Erickson v Bagley & Anor [2014] VCC 2126

3 There is a dispute between the parties as to whether the plaintiff was paying rent or whether he was living in the premises rent-free because he was "hard up". There is also a dispute as to the period during which he was resident prior to the injury.

4 The parties also agree that the defendants, as occupiers of the premises, owed a duty to take such care as in all the circumstances of the case is reasonable to see that any person on the premises will not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises.[1]

5 The further facts relied upon by the plaintiff to establish the scope of the duty are set out in paragraph 5 and paragraph 6 of the Statement of Claim to the following effect:

"5 On the evening of 29 June 2010 the plaintiff suffered injury ('the injuries') when: he was walking down the front driveway of the premises towards the house and stepped into a hole in the driveway that was filled with rainwater, causing him to step sideways and place his foot on a sleeper that was covered in water and moss, falling onto a railing and landing on the ground ('the accident').

(a) the hole was approximately 80ml deep (sic) and two metres long;

(b) there was no artificial light illuminating the hole;

(c) the hole was a concealed danger known to the defendants and/or a concealed danger of which the defendants knew or ought to have known;

(d) the sleeper constituted a slipping hazard of which the defendants knew or ought to have known."

6 In the circumstances set out above, the plaintiff alleges that the defendants were in breach of their duty, particulars of which are set out in paragraph 7 of the Statement of Claim. In particular, the plaintiff relies on the following sub-paragraphs:

"(a) Failing to fill the hole;

(b) Failing to warn the plaintiff;

(c) Failing to ensure that there was adequate artificial light illuminating the driveway in the evening;

...

(e) Failing to ensure that the premises was free from hidden traps and dangers;

...

(h) Failing to ensure that the premises were free of slipping hazards."

7 At a view on the first day of hearing, the premises were shown to commence at Maroondah Highway by means of a driveway constructed of Lilydale toppings, or similar material, extending down some 30 metres on a gentle slope to a pergola enclosing some garden furniture of table and chairs. Immediately adjacent and to the right of the pergola was the front door of the residential loft. On the roof of the pergola was a sensor light pointing back up the driveway which was apparently powered by an electrical cord which was connected to a power socket approximately halfway down a supporting post of the pergola.

8 At no time during the opening by the plaintiff's counsel, or during evidence adduced by the plaintiff, was any reference made to the sensor light.

9 Similarly, no reference was made by defence counsel in her opening, and only cursorily in evidence-in-chief by the first defendant as to the existence of the sensor light.

10 It was during cross-examination of the first defendant that the following evidence was given with respect to the sensor light:

• "I had probably unplugged it before going on holiday and omitted telling the plaintiff";[2]
• "it creates a very bright floodlight";[3]
• "the floodlight illuminates the outside of the loft very well";[4]
• "the floodlight illuminates the whole driveway, including under the pergola";[5]
• "the floodlight was usually kept plugged in and working so that people staying at the loft would be able to see where they were going at night";[6]
• "the sensor light provided very good lighting for people walking down the driveway to the loft";[7]
• "the sensor light enabled people to walk down the driveway without any difficulties".[8]

11 When the first defendant was re-examined, he stated:

• when a car was parked as depicted in Photograph 12 (exhibit F), the sensor light illuminated the drive and the front of the driveway quite well because the lights were directed to either side of the car;[9]
• the sensor light was activated within a range of 6 metres;[10]
• once it is activated it stays on for about three minutes;[11]
• if someone is coming down the driveway the sensor light would activate when they were halfway down.[12]

12 I accept that the sensor light was in situ at the time of the incident and was probably operational. I also accept that the first defendant had probably unplugged it from the electricity socket before departing for his holiday and had not informed the plaintiff as such. However, I find that the light was plainly visible and a cursory examination would have revealed that it was unplugged. In such circumstances, one can perhaps understand that its existence did not feature in the plaintiff's case. Further, its existence and/or its operational capacity was not put to the plaintiff or his witnesses in cross-examination, nor did it materially figure in the first defendant's evidence-in-chief. I can only assume that both parties calculated that the forensic disadvantages outweighed any advantages in introducing the evidence at an earlier stage. Further, there was no specific pleading by either party with respect to the sensor light.

13 The plaintiff was born in January 1961 and was aged forty-nine at the time of the incident. In May 2010, he was living in Healesville at the house of his employer and friend, Murray Hardinge, and his wife, Julieanne. The plaintiff's wife and then thirteen-year-old son, Trent, were living in Port Macquarie. The plaintiff wished to obtain separate accommodation for himself and Trent during the mid-year term holidays.

