence did not allow any precise finding as to how long she had been on the aft deck before she returned through the doorway, but it could have been as long as one hour. 43 Thirdly, the operator of the vessel was carrying on a commentary over the loudspeaker during the cruise, drawing the attention of passengers to the sights on either side of the river. That factor may readily be seen as giving rise to, or enhancing, circumstances in which inadvertence in relation to otherwise visible barriers becomes readily foreseeable. 44 Thus, assuming that the Respondent was inadvertent and failed to take reasonable care for her own safety, there may yet be a duty of care owed by the operator of the vessel to guard against precisely such inadvertence or carelessness. That possibility falls squarely within the circumstances adverted to by the High Court in Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19 at [37]: "The factual judgment involved in a decision about what is reasonably to be expected of a person who owes a duty of care to another involves an interplay of considerations. The weight to be given to any one of them is likely to vary according to circumstances. If the obviousness of a risk, and the reasonableness of an expectation that other people will take care for their own safety, were conclusive against liability in every case, there would be little room for a doctrine of contributory negligence. On the other hand, if those considerations were irrelevant, community standards of reasonable behaviour would require radical alteration."

A reasonable response 45 If there were a foreseeable risk of injury due to inadvertence to the presence of the coaming, requiring a response from the Appellant, the next step is to consider the possible effectiveness of the potentially reasonable responses. Because I am not able to determine how distinctive the colouring of the coaming was, I would not be prepared to interfere with her Honour's conclusion that a more distinctive paint might have been expected to avert the accident in the present case. However, I think it more likely that a verbal warning or a sign would have been effective to prevent the accident. I see no reason to interfere with the implicit finding of the trial judge that a sign reading "Mind your step", or a verbal warning at the time of the announcement that coffee was being served, would have been likely to avert the accident. 46 The Appellant contended that, as operator of the vessel, it acted reasonably in taking none of these steps and that her Honour failed to accord proper weight to the evidence of absence of prior complaint. Such evidence can have significance in one of two ways. First, it can demonstrate that the operator of the vessel had no reason to believe that there was a foreseeable risk of injury by tripping over a coaming. The second element of relevance is that, although such an accident may have been foreseeable, its incidence was so low that the operator could reasonably ignore it. 47 In relation to the first element, for reasons expressed above, in my view the trial judge was entitled to hold that a risk of tripping was reasonably foreseeable and that, consequentially, and albeit in rare cases, the risk of injury to someone who did trip was also reasonably foreseeable. (There was no suggestion in this case that the injury incurred to the Respondent's knee would not have been a kind of injury which might be expected in the circumstances.) Accordingly, the trial judge was entitled to reject the inference which might be drawn from the statistics that such a risk was not foreseeable. 48 The second element, namely the absence of prior accident reports despite the carriage of thousands of passengers over 12 years, might well justify doing nothing if a response having any likelihood of averting the risk imposed a significant burden on the operator. Arguably the simplest, least expensive and most effective response, namely placing a simple sign in each doorway with a coaming, could well have been treated as an insignificant burden on the operator of the vessel. 49 A final matter for comment is the suggestion, put by the Appellant in reply, that a rejection of its argument in relation to liability may have the effect of imposing a significant burden on commercial boat operators around the country. However, the Court should not be diverted from reaching an appropriate conclusion in the present case by such speculative considerations. In that regard, a number of specific features of this case should be identified. First, the possibility of distinctive painting is, for the reasons noted above, not a matter about which this Court is in a position to draw inferences. Secondly, the particular circumstances of this case included the provision of a commentary drawing the attention of passengers to sites on either side of the river and, in the same breath, so to speak, inviting passengers on the outer decks to re-enter the cabin area for coffee. Thirdly, as the evidence demonstrated, there was a sign saying "Mind your head" on steps which appear to lead to a lower deck. Signs may be found alongside doorways with a coaming reading "Mind your step" on other boats: there is no evidence one way or the other before this Court. In short, there are particular circumstances in this case which may not be of general relevance and there may be warnings given in other situations about which the Court has no knowledge.

Contributory negligence 50 If the finding with respect to liability is not set aside, it is necessary to address the alternative argument of the Appellant, namely that there should be a significant reduction in damages on account of the contributory negligence of the Respondent. With respect to this issue, the trial judge found: "Passengers are, of course, expected to take reasonable care for their own safety. However, the evidence of the plaintiff was that she simply did not see the [coaming]. I find that to be so, because it was [not] obvious and there was no warning sign to draw her attention to its existence. In those circumstances I am not persuaded that her failure to see the [coaming] amounts to a want of care on her part amounting to contributory negligence." 51 There are a number of factors which suggest that the Respondent did fail to exercise reasonable care for her own safety. They include the fact that she had encountered coamings at least twice during the course of the previous hour, namely when she boarded the vessel and when she moved to the outer area of the aft deck. Further, whether or not people do trip on coamings, the evidence of lack of complaint strongly indicates that tripping (without injury) is likely to be a rare event. The reasons of the trial judge do not indicate that she gave attention to such evidence in reaching the conclusion that there was no contributory negligence. However, because this is a minority judgment, there is no need to pursue this issue further.

