DRINKWATER & ORS v HOWARTH [2006] NSWCA 222 | Case summary

3 August 2006 DRINKWATER AND ORS v HOWARTH Judgment 1 BASTEN JA: On 28 July 2000 the respondent (Mr Bruce Howarth) suffered an injury outside the Parkway Hotel at French's Forest. It occurred when the respondent was following an acquaintance, Mr Clews, who was being escorted out of the hotel by two security officers, Messrs Anthony Drinkwater and Gavin Dyer, who, with their employer, are the present appellants. Briefly stated, the respondent was injured when Mr Clews was pushed towards him, causing him and Mr Clews to fall, as a result of which he suffered injuries, particularly to his ankle. 2 On 12 October 2005 his claim against the defendants was upheld by Truss DCJ who made orders for payment of damages by the appellants to the respondent. 3 In this Court the appeal is limited to a challenge based on the fact that her Honour did not expressly apply s 5B of the Civil Liability Act 2002 (NSW) in assessing the breach of duty. 4 The facts may be shortly adverted to without going into detail, which is not necessary in order to dispose of this appeal. 5 Her Honour accepted, at [30], the account of the incident given by the respondent. That account is set out at [12] and [13] of her Honour's judgment relevantly as follows: "There is also no dispute about the fact that Clews was arguing with the defendants, yelling, struggling and kicking, and that at some point the plaintiff followed them out of the bar. The plaintiff said that when he arrived at the driveway, the second and third defendants still had hold of Mr Clews who was trying to free himself. He said that he walked up to Clews from behind, put his hand on his shoulder, said 'come on, let's go' and that he was going to put him on the courtesy bus. He said either the second or third defendant let go of Clews and said words to the effect 'well, have him then' whereupon he shoved Clews' chest causing him to fall backwards against the plaintiff, forcing him onto the ground with Clews landing on top of him. The plaintiff heard his ankle snap." 6 In relation to her Honour's consideration of the breach of duty she noted that the defendants, the present appellants, accepted that they owed a duty of care to patrons of the hotel including those affected by alcohol. 7 Her Honour continued at [35] of the judgment: "The plaintiff referred the court to a number of authorities, most of which dealt with the duty owed by hoteliers and clubs, but submitted that the Court should apply the principles laid down by the High Court in The Council of the Shire of Wyong v Shirt (1979-80) 146 CLR 40. I am satisfied that when the second or third defendant pushed Mr Clews onto the plaintiff, it was foreseeable that this may cause injury to the plaintiff or to Mr Clews and that such risk could not be regarded as far-fetched or fanciful." 8 In relation to that passage it is submitted that her Honour erred especially in relation to the last three words in describing the risk as not far-fetched or fanciful. 9 It was said that according to s 5B of the Civil Liability Act the test is now different. Section 5B provides: 5B General principles (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. 10 That section was argued to have application to the facts as described above. Whether or not it does may be open to some doubt. It deals with the question of whether a person has been negligent or not "in failing to take precautions against a risk of harm". It may be that where a deliberate act had caused harm that section does not apply. 11 There must be an issue as to the interrelationship between ss 5B and 3B. Section 3B provides in effect that the provisions of the Act do not apply in respect of an intentional act that is done with intent to cause injury: see State of New South Wales v Ibbett [2005] NSWCA 445 at [5]-[11] (Spigelman CJ), [121]-[129] (Ipp JA) and [206]-[218] (Basten JA). 12 Her Honour rejected an argument that s 3B applied in the present case because she said there was no intention on the part of the defendants to injure the plaintiff. An intentional act may of course be intentional in the sense that it is intended to injure someone without necessarily being directed towards the plaintiff: an issue may arise as to the application of s 3B in that situation. 13 The matter has proceeded in this Court on the basis that s 5B applied and it is at least arguable that it does apply to a deliberate act taken without due care. The assumption may be accepted. The argument which is sought to be raised is that the legislature has deliberately removed the concept of a risk which is "not far-fetched or fanciful", as identified in Shirt's case, and replaced it with the concept of a risk that is "not insignificant". A number of questions arise in relation to that variation in the circumstances of the present case. 14 The first issue relied upon by he defendants in their written submission is that her Honour was not taken by the present appellants to s 5B, nor was it suggested by them that the situation under that section differed from the principles in Shirt. It is said that in accordance with the principles in Whisprun v Dixon (2003) 77 ALJR 1598 at [51] it is now inappropriate for the appellants to raise that argument. It is not necessary to dispose of the matter on that basis. 15 The second issue is that it is suggested that her Honour was led into error by the submissions made by the present respondents in argument below. We were taken to a passage in the submissions where Mr Mahony, for the respondent, said: "In accordance with the Wyong Shire Council v Shirt calculus it was foreseeable that the plaintiff would fall if they acted in this way. The magnitude of the risk was much more than far-fetched or fanciful." 16 Whether that submission in fact was inconsistent with the principle established in s 5B(1)(b) is unclear. A risk which is much more than far-fetched or fanciful may not differ materially from a risk which is not insignificant. I place no weight upon the way in which the matter was put before her Honour. 17 The argument, however, must be that in failing to advert to a risk which was not insignificant her Honour erred in a material respect which affected the outcome of the case. In my view that submission cannot be made out and indeed it is hard to understand how it can be presented in a tenable form. 18 In their written submissions the appellants noted that Mr Howarth, the respondent, had come within close proximity to the point where Mr Clews may have broken the hold of the security officers. That, they said, "clearly put the plaintiff at risk". 19 Section 5B is not concerned with how a risk came about. If the plaintiff was clearly at risk, then it cannot be said that the risk was insignificant. It was a clear risk. 20 In those circumstances it seems to me that the first ground of appeal, which is the only one relied upon in the present case, must fail. 21 I would only add that there is a danger in seeking to take each limb of s 5B separately in considering how it should operate. It is clear from the report of the committee which recommended the change to the foregoing common law principles that in changing the terminology from not far-fetched or fanciful they were concerned to ensure that attention was given to other aspects of the risk. 22 They expressly adopted a passage from the judgment of McHugh J in Tame v State of New South Wales (2002) 211 CLR 317 at [99] where his Honour noted that Mason J in Shirt had emphasised aspects of the nature of the calculation which needed to be undertaken, being matters which are now set out in subs (2) of s 5B. McHugh J in that passage noted the danger of treating the various elements as divisible and the importance of treating the concept of the reasonable person's response to a risk as part of a single overall test of reasonableness in the concept of the tort. 23 For those reasons, in my view the appeal should be dismissed. 24 HODGSON JA: I agree with Basten JA's judgment. I would add that in my opinion there may be a question as to the application of s 5B of the Civil Liability Act, not only to intentional acts, but also to positive negligent acts: there may be a question whether a positive negligent act is fairly described as failing to take precautions. 25 However, as Basten JA has shown, it is not necessary to consider that question in this case. Assuming that s 5B applies, in this case there is no possibility of a different result of applying a test that the risk in question be not insignificant, from applying the test as formulated in Shirt, namely that the risk be not far-fetched or fanciful. 26 TOBIAS JA: I agree with the judgment of Basten JA and with the additional remarks of the presiding judge. 27 HODGSON JA: The order of the Court is:

DRINKWATER & ORS v HOWARTH

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (15 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (3)

Cited By (15)