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[2010] WASCA 25
Court of Appeal (WA)
2010-02-19
Pullin JA
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : DEPARTMENT OF HOUSING AND WORKS -v- SMITH [No 2] [2010] WASCA 25
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Citation : SMITH -v- THE HOUSING AUTHORITY [2008] WADC 171
Tort - Occupiers' liability - Landlord and tenant - The interaction of common law principles, the Occupiers' Liability Act 1985 (WA) and the Civil Liability Act 2002 (WA) - Negligence - Respondent/lessee injured after falling on lawn in a block of residential units - Duty of care - Whether the appellant/lessor was negligent in failing to fill in a small depression in the lawn - Causation
Interpretation Act 1984 (WA), s 19
Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 260 ALR 628
Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479
Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301
Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council [2001] HCA 29; (2001) 206 CLR 512
CG Maloney Pty Ltd v Hutton-Pots [2006] NSWCA 136
Homestyle Pty Ltd v Perrozzi [2007] WASCA 16; (2007) 33 WAR 209
Illawarra Area Health Service v Dell [2005] NSWCA 381
Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166
Littler v Liverpool Corporation [1968] 2 All ER 343
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254
Mulligan v Coffs Harbour City Council [2005] HCA 63; (2005) 223 CLR 486
Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341
New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486
Phillis v Daly (1988) 15 NSWLR 65
Roads and Traffic Authority (NSW) v Refrigerated Roadways Pty Ltd [2009] NSWCA 263; (2009) 168 LGERA 357
Sheehan v State Rail Authority [2009] NSWCA 261
Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364
Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234
Tonich v Macaw Nominees Pty Ltd (Unreported, WASCA, Library No 940119, 11 March 1994)
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422
Watch Tower Bible Society and Tract Society of Australia v Sahas [2008] WASCA 51; (2008) 36 WAR 234
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40
1 PULLIN JA: The appellant appeals against the judgment of Keen DCJ ordering that the appellant pay the respondent damages of $38,000 for personal injuries.
2 The respondent's statement of claim pleaded a claim of common law negligence claim and also pleaded reliance on the Occupiers Liability Act 1985 (WA) (OLA). The trial judge said that the respondent also relied on the Civil Liability Act 2002 (WA) (CLA), in particular s 5B.
The Civil Liability Act 2002 (WA) and the Occupiers Liability Act 1985 (WA)
3 The 'harm' in this case, namely personal injury, was suffered by the respondent after 1 January 2003. As a result the CLA applied. The trial judge referred to the OLA and the CLA and said at [112]:
The Acts, to a very large extent, mirror the position at common law as to the existence and scope of a duty of care. Section 5B of the CLA is exclusionary in its terms in as much as in s 5B(1) it is expressed that 'a person is not liable for harm ...'. In those circumstances it is necessary to look at the common law position and then see whether or not the provisions of s 5B apply to exclude a duty of care or breach in the relevant case.
4 In Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 260 ALR 628, two men were shot in a restaurant. They brought an action against the owner of the restaurant business claiming damages for personal injury. The Civil Liability Act 2002 (NSW) applied. The question was whether the owner owed the two men a duty of care to prevent harm of the kind suffered, whether the duty had been breached, and whether the breach was a cause of the damage suffered.
In considering each of the issues of duty, breach and causation, it is of the first importance to identify the proper starting point for the relevant inquiry. In this case there are two statutes which require particular consideration: the Civil Liability Act 2002 (NSW) ... and the Liquor Act. If attention is not directed first to the Civil Liability Act, and then to the Liquor Act, there is serious risk that the inquiries about duty, breach and causation will miscarry [11].
6 The Civil Liability Act 2002 (NSW) is similar to the CLA, but there are different provisions and where provisions are similar there are some differences of wording which may be significant. An example of different wording in similar provisions is found in s 5B. Section 5B(1) of the New South Wales Act begins with the words '[a] person is not negligent in failing to take precautions against the risk of harm unless', whereas s 5B(1) of the CLA begins with the words '[a] person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless'. The subparagraphs of s 5B(1) which follow are substantially the same. The CLA provision reads:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known);
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
7 Subsection (2) of s 5B is almost identical in both Acts. The CLA reads:
In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) -
(a) the probability that the harm would occur if care were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the social utility of that activity that creates the risk of harm.
(1) A determination that the fault of a person (the 'tortfeasor') caused particular harm comprises the following elements -
(a) that the fault was a necessary condition of the occurrence of the harm (factual causation); and
(b) that it is appropriate for the scope of the tortfeasor's liability to extend to the harm so caused (scope of liability).
(2) In determining in an appropriate case, in accordance with established principles, whether a fault that cannot be established as a necessary condition of the occurrence of harm should be taken to establish factual causation, the court is to consider (amongst other relevant things) -
(a) whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor; and
(b) whether and why the harm should be left to lie where it fell.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm (the injured person) would have done if the tortfeasor had not been at fault -
(a) subject to paragraph (b), the matter is to be determined by considering what the injured person would have done if the tortfeasor had not been at fault; and
(b) evidence of the injured person as to what he or she would have done if the tortfeasor had not been at fault is inadmissible.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor.
In determining liability for damages for harm caused by the fault of a person, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.
10 In submissions to the trial judge, the appellant referred to s 5N and s 5O of the CLA which read:
5N. Injured person presumed to be aware of obvious risk
(1) In determining liability for damages for harm caused by the fault of a person, the person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk.
(2) For the purpose of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk.
(1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff.
(2) This section does not apply if -
(a) the plaintiff has requested advice or information about the risk from the defendant;
(b) the defendant is required by a written law to warn the plaintiff of the risk; or
(c) the defendant is a professional and the risk is a risk of harm to the plaintiff from the provision of a professional service by the defendant.
(3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection.
11 The High Court in Adeels did not expressly consider the question whether in New South Wales the common law relating to duty of care, standard of care or causation continued to apply or whether the relevant Civil Liability Act provisions modified the common law or entirely supplanted the common law. However, the impression I gain from the reasons is that the High Court regarded the relevant provisions of the New South Wales Act as supplanting the common law.
12 The trial judge's view that s 5B in the CLA is 'exclusionary' might be understood to mean that the common law continues to operate in Western Australia in relation to duty of care and standard of care (and causation), and that once common law principles determine liability then s 5B of the CLA is applied and if the factors referred to in s 5B(1) and (2) are met the person will then be 'not liable'. If, on the other hand, s 5B supplants the common law, then it will mean that the courts cannot make incremental changes to the law to meet new circumstances. Instead, only Parliament will be able to make changes.
13 No submissions were made by the parties about the trial judge's opinion and for the reason given below I will not express any concluded views about the subject. However, I do wish to observe that in the Minister's speech moving the second reading of the Civil Liability Bill 2002 the Minister said that it formed:
[P]art of the national response to public liability insurance matters. Tort law reform that creates a fairer and more predictable legislative environment, alongside the adoption of better risk management practices, should improve the cost and availability of insurance'.
14 The Minister's view about more predictability is not a view held by all. In the article 'The Impact of the Civil Liability Legislation on Fundamental Policies and Principles of the Common Law of Negligence', McDonald B, (2006) 14 Torts Law Journal, 268, the author said that:
[I]t is clear that the law of negligence has, at least temporarily, been made not simpler but even more complex by the overlay of varied and wordy provisions in these 'tort reform' statutes (268).
15 In CG Maloney Pty Ltd v Hutton-Pots [2006] NSWCA 136, [177], Bryson JA made the following observations about the New South Wales Civil Liability Act 2002 which can be applied to the CLA. His Honour said that there was no general statement of purposes or of objectives in the Act; that some of the provisions may have been intended to restate or declare parts of the law of negligence while others changed parts of that law; that he had not observed any overall purpose or scheme of the amendments which could be brought to bear on the construction of any particular provision; and that the application of each particular provision should be considered in its statutory context and in relation to the facts of each particular case in which a litigant claims to rely on it.