Award of damages 52 A number of issues were raised by the Appellant in relation to the calculation of damages. Several of these complaints have merit. 53 The total damages awarded were a fraction under $300,000. Of that, an amount of $183,224 was attributable to "future paid care". The calculation of that figure was based on a life expectancy for the Respondent of a fraction over 24 years. The calculation was based on future paid care for the whole of that period. No account was taken of the fact that her husband, who had presently given up employment to look after her, would, even if he returned to employment reasonably promptly, be likely to retire at the age of 65 years, in approximately five years time. That was a matter of some significance, because it was common ground between the parties, that the Common Law (Miscellaneous Actions) Act 1986 (Tas) applied to the present assessment. Section 5 of that Act reads as follows: "5. Abolition of awards for gratuitous services An award of damages that relates to personal injury of a person shall not include compensation for the value of services of a domestic nature or services relating to nursing and attendance - (a) which have been or are to be provided by another person to the person in whose favour the award is made; and (b) for which the person in whose favour the award is made has not paid or is not liable to pay." 54 The application of this provision is not without its difficulties and counsel have (after the hearing of the appeal) drawn attention to case-law from Tasmania (and other jurisdictions) in relation to its construction. Its effect would appear to be that, to the extent that her husband was able and likely to provide such services in the future, no allowance should be made in the award of damages. However, the availability of her husband to provide such services may not be sufficient: if the trial judge were satisfied that professional assistance would nevertheless be obtained, an award might follow: see, eg, Southern Regional Health Board v Grimsey (1998) 8 Tas R 166 at 189-192 (Full Court). Thus, it may have been necessary to consider what level of services the husband would in fact have provided and over what period. None of these factors were considered in the present case, but they may have required a reduction in the amount awarded for "future paid care". 55 There was also a dispute between the parties at trial as to whether and to what extent the Respondent's present condition is, or would likely to have been, due to a pre-existing weakness in her knees caused by incipient osteoarthritis. That such a condition did exist was reasonably clear from the medical reports. The trial judge held: "It may well be that this plaintiff had pre-existing degenerative changes in her knees prior to her fall."

Her Honour also found that "the fall accelerated those changes". In those circumstances, it is difficult to support the conclusion that her future disability must be attributed to the accident for the rest of her life. A reduction of her damages was required to take account of the possibility that she would have suffered significant loss of her active abilities at some future time, due to the underlying condition. The exact extent of the reduction would no doubt have been difficult to assess, because the conflicting assessments of the doctors were left before her Honour without any of the doctors being called or cross-examined. For the same reason, some reduction would also have been required in relation to the general damages, which were assessed at $80,000. 56 Because my view in relation to liability is a minority view, it is not necessary to explore these aspects of the matter further. 57 McCLELLAN AJA: I have read the judgment of Giles JA in draft. I agree with the orders which his Honour proposes and, with the following additional observations, agree with his Honour's reasons. 58 To my mind, the presence of a coaming on a public ferry or cruise boat could in appropriate circumstances, provide a danger against which the owner might reasonably be obliged to warn passengers. Because it will intrude above the floor in a location where a passenger is unlikely to expect an obstacle, particularly when passengers are diverted by items of interest external to the vessel, it may be necessary to draw attention to the coaming by painting it a distinctive colour or erecting a sign. 59 In the present case, the coaming was a potential danger to an inattentive passenger. However, whether, because the colour of the coaming contrasted with its surrounds, or, because of the presence of the aluminium strip, or, because of the number of coamings on the vessel over which a passenger must pass, the evidence of Mr Saunders is that there was no previous report of a fall. This is the position notwithstanding that the ferry has been in operation since 1987 carrying up to 10,000 passengers annually. 60 The photographs disclose a wearing of the coaming in a position which is consistent with contact being made from time to time by passengers shoes. Although the wear could be explained by contact with the sliding door, ordinary experience would suggest that some of the many thousands of passengers would have kicked the coaming over the years and some may have tripped. However, the fact that a danger exists to persons taking reasonable care for their own safety is not determinative of the question of breach of duty. Kirby J said in Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 at [128]: "Insufficient attention has been paid in some of the cases, and by some of the critics, to the practical considerations which must be 'balanced out' before a breach of the duty of care may be found. It is here, in my view, that courts have both the authority and responsibility to introduce practical and sensible notions of reasonableness that will put a brake on the more extreme and unrealistic claims sometimes referred to by judicial and academic critics of this area of the law. Thus, under the consideration of the magnitude of the risk, an occupier would be entitled, in a proper case, to accept that the risk of a mishap such as occurred was so remote that 'a reasonable man, careful of the safety of his neighbour, would think it right to neglect it' Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd [1967] 1 AC 617 at 642-643; cf Inverell Municipal Council v Pennington (1993) 82 LGERA 268 at 276. It is quite wrong to read past authority as requiring that any reasonably foreseeable risk, however remote, must in every case be guarded against. Such an approach may result from the erroneous conflation of the three separate inquiries: duty, scope of duty and breach of duty. Although a reasonably foreseeable risk may indeed give rise to a duty, it is the inquiry as to the scope of that duty in the circumstances and the response to the relevant risk by a reasonable person which dictates whether the risk must be guarded against to conform to legal obligations. Precautions need only be taken when that course is required by the standard of reasonableness Phillis v Daly (1988) 15 NSWLR 65 at 73. Although it is true, as the appellant argued, that an occupier is not entitled to ignore safeguards against dangers because of the absence of past mishaps, it is equally true that years of experience without accidents may tend to confirm an occupier's assessment that the risk of harm were negligible" (see also University of Wollongong v Mitchell [2003] NSWCA 94, (2003) Aust Tort Reports 81-708. 61 The response which the law requires from the appellant in the present circumstances must be informed, inter alia, by the experience of any previous problems, including any history of injury occasioned to persons who may have tripped on the coaming. 62 To my mind, the fact that so many passengers have been carried on the vessel since 1987 without a fall being reported to Mr Saunders leads inevitably to the conclusion that no more was required to be done by the appellant to discharge its duty of care to passengers. **********

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Common Law (Miscellaneous Actions) Act 1986(Tas)

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