14 The plaintiff claimed he moved into the loft of the premises on Saturday, 5 June 2010. Mr Bagley gave him a key and asked him if he would mind entering the loft from the front entrance so that he could have the rear entrance locked up whilst he was away.[13] The plaintiff's car was to be parked at the front entrance to the loft.[14]

15 Once he had moved into the loft, the plaintiff often enjoyed a cigarette and a drink under the pergola with Julieanne Hardinge after nightfall. He would open the blinds in the lounge room so that the artificial light inside could shine into the pergola area.[15]

16 On the evening of 29 June 2010, it had been raining and the plaintiff had parked his car in the driveway of the premises such that there was approximately 1 metre access between the driver's door and the boundary fence and sleeper, and presumably a similar access on the passenger side. Whilst entering the premises earlier that evening, he had not noted any particular areas where water had accumulated on the driveway. He prepared a dinner of king prawns and salad and after he had cleaned up, he decided to take the prawn shells out to the main bin.[16] The plaintiff opened the blind to the front of the loft and turned the lights on in the lounge room. He then walked out the front and went round the front of his car to the rubbish bin. He took the plastic bag out of the green bin and carried it to the main wheelie bin which was kept some 25 metres up the drive near a toilet block.[17] After depositing items in the wheelie bin, the plaintiff walked back down the driveway towards the house and described the incident with reference to Photograph 12 in exhibit F as follows:

"[I] had come to about the further - last - the post you can see in the middle of the photo and I'd put my foot in a puddle of water. So realising that I quickly picked up my foot and moved it to the right, which within moving forward I've actually put it right on the end of the sleeper which had a bit more ground on it then and was wet ... I put my foot on the sleeper ... as soon as I put my foot down it slipped forward and to the right going off the edge of the sleeper. I grabbed quickly for the right - for the rail, which in lifting my arm up I caught my elbow on the top of the rail and grabbed for the rail. My bum hit the ground and was slipping under the fence. At that point and with hitting the ground I had to let go of the top rail and landed on my elbows."[18]

17 The plaintiff also stated it had been raining lightly on and off during the day, and immediately prior to the incident, it was drizzling rain.[19] Further, the plaintiff described the relevant area where he fell as "very dark".[20]

18 There was no evidence that the driveway was slippery, even when wet. The plaintiff says that he placed his foot in a puddle of water but then "quickly picked up my foot and moved it to the right" without alleging that he slipped on the surface.

19 As to the existence of potholes in the driveway, the plaintiff's son, Trent, said he could not remember "any potholes or anything".[21] Further, Julieanne Hardinge, although attending the premises on approximately six occasions during the plaintiff's residence, said that she did not remember seeing any potholes.[22] Mr Murray Hardinge agreed that Photographs 12 and 13 (exhibit F) showed the state of the driveway at the time he had visited the loft. Although initially stating he was aware of potholes, he eventually conceded that there were "no visible potholes" in the photographs referred to.[23] However, he did state he had visited the plaintiff at the premises during the daytime and said there were a couple of small potholes not far from near the rear of the plaintiff's car.[24] He also said that there was grass in the middle of the driveway, and on each side of the driveway you could see the path of cars.[25] A next-door neighbour, Deborah Anne Noble, had lived beside the defendants for thirteen years. She agreed that she had seen tyre depressions on the driveway from time to time.[26]

20 The plaintiff said in evidence that he conducted some repair work on the driveway approximately five weeks after the incident. It was only after the work that he took the photographs shown in exhibit F. Up until that time, and indeed up until the service of the Writ, the plaintiff conceded that he had not made any complaint to the defendants about the state of the driveway.

21 Julieanne Hardinge attended the premises approximately five times in the evening after dark. On those occasions, she and the plaintiff would sit outside the front entrance to the loft and have a coffee and a cigarette.[27] She said that it was "pretty much pitch black".[28] Further, the area of the driveway where the plaintiff's car was parked, she said, was dark.[29]

22 Trent Erickson said that he had looked for lights to illuminate the entrance to the loft but could not find any.[30] He said if the blinds were open, the light from outside the loft illuminated through the glass, providing "a little bit of light";[31] however, he stated as you walked out the front door off to the left, "it was just black".[32]

23 The plaintiff took no steps to illuminate the driveway at the time of the incident. Both Mr and Mrs Hardinge had used artificial light on different occasions at night. The plaintiff agreed the property in question was a semi-rural property and at no time did he feel the need to use a torch.[33] Further, he accepted that he could make his way around the driveway without a torch and that he was aware that there were dark areas in the driveway.[34] He further agreed that he had a lot of opportunities to observe the driveway in a general sense before the fall on 29 June 2010.[35]

24 The plaintiff was aware that it had been raining and that the whole driveway was wet and that it was quite likely that the puddle had only been there for a short period of time.[36]

25 In terms of accessibility when using the driveway, the first defendant said that the driveway was approximately 4 metres wide.[37] He said that the pergola adjacent to the front entrance of the loft was basically for shelter for persons sitting thereunder.[38] He agreed that if a car was parked under the pergola, there would only be a narrow path to the front entrance of the loft on either side of the vehicle.[39] It is clear that the plaintiff was in the best position to assess where to park his car in relation to the weather conditions prevailing at the time and whether or not he had reasonable access on either side.

26 Section 48(1) of the Wrongs Act 1958 provides:

"(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.

(3) For the purposes of subsection (1)(b) -

(a) insignificant risks include, but are not limited to, risks that are far-fetched or fanciful; and

(b) risks that are not insignificant are all risks other than insignificant risks and include, but are not limited to, significant risks."