16 The passing of legislation with different provisions and different wording in similar provisions in jurisdictions around Australia has the potential to have an undesirable effect on what was a unified law of tort in Australia. Rather than creating fairness and predictability, the existence of different legislation around Australia might create a lack of predictability and increase the cost and availability of insurance.
17 As mentioned, the OLA was relied upon in the statement of claim but there was no discussion in the trial judge's reasons about the interrelationship between the OLA, the CLA and the common law and no submissions were made about this by the parties on appeal.
(1) Subject to subsections (2) and (3) the care which an occupier of premises is required by reason of the occupation or control of the premises to show towards a person entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible shall, except in so far as he is entitled to and does extend, restrict, modify or exclude by agreement or otherwise, his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger.
...
(4) Without restricting the generality of subsection (1), in determining whether an occupier of premises has discharged his duty of care, consideration shall be given to -
(a) the gravity and likelihood of the probable injury;
(b) the circumstances of the entry onto the premises;
(c) the nature of the premises;
(d) the knowledge which the occupier of premises has or ought to have of the likelihood of persons or property being on the premises;
(e) the age of the person entering the premises;
(f) the ability of the person entering the premises to appreciate the danger; and
(g) the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.
19 In Homestyle Pty Ltd v Perrozzi [2007] WASCA 16; (2007) 33 WAR 209 and Watch Tower Bible Society and Tract Society of Australia v Sahas [2008] WASCA 51; (2008) 36 WAR 234, members of this court have observed that there are two lines of authority concerning the effect of the OLA. One line suggests that the common law continues to determine whether an occupier owes a duty of care to an entrant and also governs causation, with the Act prescribing the standard of care required to discharge any duty of care imposed by the common law. The other line is that the Act covers the field and that there is no longer any common law duty of care owed by an occupant to an entrant.
20 The reason why it is unnecessary for me to decide in this case whether the provisions of the OLA or the CLA reflect, supplant or modify the common law is because both parties were in agreement that there would be no different result whether the common law or the CLA (or the OLA) was applied, neither party made any submissions at all about the interaction and relationship between the CLA and the OLA or about whether the common law continues to apply and because I agree that there would be no different result.
21 On 26 September 2006 the appellant, known as Homeswest, was the owner of property situated at 7 Heyshott Road, Balga. There were 16 senior's accommodation units on the property and the respondent occupied Unit No 1. At the time of the trial, she had lived in this unit for 13 years.
22 On part of the property near the respondent's unit were some washing lines and near this was a small area of lawn. The respondent used to walk around the lawn on a pathway to get to a washing line about three times a week. Another tenant placed a bird bath on the lawn and put plants around it. When this tenant moved out, the bird bath and plants were taken away. The respondent knew that the bird bath had been placed on the lawn and knew it had been taken away. Where the base of the bird bath had been, there remained a depression in the lawn which the trial judge found was about 1 inch deep in the centre and tapering off to level ground at the edges. The evidence of a neighbour Christine Horton was that part of the depression in the lawn was 'about the size of a cup and saucer' and about 24 cm across. Other evidence was that it was a circle of about 'two foot across'. The trial judge made no finding as to the actual diameter, but it is sufficient to know that the circle was one inch deep and between 24 cm to 2 feet in diameter. The respondent was generally familiar with the area, but neither counsel asked her whether she had seen or knew of the existence of the depression.
23 Ms Horton moved into Unit 3 in June 2006 and was a nearby neighbour of the respondent. As soon as Ms Horton moved in she noticed the depression in the lawn because she walked over the lawn to the washing lines. The depression contained sand and lawn.
24 On the day of the accident, the respondent gave evidence that she was about to go to a club when her son telephoned and asked her to go and see another resident at the units to advise the resident that he could not come to the premises that day to do certain work for her. The respondent went and told the resident and when returning she crossed the lawn where the bird bath had been. The trial judge found that she was hurrying. Her evidence was that she was 'practically running'. She said 'I crossed over the line [of the path] and next minute I knew, my hand on my left side went down, and I landed onto the ground'. After her fall the respondent said she had to bring her foot out of the 'hole'. The respondent was injured and she sued the appellant.
25 A lawn mowing contractor employed by Homeswest was called to give evidence for the respondent. He said he used to mow or whipper snip the lawn. His contract obliged him to notify the appellant of any 'problem' requiring work or attention outside the terms of his contract. He described the lawn as having brown patches and weeds. He was not asked by either counsel whether he saw the depression in the lawn.
26 The respondent's statement of claim alleged that the accident was caused by the failure of the appellant and its servants or agents to take care as follows:
(a) Failing to take any or any adequate precautions for the safety of the respondent while she was at the premises;
(b) Failing to warn the [respondent] of the presence of the depression in the ground;
(c) Failing to ensure the depression was filled in so that it did not constitute a danger to persons walking on the grassed area;
(d) Allowing or permitting grass to grow in the depression and thereby conceal the presence of the depression such that it became and/or remained a danger and a trap to the [respondent]; and
(e) Exposing the [respondent] to a risk of damage or injury of which it knew or ought to have known.
27 The appellant pleaded that the accident was caused or contributed to by the plaintiff's own negligence in failing to keep a proper lookout, failing to take any or any adequate care for her own safety when walking across the grassed area, and failing to observe and take steps to avoid known hazards which she knew or should have known existed.
28 The trial judge in his reasons referred to Mason J's reasons in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, 47 - 48, held that the risk of injury was not 'far-fetched or fanciful' and 'not insignificant' and concluded that the appellant owed a duty of care to the respondent. His Honour then considered the standard of care and what a reasonable person in the appellant's position would have done in response to the risk. His Honour considered the factors referred to in the Wyong case, namely the magnitude of the risk and the degree of probability of its occurrence; took into account the class of person subjected to the risk; concluded that the depression was not a 'trap'; said he had regard to the factors in s 5(4) of the OLA and s 5B of the CLA; and said:
The depression had according to the evidence of Ms [Horton] been there for some time. That being the case what is the response of a reasonable person in the defendant's position to that risk? I have already dealt with the considerations of magnitude of the risk and the degree of probability of its occurrence. As I have said, it is not insignificant. Accordingly, the reasonable response would be to take some action to alleviate the risk of an elderly person stepping into the depression and falling in some way or other.
The plaintiff argued that it would have been a simple process to have removed the risk by filling the depression with sand. There was no real argument to the contrary. I did not hear evidence as to what the cost would have been but it seems to me that the reasonable cost would not have been significant [145] - [146].
29 His Honour concluded that the depression was 'something that the plaintiff might well have not noted in the context of the area as a whole. It is the sort of thing that would be easily overlooked by momentary inadvertence'. His Honour said that he was conscious that Ms Horton said she observed the hole in the lawn and would take steps to avoid it. His Honour said:
However, the orientation shows that when she comes out of her back door to get to the washing line she would walk straight across the grass. This was not the plaintiff's position. Her evidence was that she would come out of her back door and use the path to get to her washing line [147].
His Honour found that as a result the respondent was not guilty of contributory negligence.
30 The first ground of appeal alleges that the trial judge erred in concluding:
(a) that the depression in the lawn created a foreseeable risk of injury which was not an insignificant risk;
(c) that a reasonable person in the appellant's position would have taken the precaution of filling it with sand.
31 The second ground alleges error on the part of the trial judge when he found implicitly that he respondent's fall was caused by the depression in the lawn when there was no evidence from which that inference could be drawn.
32 Thirdly, the appellant contends that the trial judge erred in finding that the respondent was not contributorily negligent.
33 I will assume that a duty of care was owed by the appellant and concentrate on the third aspect of the first ground which concerns the standard of care or the scope of the duty.
34 The standard of care determines what it is that the person under the duty must do to discharge a duty of care. At common law the question to be asked is what, if anything, a reasonable person in that person's position would have done by way of response to the foreseeable risk of that injury. If s 5B(1)(c) of the CLA operates at this stage of the inquiry the same question arises, that is, whether 'in the circumstances a reasonable person in [the appellant's] position' would have taken the precautions which the respondent alleged should have been taken. It is necessary to look forward to identify what a reasonable person would have done, not backward to identify what would have avoided the particular injury or damage. See New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486 [57]. Reasonableness may require no response to a foreseeable risk. See Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234 [36]. This is a case where the relevant facts have been fully found and where this court is in as good a position as the trial judge to decide the point at issue.
35 In my opinion, a reasonable person in the position of the appellant would have done nothing by way of remedial work to deal with the risk of injury which might be caused by the slight depression in the lawn, the existence of which was obvious to a person choosing to look where they were going when they were crossing the lawn (as evidenced by Ms Horton's evidence). There was no evidence to show that there was any significant risk of injury for a person exercising sufficient care for their own safety by looking where they were going and perceiving and avoiding obvious hazards. In Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council [2001] HCA 29; (2001) 206 CLR 512, the court was dealing with two cases, one of which involved a plaintiff by the name of Ghantous who had been injured after falling when walking along a concrete path. Erosion had resulted in subsidence of the earth in some places so that the verge was about 50 mm below the concrete. The pedestrian had stepped aside to allow others to pass and she had placed her foot so it was partly on the concrete and partly on the lower verge and thus she was caused to fall. However, as Gleeson CJ said [6]:
The fact that there was unevenness of the kind which could result in a person stumbling or falling would not suffice. Not all footpaths are perfectly level. Many footpaths are unpaved. People are regularly required to walk on uneven surfaces on both public and private land.
Gleeson J at [7] referred to the observations of Cumming-Bruce J in Littler v Liverpool Corporation [1968] 2 All ER 343, 345 who said:
Uneven surfaces and differences in level between flagstones of about an inch may cause a pedestrian temporarily off balance to trip and stumble, but such characteristics have to be accepted. A highway is not to be criticised by the standards of a bowling green.
As Callinan J points out in his reasons in Ghantous, persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, tree roots or holes.
There was no concealment of the difference in height. It was plain to be seen. The world is not a level playing field. It is not unreasonable to expect that people will see in broad daylight what lies ahead of them in the ordinary course as they walk along. No special vigilance is required for this.
Whereas Mrs Ghantous alleged that the area beside the footpath was rendered 'hazardous' by a combination of erosion and increased foot traffic, something more than the fact that she fell would be necessary to covert the powers which the respondent Council enjoyed into a duty to safeguard a pedestrian such as Mrs Ghantous, rendering the Council liable to her because she momentarily took a false step. That 'something' might be evidence of poor original design, a history of previous accidents or complaints or deterioration that was judged manifestly dangerous. None of these elements was established in Mrs Ghantous's case. Nor did the primary judge's remark that '[i]t is regrettable that the Council's program of maintenance did not operate to keep the footpath in less hazardous condition' represent a finding of negligence by the Council. It was no more than comment that, in retrospect and with the wisdom of hindsight, it was a pity that the subsidence next to the path had not been noticed and cured before Mrs Ghantous took the step that led to her fall.
39 Hayne J [339] agreed with Callinan J that there was no arguable want of care by the respondent.
40 Apart from the fact that this was a lawn rather than a footpath, the observations made by all of the judges in Ghantous can be applied with equal force in this case. The trial judge in this case acknowledged, as the evidence revealed, that the lawn was not of 'bowling green condition'. That being so, and his Honour having found at [144] that the depression was not disguised and was not a 'trap', it is my opinion that the only conclusion open was that because the respondent was hurrying, or in her words 'almost running', she did not take sufficient care to observe where she was going and did not proceed with appropriate care for her own safety. There was no poor original design in the lawn, there was no history of previous accidents and the depression was not manifestly dangerous. In my opinion, the trial judge erred in concluding that the appellant was under a duty to fill the depression with sand 'to alleviate the risk of an elderly person stepping into the depression and falling in some way or other'. The minor irregularity in the surface of the lawn was not something that a reasonable person in the position of the appellant would have thought required any attention. If s 5N and s 5O(1) of the CLA apply at this stage of the inquiry, then they would produce the same result. There was no finding that a warning was necessary.
41 Finally, I note that although the OLA was referred to, his Honour made no finding that the depression constituted a danger within the meaning of s 5(1) of the OLA.
42 The third aspect of ground 1 should therefore be upheld.
43 The appellant points to the fact that the respondent gave no express evidence that when she fell she did so because she stepped into the depression. Nevertheless, when she was found after her fall, she was 'right on the hole'. The appellant submits that if she had fallen because stepped into the hole, then she should have been found 'away from it' rather than located on the depression.
44 Although his Honour does not expressly say so, the whole tenor of his Honour's reasons is that the cause of the fall was the depression in the lawn. The respondent's evidence was that she had to 'bring her foot out of [the] hole'. See [15] of the reasons.
45 No error is revealed in this respect. Ground 2 should be dismissed.
46 It is not necessary to deal with ground 3. It is not possible to provisionally make any assessment because the assessment requires a conclusion that there has been negligence on the part of the appellant and the conclusion in this appeal is that there was no negligence.
47 The appeal should be allowed, the judgment in favour of the respondent set aside and in lieu there should be judgment dismissing the claim.
48 BUSS JA: At all material times, the respondent has resided at Unit 1, 7 Heyshott Road, Balga. The respondent's unit is one of a block of 16 residential units, all of which are owned by the appellant. At all material times, the respondent has leased Unit 1 from the appellant.
49 On 26 September 2006, the respondent, who was then aged 72 years, fell on an area of lawn in the garden at the rear of the block of units, and sustained an injury.
50 The respondent, as plaintiff, commenced proceedings in the District Court against the appellant, as defendant. She alleged that her injury was caused by the appellant's breach of a duty of care owed to her. The action was tried before Keen DCJ. His Honour found that the appellant was liable to the respondent, and awarded her damages in the sum of $38,000.
51 The appellant has appealed to this court against the finding of liability. The quantum of damages awarded is not challenged.
52 I agree with Pullin JA (with whom Newnes JA proposes to concur) that the appeal should be allowed, the judgment entered in the primary proceedings be set aside and the respondent's action be dismissed, but I propose to state my own reasons for these conclusions.
53 The submissions made to this court on the interaction of the common law principles, the Occupiers' Liability Act 1985 (WA) (the OLA) and the Civil Liability Act 2002 (WA) (the CLA) were deficient. Counsel for each of the parties said that it was unnecessary to determine the correct interaction between the common law, the OLA and the CLA because the outcome of the appeal would not be affected by whatever principles or combination of principles were applicable.
54 I do not accept that the appeal should be decided on this unsatisfactory basis. Applicable statutory provisions cannot be
disregarded. The court must identify the proper legal framework and determine the appeal according to it.
55 At common law (that is, apart from contract and statute) an occupier owes a duty of care to any person whose presence on the premises, either individually or as a member of a class, is reasonably foreseeable in respect of risks of physical injury arising out of the condition of the premises. See Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479, 488 (Mason, Wilson, Deane & Dawson JJ); Phillis v Daly (1988) 15 NSWLR 65, 76 (McHugh JA); Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254 [17] (Gleeson CJ), [102] (Hayne J).
56 Also, at common law a lessor of residential premises owes a duty of care to his or her lessee to take reasonable care to avoid foreseeable risks of harm to the lessee having regard to all the circumstances of the case. See Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 [84] (Gaudron J), [100] (McHugh J).
57 It is well-settled, therefore, that a lessor of residential premises (whether in his or her capacity as lessor or as occupier) owes a common law duty of care to his or her lessee.
An Act prescribing the standard of care owed by occupiers and landlords of premises to persons and property on the premises.
59 Section 4 of the OLA provides, relevantly, that s 5, s 6 and s 7 are to have effect, in place of the rules of the common law, for the purpose of determining the care which an occupier of premises is required, by reason of the occupation or control of the premises, to show towards a person entering on the premises in respect of, relevantly, dangers to that person which are due to the state of the premises or to anything done or omitted to be done to the premises and for which the occupier of premises is by law responsible.