27 Accordingly, it is necessary to identify the risk of harm against which the plaintiff alleges the defendants were negligent for failing to take such precautions.[40]

28 It seems to me that the risk to be assessed by a reasonable defendant would have to involve an assessment, at the time of the commencement of the plaintiff's residence, the probability of the following risk eventuating:

after a period of rain there may be an accumulation of water in a depression such as a wheel mark from a motorcar or even a water caused erosion, which although not creating a slipping hazard per se, may result in an entrant to the premises placing his or her foot in a water-filled depression and then stepping sideways onto a sleeper which marked the boundary of the driveway, and which may be, itself, slippery when wet, in circumstances where the entrant has chosen not to utilise any artificial light source.

29 Counsel for the plaintiff has submitted that the risk of harm in the present case "was the risk of a person, such as the plaintiff, walking over the driveway at night and stumbling or falling because of the state of the surface of the driveway in complete darkness". In my view, this casts the risk of harm in too broad a fashion, as was similarly considered by Gummow J in Dederer when assessing the relevant risk of a fourteen-year-old jumping off a bridge into shallow water, suffering serious injury.[41]

30 In any event, even if the risk is as broad as postulated by plaintiff's counsel, I consider that the probability of the risk materialising was so low that a reasonable occupier would not be required to take any further steps than those taken by the first defendant, which was to place a sensor light in an obvious position with an electrical power source readily accessible.

31 Indeed, in a rural area, where the entrant was either a tenant or an invitee, the state of the driveway was not such, in my view, that any permanent light source was required to be provided by the occupier.

32 There were no witnesses to the alleged incident and the circumstances whereby:

(a) the plaintiff has allegedly conducted some repairs to the driveway some weeks after his fall; and

(b) then failing to make any complaint to the defendants prior to service of the Writ; and

(c) taken photographs of the driveway after he has repaired same and not beforehand

made me look carefully at the plaintiff's evidence.

33 Further, the fact that the plaintiff "repaired" the driveway before taking photographs leaves me in a position where I am not satisfied as to the depth and length of any "hole" that may have been associated with the injury in a temporal sense.

34 In addition, the uncontradicted evidence that the overall state of the premises was in a very tidy condition and the lack of any expert evidence as to an alternative driveway surface assists the defendants, in my view, in asserting that all reasonable steps had been taken prospectively with respect to the state of the driveway.

35 In any event, I would consider than an occupier looking prospectively at any risk identifiable with respect to the driveway would expect that the plaintiff would either provide his own artificial light source or connect the sensor light to the electricity supply, both of which were readily ascertainable.

36 In all the circumstances, I find that the defendants are not in breach of their duty of care to the plaintiff.

37 In case I am held to be wrong with respect to breach of duty in this matter, I would also find that the plaintiff has not satisfied causation to the requisite standard.

38 Sections 51 and 52 of the Wrongs Act 1958 deal with the question of causation. These sections provide:

"51 General principles

(1) A determination that negligence caused particular harm comprises the following elements -

(a) that the negligence was a necessary condition of the occurrence of the harm ( factual causation ); and

(b) that it is appropriate for the scope of the negligent person'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 negligence 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) whether or not and why responsibility for the harm should be imposed on the negligent party.

(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 negligent person had not been negligent, the matter is to be determined subjectively in the light of all relevant circumstances.

(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

In determining liability for negligence, the plaintiff always bears the burden of proving, on the balance of probabilities, any fact relevant to the issue of causation."

39 In Adeels Palace Pty Ltd v Moubarak,[42] the High Court had to consider the operation of s5D of the Civil Liability Act 2002 (NSW). Section 5D of the Civil Liability Act is the New South Wales equivalent of s51 of the Wrongs Act. The Court said:

"[42] Section 5D(1) of that Act divides the determination of whether negligence caused particular harm into two elements: factual causation and scope of liability.

[43] 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 Stramare (E & M H) Pty Ltd)[43], to be the common law's approach to causation. The references[44] in March v Stramare 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."

40 In the circumstances of this case, even if the first defendant should have told the plaintiff that he had disconnected the sensor light, the fact that the plaintiff chose not to utilise a mobile light source, gravitates against the probability that he would have plugged the sensor light in in any event. Further, I note that he did not give evidence that had he been told the relevant information, he would have utilised the sensor. Thus I am unable to find that the "but for" test in this regard is satisfied.

41 I will hear the parties as to any consequential orders.

[1] Section 14(b)(3) Wrongs Act 1958

[2] Transcript ("T") 3-22, Line ("L") 13-31

[40] Roads and Traffic Authority of New South Wales v Dederer & Anor [2007] HCA 42 at paragraph [59]

[41] Dederer (ibid) at paragraphs 59-62

[42] (2009) 239 CLR 420; [2009] HCA 48

[43] [1991] HCA 12; (1991) 171 CLR 506 at 515; [1991] HCA 12

[44] [1991] HCA 12; (1991) 171 CLR 506 at 515 quoting from Fitzgerald v Penn [1954] HCA 74; (1954) 91 CLR 268 at 277; [1954] HCA 74