(1) ... the care which an occupier of premises is required by reason of the occupation or control of the premises to show towards a person entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible shall, except in so far as he is entitled to and does extend, restrict, modify or exclude by agreement or otherwise, his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger.
(2) ...
(3) ...
(4) Without restricting the generality of subsection (1), in determining whether an occupier of premises has discharged his duty of care, consideration shall be given to -
(a) the gravity and likelihood of the probable injury;
(b) the circumstances of the entry onto the premises;
(c) the nature of the premises;
(d) the knowledge which the occupier of premises has or ought to have of the likelihood of persons or property being on the premises;
(e) the age of the person entering the premises;
(f) the ability of the person entering the premises to appreciate the danger; and
(g) the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.
Sections 6 and 7 are not relevant, for present purposes.
61 By s 9(1) of the OLA, where premises are occupied or used by virtue of a tenancy under which the landlord is responsible for the maintenance or repair of the premises, 'it shall be the duty of the landlord to show towards any persons who may from time to time be on the premises the same care in respect of dangers arising from any failure on his part in carrying out his responsibilities of maintenance and repair of the premises as is required under this Act to be shown by an occupier of premises towards persons entering on those premises'. Section 9(3) provides that nothing in s 9 shall relieve a landlord of any duty which he or she is under apart from that section.
62 As I pointed out in Homestyle Pty Ltd v Perrozzi [2007] WASCA 16; (2007) 33 WAR 209 [20] (Martin CJ & Roberts-Smith JA agreeing), the relationship between the OLA and the common law of negligence, in particular the juridical basis of an occupier's duty of care, was considered on numerous occasions by the Full Court of the Supreme Court of Western Australia. Different opinions were expressed. In some cases it was held that the OLA prescribes the standard of care required to discharge any duty of care imposed by the common law. See, for example, Bryant v Fawdon Pty Ltd (1993) A Tort Rep 81-204, 62,005 - 62,006. In other cases it was held that the OLA imposes on an occupier a duty of care to entrants and that the OLA covers the field; that is, a concurrent duty is not owed at common law. See, for example, Tonich v Macaw Nominees Pty Ltd (Unreported, WASCA, Library No 940119, 11 March 1994), 13. Subsequently, many cases have been litigated on the basis that an occupier owes an entrant concurrent duties at common law and under s 5 of the OLA. See Homestyle [21] - [29], where I review a number of the decisions. See also Watch Tower Bible Society and Tract Society of Australia v Sahas [2008] WASCA 51; (2008) 36 WAR 234.
63 No argument was addressed to this court as to the juridical basis of an occupier's duty of care following the enactment of the OLA. It is unnecessary to resolve the issue in the present case. However, the true position should be determined by this court in an appropriate case. The unsatisfactory state of the law, as developed by the Full Court, must not remain unresolved indefinitely.
64 The Civil Liability Amendment Act 2003 (WA) amended the CLA by introducing, amongst other provisions, s 3A and pt 1A, comprising s 5A - s 5P. Part 1A, which is headed 'Liability for harm caused by the fault of a person', has been amended subsequently, but those amendments are not relevant to this appeal. Section 3A and pt 1A came into operation on 1 December 2003.
65 The Civil Liability Amendment Act 2003 was enacted in response to the Final Report of the Review of the Law of Negligence (the Ipp Report) which was submitted to the Commonwealth Minister for Revenue and Assistant Treasurer on 30 September 2002. Comparable legislation in response to the Ipp Report has been enacted in New South Wales, Victoria, Queensland, Tasmania and the Australian Capital Territory. See the Civil Liability Act 2002 (NSW), the Wrongs Act 1958 (Vic), the Civil Liability Act 2003 (Qld), the Civil Liability Act 2002 (Tas) and the Civil Law (Wrongs) Act 2002 (ACT).
(1) Subject to sections 3A and 4A, this Part applies to any claim for damages for harm caused by the fault of a person unless this section states otherwise.
(2) This Part extends to a claim for damages for harm caused by the fault of a person even if the damages are sought to be recovered in an action for breach of contract or any other action.
(3) Divisions 2, 3, 4, 5 and 6 do not apply unless the harm giving rise to the claim for damages arises out of an incident happening on or after 1 December 2003 (being the day on which the Civil Liability Amendment Act 2003 section 8, which inserted those Divisions, came into operation).
67 The terms 'harm', 'personal injury' and 'personal injury damages' are defined in s 3 of the CLA. 'Harm' means 'harm of any kind', and includes 'personal injury', 'damage to property' and 'economic loss'. It is unnecessary to set out the other definitions. It is sufficient to note that the injury sustained by the respondent in the present case is a 'personal injury' as defined, and that the damages she sought and was awarded are 'personal injury damages' as defined.
68 By s 3A(1) of the CLA, relevantly, pt 1A (or some provisions of pt 1A) do not apply to specified classes of damages. The specified classes do not include personal injury damages arising from the breach of a duty of care owed by an occupier or a lessor of residential premises either at common law or under the OLA. Section 3A(2) provides, in essence, for the specified classes to be amended or supplemented by regulation, but no relevant regulations have been made.
69 Division 2 of pt 1A is headed 'Duty of care'. It comprises s 5B, which reads:
(1) A person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless -
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known);
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) -
(a) the probability that the harm would occur if care were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the social utility of the activity that creates the risk of harm.
70 Section 5B of the CLA is similar to, but not identical with, s 5B of the Civil Liability Act 2002 (NSW) (the New South Wales Act). Section 5B of the New South Wales Act reads:
(1) A person is not negligent in failing to take precautions against a risk of harm unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a) the probability that the harm would occur if care were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of harm.
71 In Sheehan v State Rail Authority [2009] NSWCA 261, Beazley JA (Giles JA agreeing) observed that the New South Wales Act does not define when a duty of care is owed [55]. Her Honour then said:
That determination remains subject to the common law. Section 5B deals with breach [55].
72 Similarly, in Roads and Traffic Authority (NSW) v Refrigerated Roadways Pty Ltd [2009] NSWCA 263; (2009) 168 LGERA 357, Campbell JA (McColl JA agreeing & Sackville AJA agreeing generally) examined and applied s 5B of the New South Wales Act in the context of the legal test for breach of duty, and not in the context of whether a duty of care existed [172] - [177]. This approach was also adopted by McColl JA (Ipp JA agreeing) in Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364 [89] - [90], [118] - [119], [125] - [140].
73 In Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 260 ALR 628, the High Court held, relevantly, that the appellant, who carried on a reception and restaurant business at premises that were licensed under the Liquor Act 1982 (NSW), owed each of the respondents, who were patrons of the business, a duty to take reasonable care to prevent injury to them from the violent, quarrelsome or disorderly conduct of other persons on the premises.
74 The joint reasons of French CJ, Gummow, Hayne, Heydon and Crennan JJ do not give the impression that s 5B of the New South Wales Act has modified or supplanted the common law principles for determining whether a duty of care exists or not. This is readily apparent from the following. First, their Honours said that although s 5B (and s 5C) of the New South Wales Act appears beneath the heading 'Duty of care', that heading is apt to mislead [13]. Secondly, their Honours said that both of those provisions are evidently directed to questions of breach of duty [13]. Thirdly, their Honours said that s 5B, s 5C, s 5D and s 5E are central to questions of breach of duty and causation [15]. Fourthly, their Honours addressed the question of whether a duty of care was owed, in the case before them, solely by reference to the common law and the Liquor Act. They said:
In considering whether a common law duty of care should be held to exist in these cases, it is important to recognise that the provisions of the Liquor Act that have been mentioned have close analogies in other states and territories. Though variously expressed, all states and territories make provision for a licensee of licensed premises to remove from, or prevent the entry to, licensed premises of violent or quarrelsome persons (section 114(2) of the Liquor Control Reform Act 1998 (Vic), and see also s 108(4)(b) of that Act; s 124(1) of the Liquor Licensing Act 1997 (SA); ss 165 and 165A of the Liquor Act 1992 (Qld); s 115 of the Liquor Control Act 1988 (WA); ss 62 and 79A of the Liquor Licensing Act 1990 (Tas); ss 105 and 121 of the Liquor Act (NT); s 143 of the Liquor Act 1975 (ACT)). All state and territory liquor legislation forbids the sale of liquor without a licence. All state and territory liquor legislation provides for the licensing of premises on which liquor may be sold and consumed, and not only regulates the sale and service of liquor in such places, but also (as already noted) directly or indirectly regulates the conduct of persons who are on the premises.
It is against this statutory background that the question of duty of care must be considered, not for the purpose of developing the common law by analogy with statute law (compare Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49; 168 ALR 123; [1999] HCA 67 at [18]-[28]) but to ensure that the imposition of a common law duty of reasonable care of the kind now in question would not run counter to the statutory requirements imposed on licensees in all Australian jurisdictions.
...
Several considerations set the present case apart from Modbury and point to the conclusion that Adeels Palace owed each plaintiff a relevant duty of care. First, the complaint that was made in these cases was that the occupier of premises failed to control access to, or continued presence on, its premises (compare Modbury at [117]). Secondly, the premises concerned were licensed premises where liquor was sold. They were, therefore, premises where it is and was well recognised that care must be taken lest, through misuse and abuse of liquor, 'harm [arise] from violence and other anti-social behaviour' (section 2A of the Liquor Act). And thirdly, the particular duty said to have rested on the occupier of the premises (who was the operator of the business that was conducted on the premises) is a duty to take reasonable care to prevent or hinder the occurrence of events which, under the Liquor Act, the licensee was bound to prevent occurring - violent, quarrelsome or disorderly conduct. (And although variously expressed in the legislation of other Australian jurisdictions, the evident scheme of all liquor licensing laws in Australia is to minimise anti-social conduct both on and off licensed premises associated with consumption of alcohol) [21], [22], [25]. (emphasis added)
Fifthly, their Honours said that the question of breach of duty must be considered by reference to the relevant provisions of the Civil Liability Act - in particular s 5B [27]. A little later their Honours added that whether any, and how many, security personnel should have been provided to satisfy the appellant's duty to take reasonable care depended upon the considerations identified in s 5B(2) [30].
75 As I have mentioned, s 5B of the CLA is similar to, but not identical with, s 5B of the New South Wales Act. For present purposes, the only material difference in wording between the provisions is to be found in the opening words of s 5B(1). The Western Australian provision states that a person 'is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm' unless pars (a), (b) and (c) of s 5B(1) are satisfied. The New South Wales provision states that a person 'is not negligent in failing to take precautions against a risk of harm' unless pars (a), (b) and (c) of s 5B(1) are satisfied. The term 'negligence' is defined in s 5 of the New South Wales Act to mean the failure to exercise reasonable care and skill.
76 In my opinion, the difference in language in s 5B(1) of the CLA is insufficient to distinguish the authorities which have held or proceeded on the basis that s 5B of the New South Wales Act relates to breach of a duty of care and does not modify or supplant the common law principles which determine whether a duty of care exists or not.
77 In any event, I am satisfied on my own analysis that s 5B of the CLA relates to breach of a duty of care and does not modify or supplant the common law principles which determine whether a duty of care exists or not.
78 Some observations may be made about the formulation in s 5B(1) that a person 'is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm':
(a) the term 'harm' is defined in s 3 of the CLA to include not only 'personal injury', but also 'damage to property' and 'economic loss';
(b) the word 'fault' may have been used in s 5B(1) instead of 'negligence' to ensure that the provision extends, at least, to liability in tort that is not based on negligence, but it is unnecessary to resolve this point; and
(c) the phrase 'in failing to take precautions against a risk of harm' refers to a failure by the person in question to take positive action against the possibility of the occurrence of harm of any kind including personal injury, damage to property and economic loss.
79 The opening words of s 5B(1) (that is, a person 'is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm') indicate that s 5B does not modify or supplant the common law principles which determine whether a duty of care exists or not because those words appear to be based on the premise that, apart from s 5B(1), the person in question would or may be held liable for the harm caused, such liability arising from the existence of a duty imposed otherwise than under s 5B. In particular, the words 'that person's fault in failing to take precautions against a risk of harm' indicate that the person concerned has wrongfully omitted to take steps to guard against the occurrence of the relevant risk and that the failure was wrongful because the person concerned disregarded a duty imposed otherwise than under s 5B.
80 Further, it is significant that, by contrast with s 5W of the CLA, s 5B does not specify any principles to be applied in determining whether a person owes a duty of care or not. Section 5W appears in pt 1C of the CLA. Part 1C is headed 'Liability relating to public function'. Section 5W states that in determining whether a public body or officer has a duty of care or has breached a duty of care in proceedings in relation to a claim to which pt 1C applies, the 'following principles apply'. The relevant principles are then set out in pars (a), (b), (c) and (d) of s 5W.
81 Also, the opening words of s 5B(1) must, of course, be construed in the context of s 5B as a whole. In particular, the opening words must be read with pars (a), (b) and (c) of s 5B(1). It is apparent from the content of pars (a), (b) and (c), and the requirement that they be satisfied before a person may be liable for harm caused by that person's fault, that pars (a), (b) and (c) relate to the standard of care (that is, the measure of the discharge of the person's duty of care).
82 My preferred construction of the statutory text of s 5B of the CLA is confirmed by the explanatory memorandum to the Bill which upon enactment became the Civil Liability Amendment Act 2003 (WA) and the Minister's second reading speech in relation to that Bill. See s 19 of the Interpretation Act 1984 (WA).
(a) Part 1A, relevantly:
This Part addresses the key recommendations contained in chapters 7 and 8 of the Ipp report on the general principles of the law of negligence. The provisions deal with foreseeability, the standard of care, causation and remoteness of damage, contributory negligence and assumption of risk. There is agreement between the Commonwealth and the States, reached at the Ministerial meeting on public liability insurance held in Brisbane on 15 November 2002, on implementing the key Ipp report recommendations on a nationally consistent manner, so that the law of negligence which is currently based on the common law will continue to be consistent.
The purpose is to make a legislative statement that will reduce the element of uncertainty that the Ipp report found to have developed in the law of negligence, and to suggest to courts a suitable framework in which to resolve individual cases. (emphasis added)
This provision implements recommendation 28 of the Ipp report on the standard of care under the law of negligence. It codifies the present law as to which risks a defendant should have anticipated. The codification is intended to set a standard higher than 'far-fetched or fanciful' but not so high as to limit the duty of care to 'significant' risks. These general principles will apply not only to personal injury claims but will extend to all common law negligence claims.
Subsection (1) sets out the general principles that must be taken into account when assessing the appropriate standard of care to be taken by a person in precaution against a risk of harm to another.
Subsection (2) requires courts to consider certain factors in assessing the precautions that would have been taken by a reasonable person in a particular case. The factors are not exclusive of consideration by the court of other relevant circumstances of that case. The court must weigh up all these factors in each case to decide whether a defendant should have taken action to reduce or avoid a risk. (emphasis added)
The Minister's second reading speech contains statements to similar effect. See Western Australia, Parliamentary Debates, Legislative Assembly, 20 March 2003, pp 5691 - 5694.
85 The criteria in s 5(1) and s 5(4) of the OLA must be read with s 5B of the CLA. There is no relevant inconsistency between the criteria in s 5(1) and s 5(4) of the OLA on the one hand and s 5B of the CLA on the other in their application to the facts and circumstances of the present case. It is therefore unnecessary to consider how any such inconsistency (if it were to emerge in any other case) should be resolved.
86 It appears that in New South Wales the law of occupier's liability is, subject to the civil liability statute, governed by the common law. There is no statute comparable to the OLA. In these circumstances, French CJ, Gummow, Hayne, Heydon and Crennan JJ observed in Adeels that the absence of consideration at trial of the matters prescribed by s 5B of the New South Wales Act 'may have been reason enough to conclude that the question of breach of duty was not determined properly by the trial judge' [39].
87 In my opinion, some well-established propositions concerning the notion of a 'reasonable person' and the standard of 'reasonableness' generally, under the common law of negligence, remain relevant in considering cases of alleged breach of duty by an occupier or lessor. First, the determination of what, if anything, a reasonable person in the occupier's or lessor's position would have done involves an assessment of what would have been reasonable and practicable for the occupier or lessor to have done. Secondly, this inquiry is not to be undertaken in hindsight. It is necessary to look forward to identify what a reasonable person would have done, not backward to identify what would have avoided the particular injury. Thirdly, contemporary standards within the community are relevant in determining what is reasonable in the circumstances of a particular case. Fourthly, reasonableness may require no response to a foreseeable risk that is not insignificant. Fifthly, the occurrence of a foreseeable risk, that was not insignificant, does not establish unreasonableness. See New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486 [7] (Gleeson CJ), [57] - [58] (Gummow & Hayne JJ); Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341 [93] (Hayne J); Mulligan v Coffs Harbour City Council [2005] HCA 63; (2005) 223 CLR 486 [3] (Gleeson CJ & Kirby J), [50] (Hayne J); Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 [126] - [129] (Hayne J); Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234 [36] (Gleeson CJ, McHugh, Kirby, Hayne & Heydon JJ); Illawarra Area Health Service v Dell [2005] NSWCA 381 [85] Mason P (Handley JA & Young CJ agreeing); Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301, 309 (Mason, Wilson & Dawson JJ).
88 These propositions are not inconsistent with the criteria in s 5(1) and s 5(4) of the OLA or with s 5B of the CLA. The fourth and fifth propositions reflect the provisions of s 5B(1)(b) of the CLA.
89 Division 3 of pt 1A of the CLA is headed 'Causation'. It comprises s 5C and s 5D, which read:
(1) A determination that the fault of a person (the 'tortfeasor') caused particular harm comprises the following elements -
(a) that the fault was a necessary condition of the occurrence of the harm (factual causation); and
(b) that it is appropriate for the scope of the tortfeasor's liability to extend to the harm so caused (scope of liability).
(2) In determining in an appropriate case, in accordance with established principles, whether a fault that cannot be established as a necessary condition of the occurrence of harm should be taken to establish factual causation, the court is to consider (amongst other relevant things) -
(a) whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor; and
(b) whether and why the harm should be left to lie where it fell.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm (the injured person) would have done if the tortfeasor had not been at fault -
(a) subject to paragraph (b), the matter is to be determined by considering what the injured person would have done if the tortfeasor had not been at fault; and
(b) evidence of the injured person as to what he or she would have done if the tortfeasor had not been at fault is inadmissible.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor.
In determining liability for damages for harm caused by the fault of a person, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.
90 Section 5C and s 5D of the CLA are almost identical in substance with s 5D and s 5E of the New South Wales Act. A notable difference, which may be significant, is the reference in s 5C(2) of the CLA to 'an appropriate case' whereas the equivalent s 5D(2) of the New South Wales Act refers to 'an exceptional case'.
91 The question of causation in cases where an entrant or lessee claims damages in negligence for personal injury against an occupier or a lessor of residential premises is governed by the CLA. See Adeels [41].
92 In Adeels, French CJ, Gummow, Hayne, Heydon and Crennan JJ analysed s 5D(1) of the New South Wales Act, as follows:
Section 5D(1) of that Act divides the determination of whether negligence caused particular harm into two elements: factual causation and scope of liability.
Dividing the issue of causation in this way expresses the relevant questions in a way that may differ from what was said by Mason CJ, in March v E & M H Stramare Pty Ltd (March v E & M H Stramare Pty Ltd (1991) 171 CLR 506; 99 ALR 423; [1991] HCA 12 (March)) to be the common law's approach to causation. The references (March at CLR 515; ALR 430; quoting from Fitzgerald v Penn [1954] HCA 74; (1954) 91 CLR 268 at 277; [1954] HCA 74; [1955] ALR 1 at 6; [1954] HCA 74) in March to causation being 'ultimately a matter of common sense' were evidently intended to disapprove the proposition 'that value judgment has, or should have, no part to play in resolving causation as an issue of fact'. By contrast, s 5D(1) treats factual causation and scope of liability as separate and distinct issues.
It is not necessary to examine whether or to what extent the approach to causation described in March might lead to a conclusion about factual causation different from the conclusion that should be reached by applying s 5D(1). It is sufficient to observe that, in cases where the Civil Liability Act or equivalent statutes are engaged, it is the applicable statutory provision that must be applied.
Next it is necessary to observe that the first of the two elements identified in s 5D(1) (factual causation) is determined by the 'but for' test: but for the negligent act or omission, would the harm have occurred? [42] - [45].
93 Their Honours concluded that, in the case before them, the 'but for' test of factual causation was not established:
It was not shown to be more probable than not that, but for the absence of security personnel (whether at the door or even on the floor of the restaurant), the shootings would not have taken place [53].
Section 5D(1) was not satisfied because the absence of security personnel was not a necessary condition of the occurrence of the harm to either of the respondents.
94 French CJ, Gummow, Hayne, Heydon and Crennan JJ then considered whether s 5D(2) of the New South Wales Act applied. They said, relevantly:
Section 5D(2) makes provision for what it describes as 'an exceptional case'. But the Act does not expressly give content to the phrase 'an exceptional case'. All that is plain is that it is a case where negligence cannot be established as a necessary condition of the harm; the 'but for' test of causation is not met. In such a case the court is commanded 'to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party'. But beyond the statement that this is to be done 'in accordance with established principles', the provision offers no further guidance about how the task is to be performed. Whether, or when, s 5D(2) is engaged must depend, then, upon whether and to what extent 'established principles' countenance departure from the 'but for' test of causation.
At once it must be recognised that the legal concept of causation differs from philosophical and scientific notions of causation (March at CLR 509; ALR 425; Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408 at 412-13, 418-19 and 428; [1992] HCA 27; 107 ALR 617 at 618-20, 623-4 and 631; [1992] HCA 27 (Bennett); Chappel at [6] and [62]) It must also be recognised that before the Civil Liability Act and equivalent provisions were enacted, it had been recognised (Bennett at CLR 413; ALR 620; Chappel at [66]-[67]) that the 'but for' test was not always a sufficient test of causation. But as s 5D(1) shows, the 'but for' test is now to be (and has hitherto been seen to be) a necessary test of causation in all but the undefined group of exceptional cases contemplated by s 5D(2).
Even if the presence of security personnel at the door of the restaurant might have deterred or prevented the person who shot the plaintiffs from returning to the restaurant, and even if security personnel on the floor of the restaurant might have been able to intervene in the incident that broke into fighting in time to prevent injury to anyone, neither is reason enough to conclude that this is an 'exceptional case' where responsibility for the harm suffered by the plaintiffs should be imposed on Adeels Palace. To impose that responsibility would not accord with established principles [54] - [56].
95 In the present case, the trial judge made findings of fact, relevantly, as follows:
(a) The respondent fell at the place where her son said he found her, which corresponded to the position where a birdbath had previously been on an area of lawn in the garden at the rear of the block of units [122] - [124].
(b) The lawn was not in 'pristine' or 'bowling green' condition. It had bare patches and weeds growing in it, and was 'patchy and dried off' and 'coming out of dormancy' [125] - [127].
(c) The lawn was mowed regularly by an independent contractor, Mr Waterson, engaged by the appellant [127].
(d) A person who had been a tenant of one of the units in the block had placed the birdbath on the lawn. After some time the birdbath was removed. His Honour found that 'either a section of the grass had been cut out to receive the base of the birdbath or alternatively the birdbath had caused a depression in the grass in that area' [128].
(e) When the birdbath was removed, some time before the respondent fell, there was a 'depression' in the part of the lawn on which the birdbath had stood [129], [145].
(f) The depression had a depth of 'approximately 1 inch at its centre' [131] and did not have 'clean cut edges' [133]. Since the removal of the birdbath, the edges of the depression had been 'trodden down' [136]. His Honour did not make a finding as to the approximate diameter of the depression, but it appears from the evidence that it was between about 24 cm and about 2 feet [29], [32].
(g) When the accident occurred the respondent was crossing the lawn. She was hurrying. Indeed, she said in re-examination that she was 'practically running' [134].
(h) The respondent was generally familiar with the rear garden including the lawn. It was outside the backdoor of her unit. She went there regularly to hang her washing on the clothes line. She also spent time in the area meeting and speaking to other residents. Also, she would sit on the lawn. She knew that the birdbath had been placed on the lawn and later removed [135].
(i) There was no evidence that the respondent saw or knew of the depression in the lawn [136].
(j) Although the depression was not an 'obvious risk' to the respondent [137], it was not a 'trap' [144].
(k) The units in the block were occupied by 'senior citizens' over the age of 55 years [138]. His Honour said that 'older persons (not necessarily once they reach 55) tend to be less steady on their feet and perhaps more susceptible to falls' [138]. He added that 'when elderly people do fall the sorts of injuries that they sustain can [be] and often are catastrophic' [138].
96 There are two interesting features of the evidence at the trial. First, neither trial counsel asked the respondent whether she was wearing any shoes (and, if so, what type) when she fell. Secondly, neither counsel asked Mr Waterson whether he had noticed the depression in the course of mowing the lawn.
97 The trial judge did not make an express finding as to whether the appellant knew or should have known of the existence of the depression, but his reasons as a whole indicate that he determined the action on the basis that the appellant should have known of it. Neither counsel contended that this court should proceed on any other basis.
98 In the present case, the trial judge reasoned, relevantly, as follows:
(a) The risk of injury to the respondent or to a class of persons including the respondent (that is, the elderly) was not 'far-fetched or fanciful' within Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40. His Honour added:
A grassed area is a natural surface. It is in the normal course of things liable to change with prevailing circumstances and perhaps develop undulations for one reason or another. A lawn such as that at these premises is not kept to bowling green standards.
That being the case there is a risk of a person who is less steady on their feet being subject to a risk of falling if there is a depression in the surface over which that person may traverse [140] - [141].
(b) According to his Honour, the outcome of the case turned upon 'what a reasonable man would do by way of response to the risk' [142].
(c) The magnitude of the risk and the degree of probability of its occurrence were 'not insignificant', having regard to the fact that the block of units was occupied by 'senior citizens' over the age of 55 years [143].
(d) The 'reasonable response' to the risk would have been 'to take some action to alleviate the risk of an elderly person stepping into the depression and falling in some way or other' [145].
(e) The risk could have been removed by filling the depression with sand at an insignificant cost [146].
100 His Honour noted the appellant's reliance on s 5N of the CLA. By s 5N(1), a person who suffers harm is presumed to be aware of the risk of harm if it was an 'obvious risk', unless the person proves on the balance of probabilities that he or she was not aware of it. By s 5N(2), a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk. The term 'obvious risk' is defined in s 5F. See also s 5E and s 5M. It is unnecessary to reproduce the definition. His Honour rejected the appellant's reliance on s 5N on the basis of his findings that the risk was not obvious and that there was no evidence the respondent was aware of the depression or 'the risks associated with it' [149].
101 Finally, in this context, the trial judge noted the appellant's reliance on s 5O of the CLA. By s 5O(1), a person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an 'obvious risk' to the plaintiff. His Honour held that, in view of his finding that the risk was not an 'obvious risk' within s 5N of the CLA, s 5O did not apply [150].
(a) the depression in the lawn created a foreseeable risk of injury which was not an insignificant risk (Civil Liability Act 2002 s 5B(1)(a) and (b));
(b) by implication, the depression constituted a danger (Occupier's Liability Act 1985 s5(1)); and
(c) a reasonable person in the appellant's position would have taken the precaution of filling it with sand (Civil Liability Act 2002 s 5B(1)(c)),
such conclusions being unreasonable on the basis of the facts as found and otherwise unsupported by the evidence.
(a) the respondent's fall was caused by the depression in the lawn when there was no evidence from which that inference could be drawn;
...
103 Ground 2(b) was abandoned at the hearing of the appeal.
104 There is no doubt that at all material times the appellant (whether in its capacity as occupier or lessor) owed a duty of care to the respondent. The duty required the appellant, relevantly, to exercise reasonable care to avoid risks of physical injury to the respondent by reason of any dangers due to the state of the premises or to anything done or omitted to be done on them.
105 In Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council [2001] HCA 29; (2001) 206 CLR 512, Mrs Ghantous tripped and fell while walking along a concrete footpath. Since the footpath was originally constructed (which was not shown to have been negligent in this respect), erosion had caused the earth to subside in some places, so that the verge was about 50 mm below the concrete. When she stepped aside to allow other pedestrians to pass, Mrs Ghantous placed her foot so that it was partly on the concrete and partly on the lower verge. This caused her to fall. Gleeson CJ said in the context of considering the so-called misfeasance/non-feasance rule protecting those who built and maintained roads:
In England, the common law rule which the applicants in both matters seek to challenge was abolished by statute in 1961 (Highways (Miscellaneous Provisions) Act 1961 (UK), s 1(1)). It then became easier for a pedestrian who was injured by falling on a road or footpath to succeed in an action for damages resulting from failure on the part of the responsible authorities to maintain and repair the road or footpath (see Salmond and Heuston, The Law of Torts, 21st ed (1996), pp 90-91). Even so, when general principles of negligence, unqualified by any rule of immunity, were applied, the courts insisted that an injured plaintiff had to show that the road or footpath was dangerous. That did not mean merely that it could possibly be an occasion of harm. The fact that there was unevenness of a kind which could result in a person stumbling or falling would not suffice (Meggs v Liverpool Corporation [1968] 1 WLR 689; [1968] 1 All ER 1137). Not all footpaths are perfectly level. Many footpaths are unpaved. People are regularly required to walk on uneven surfaces on both public and private land.
In Littler v Liverpool Corporation ([1968] 2 All ER 343 at 345), Cumming-Bruce J said:
'Uneven surfaces and differences in level between flagstones of about an inch may cause a pedestrian temporarily off balance to trip and stumble, but such characteristics have to be accepted. A highway is not to be criticised by the standards of a bowling green' [6] - [7].
106 Gaudron, McHugh and Gummow JJ made these observations:
The formulation of the duty in terms which require that a road be safe not in all circumstances but for users exercising reasonable care for their own safety is even more important where, as in Ghantous, the plaintiff was a pedestrian. In general, such persons are more able to see and avoid imperfections in a road surface. It is the nature of walking in the outdoors that the ground may not be as even, flat or smooth as other surfaces. As Callinan J points out in his reasons in Ghantous, persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, tree roots or holes. Of course, some allowance must be made for inadvertence. Certain dangers may not readily be perceived because of inadequate lighting or the nature of the danger (as in Webb v South Australia ((1982) 56 ALJR 912; 43 ALR 465), or the surrounding area (as in Buckle, where the hole was concealed by grass (Buckle [1936] HCA 65; (1936) 57 CLR 259 at 266). In such circumstances, there may be a foreseeable risk of harm even to persons taking reasonable care for their own safety. These hazards will include dangers in the nature of a 'trap' or, as Jordan CJ put it, 'of a kind calling for some protection or warning' (Searle v Metropolitan Water, Sewerage and Drainage Board (1936) 13 LGR 115 at 117). In Romeo, Toohey and Gummow JJ noted in a different context that the care to be expected of members of the public is related to the obviousness of the danger (Romeo (1998) 192 CLR 431 at 455 [52]). Kirby J pointed out in the same case that even an occupier of premises 'is generally entitled to assume that most entrants will take reasonable care for their own safety' (Romeo (1998) 192 CLR 431 at 478 [123]). Each case will, of course, turn on its own facts (Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180 at 253 [198]; Avenhouse v Hornsby Shire Council (1998) 44 NSWLR 1 at 8; Stapleton, 'Duty of Care Factors: a Selection from the Judicial Menus', in Cane and Stapleton (eds), The Law of Obligations (1998) 59, at pp 60-63) [163].
107 In Neindorf, the respondent suffered injury when she tripped and fell on an uneven surface in the driveway of the appellant's home, while attending a garage sale. Gleeson CJ said:
Very few occupiers keep their land in perfect repair. People are permitted to occupy, and some people can only afford to occupy, premises that are in a state of some disrepair. Legislative and regulatory incursions upon the general proposition that a landowner may use land as the landowner sees fit, extensive as they have been, have never gone to the point of requiring people to remove all potential hazards from their land. It would not be possible to comply with such a requirement.
...
Developments in legal principle do not ... alter the practical realities to which legal principle must be applied. The same problems of everyday living that were sought to be addressed by the old, categorical approach to liability still had to be accommodated by the new approach. Those practical realities include the following. Not all people live, or can afford to live, in premises that are completely free of hazards. In fact, nobody lives in premises that are risk-free. Concrete pathways crack. Unpaved surfaces become slippery, or uneven. Many objects in dwelling houses could be a cause of injury. People enter dwelling houses for a variety of purposes, and in many different circumstances. Entrants may have differing capacities to observe and appreciate risks, and to take care for their own safety. An ordinary kitchen might be reasonably safe for an adult, and hazardous to a small child. The expression 'reasonable response in the circumstances' raises a question of normative judgment ... The fundamental problem remains the extent to which it is reasonable to require occupiers to protect entrants from a risk of injury associated with the condition of the premises. That problem is no longer addressed by prescriptive legal rules which attempt to establish precise and different standards of care for different classes of entrant. Yet the problem remains [4], [8].
The response of most people to many hazards in and around their premises is to do nothing. The legislature has recognised, and has reminded courts, that, often, that may be a reasonable response. Whether, in any particular case, it is a reasonable response is not a matter of legal doctrine. It is not a question of law. It is a question that, historically, courts committed to juries as a question of fact. Judges will have their own opinions about reasonableness, but they are not opinions of law (cf Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9; (2002) 208 CLR 460 at 474 [44] - [45], 500 [127].
108 I am satisfied that the trial judge was in error in deciding that the applicable standard of care (that is, the measure of the discharge of the appellant's duty of care to the respondent) required the appellant to fill in the depression with sand. I am also satisfied that, as a result of this error, his Honour wrongly held that the appellant had breached its duty. My reasons are as follows.
109 I will deal, first, with s 5B(1)(c) of the CLA which, as I have mentioned, provides that a person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless, in the circumstances, a reasonable person in the person's position would have taken those precautions.
110 A lawn in an ordinary suburban block of home units is not perfectly level. It is to be expected that the surface will have some unevenness. This may occur, as in the present case, by the action of human beings. Alternatively, it may occur by natural means; for example, minor erosion or subsidence occasioned by rainfall and run-off on parts where the vegetation is less dense. The depression in the present case was slight. Its diameter was between about 24 cm and about 2 foot and its depth at the centre was about 1 inch. Significantly, the depression did not have 'clean cut edges' [133]. They had been 'trodden down' [136].
111 I accept that the depression posed some risk to an elderly person, such as the respondent, who was hurrying and 'practically running' [134]. It was, however, a minor risk that people (even people over the age of 55 years) are required to cope with in the ordinary course of their daily activities. The depression was not a trap. It was not a hazard of a kind requiring some protection or warning. Indeed, it was not a hazard at all for most people over the age of 55 years taking reasonable care for their own safety. The occupants of the block of units lived independently. The premises were not a nursing home or a facility for people who were frail and in need of care. There was no evidence that the depression had previously caused or materially contributed to a fall. A reasonable person in the appellant's position would not, in the circumstances, have filled in the depression for the purpose of guarding against the risk that the respondent or another elderly person might, by some means, fall and sustain an injury as a result of placing a foot wholly or partly within the depression while hurrying or 'practically running'.
112 I turn now to consider the matters enumerated in s 5(4) of the OLA.
113 As to s 5(4)(a) (the gravity and likelihood of the probable injury), the gravity and likelihood of the probable injury was low. The nature and extent of the risk was minor and of a kind ordinarily to be expected in a lawn in an ordinary suburban block of home units.
114 As to s 5(4)(b) (the circumstances of the entry onto the premises), the appellant and the respondent were in a contractual relationship of lessor and lessee. The respondent was lawfully and contractually entitled to exclusive possession of her unit and to use and enjoy the common areas with the other lessees.
115 As to s 5(4)(c) (the nature of the premises), the premises were modest residential premises providing housing for people aged at least 55 years who were able to live independently.
116 As to s 5(4)(d) (the knowledge which the occupier of premises has or ought to have of the likelihood of persons or property being on the premises), the appellant had actual knowledge that the respondent was a resident at the block of units.
117 As to s 5(4)(e) (the age of the person entering the premises), as I have mentioned, the respondent was aged 72 years when she suffered her injury.
118 As to s 5(4)(f) (the ability of the person entering the premises to appreciate the danger), the trial judge found that although the depression was not a 'trap', it was not an 'obvious risk' to the respondent and there was no evidence that she knew of its existence [144], [149]. There was, however, on the other hand, no finding or evidence to the effect that the respondent's age prevented her from ascertaining the existence of the depression or that she suffered from any relevant disability.
119 As to s 5(4)(g) (the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person), I would not describe the risk created by the depression as a 'danger' within s 5(4)(g) or s 5(1). Although the burden (in terms of time and cost) on the appellant in filling in the depression with sand would have been insignificant, this must be balanced against my conclusion that the gravity and likelihood of the probable injury was low and the risk was minor and of a kind ordinarily to be expected in premises of this kind. Also, although the burden of eliminating the depression in question was insignificant, the burden on the appellant of eliminating all slight depressions in the lawn or elsewhere on the premises (including paved surfaces) could not be so described.
120 In my opinion, on a proper application of s 5B(1)(c) of the CLA, further or alternatively on a proper application of s 5(2) and s 5(4) of the OLA, the respondent's action against the appellant should have failed.
121 Ground 1(b) and (c) have been made out. It is unnecessary to deal with ground 1(a).
122 In my opinion, it was open to the trial judge to infer that the presence of the depression materially contributed to the respondent's fall. It is true that his Honour did not make an express finding on the point. However, he made these findings:
(a) on the day in question the respondent fell and sustained the injuries about which she complained [119];
(b) the position of the fall was as indicated on photograph number 13 by the respondent's son; and
(c) the position indicated by the respondent's son coincided 'to all intents and purposes with the same position marked by Ms Hortin [another tenant in the block of units]' as to where the birdbath had been located [123].
125 I would allow the appeal, set aside the judgment entered in the primary proceedings, and dismiss the respondent's action against the appellant.
(2009) 260 ALR 628
(1987) 162 CLR 479
(1986) 160 CLR 301
(2001) 206 CLR 512
(2007) 33 WAR 209
(2000) 205 CLR 166
(2000) 205 CLR 254
(2005) 223 CLR 486
(2005) 80 ALJR 341
(2007) 232 CLR 486
(1988) 15 NSWLR 65
(2009) 168 LGERA 357
(2005) 221 CLR 234
(2005) 223 CLR 422
(2008) 36 WAR 234
(1980) 146 CLR 40
(1999) 201 CLR 49
(1991) 171 CLR 506
(1954) 91 CLR 268
(1992) 176 CLR 408
(1936) 57 CLR 259
(1998) 192 CLR 431
(1999) 198 CLR 180
(1998) 44 NSWLR 1
(2002) 208 CLR 460