Contributory negligence.
117 Contributory negligence at common law is the failure of the plaintiff, in the circumstances, to take reasonable care for his own safety (Caterson v Commissioner for Railways NSW [1973] HCA 12; (1973) 128 CLR 99). The onus of proving contributory negligence is upon the defendant. Where the damage suffered by the plaintiff is the result, partly of his own failure to take reasonable care (contributory negligence) and partly of the wrong of another person, the damages recoverable are reduced to the extent the Court thinks it just and equitable, having regard to the plaintiff's share in the responsibility for that damage (s 9(1) Law Reform (Miscellaneous Provisions) Act 1965).
118 In Wynbergen v Hoyts Corporation Pty Ltd [1997] HCA 52; (1997) 149 ALR 25, in the context of the reduction of damages arising under the Law Reform Act, Hayne J adopted the approach described in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529. In that case, the following was said: (at 532)
"The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man ( Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42-49 and Broadhurst v Millman [1976] VR 208 at 219, and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance."
119 Here the plaintiff had consumed a significant amount of alcohol. According to Professor Starmer he would, as an habitual drinker, have developed significant tolerance. Nonetheless, he would still have been "grossly intoxicated" (Ex 1, report 18.10.09, p 4), although that opinion was expressed on an assumption as to Mr Freudenstein's weight (87 kg), which was less than his actual weight (100 kg). Professor Starmer added that his state of intoxication may explain why Mr Freudenstein chose to inspect renovations in the dark at about 1.30 am (Ex 1, report 18.10.09, p 4).
120 However, Mr Freudenstein's impaired judgment and reduced appreciation of danger as a consequence of alcohol, are not matters which ameliorate his culpability when assessing contributory negligence. The test is objective (Joslyn v Berryman & Anor [2003] HCA 34; (2003) 214 CLR 552).
121 In forming a view as to what is "just and equitable", It is instructive to look at Joslyn v Berryman and the determination ultimately made. A passenger in a car (Berryman) sued the driver (Joslyn) as a result of a motor vehicle accident. The passenger, who was severely intoxicated, had originally been driving the car. However, he exchanged places with the driver, who was also intoxicated. He allowed her to drive and soon after the car overturned. He was severely injured.
122 The trial Judge found the passenger guilty of contributory negligence and reduced the damages by 25%. The Court of Appeal determined that the perception of the passenger, at the time of the changeover, was so impaired that he would not have known the level of impairment of the driver. The Court therefore overturned the finding of contributory negligence.
123 The High Court allowed an appeal, and remitted the matter back to the Court of Appeal for reassessment on the issue of contributory negligence. McHugh J identified the test in assessing contributory negligence in these words: (at 564)
"[32] The test of contributory negligence is an objective one. Contributory negligence, like negligence, 'eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question'."
124 The rule has one exception. In respect of children the standard varies depending upon the age of the child. There were cases which supported a similar concession in the context of old age. An elderly pedestrian, for instance, may not be capable of moving as fast as someone who is younger. However, the rule makes no concessions for other idiosyncrasies, even though they may be material to the accident, such as impaired hearing or sight (at 565). The test to be applied, in determining whether there was contributory negligence in circumstances of intoxication, was formulated by McHugh J in these words: (at 566/7)
"[38] Hence, the issue is not whether a reasonable person in the intoxicated passenger's condition - if there could be such a person - would realise the risk of injury in accepting the lift. It is whether an ordinary reasonable person - a sober person - would have foreseen that accepting a lift from the intoxicated driver was exposing him or her to a risk of injury by reason of the driver's intoxication. If a reasonable person would know that he or she was exposed to a risk of injury in accepting a lift from an intoxicated driver, an intoxicated passenger who is sober enough to enter the car voluntarily is guilty of contributory negligence. The relevant conduct is accepting a lift from a person whose driving capacity is known, or could reasonably be found, to be impaired by reason of intoxication."
125 His Honour then identified the matters in that case which would cause an ordinary reasonable person to infer a lack of care on the part of the passenger, Mr Berryman. The facts were as follows: (at 567)
"[40] ... First Ms Joslyn had lost her driver's licence and probably had not driven for some time. Secondly, she was insisting on driving a vehicle whose speedometer did not work and which had a tendency to roll over and she had had no experience of driving the vehicle. Thirdly, Ms Joslyn had been drinking for about the same length of time as Mr Berryman who was unfit to drive. Fourthly, the amount of alcohol consumed by Ms Joslyn, the time that had elapsed since she stopped drinking and her lack of sleep confirmed that she also was probably unfit to drive. Mr Berryman's inability to keep awake and his agreement to stop driving increased the probability that her drinking and lack of sleep made her unfit to drive."
126 Other members of the Court, with some variations, took a similar view. When the matter was remitted to the Court of Appeal (Berryman v Joslyn [2004] NSWCA 121), the Court (Mason P, Beazley and Tobias JJA) adopted the matters suggesting culpability on the part of the passenger as set out in McHugh J's judgment. They assessed the plaintiff's culpability at 60%. The verdict was reduced accordingly.
127 Joslyn v Berryman has since been applied a number of times (The Nominal Defendant v Lane [2004] NSWCA 405; Mackenzie v The Nominal Defendant [2005] NSWCA 180; Dos Santos v C Morris Painting & Decorating & Anor [2006] NSWCA 54). One small inroad into the objective test was made by Bell J in Russell v Rail Infrastructure Corporation [2007] NSWSC 402, where the plaintiff had a mild intellectual disability. Her Honour determined that the standard to be applied was objective. However, it was the standard expected of a reasonable adult with a mild degree of intellectual handicap.
128 I should therefore apply an objective standard, viewing Mr Freudenstein's actions from the viewpoint of a reasonable (and sober) person. That approach, incidentally, is now reflected in the Civil Liability Act 2002, and is consistent with the philosophy of personal responsibility stated by Ipp AJA in South Tweed Heads Rugby League Football Club Ltd v Cole (supra) in these words: (at 144)
"[182] The recognition that, generally speaking, adult persons must assume responsibility for their own actions while intoxicated (provided that they are sufficiently in control of themselves to be able to exercise their will and to know what they are doing) underlies the treatment of such actions by the law and principles of equity relating to contract and the criminal law. There is no reason why the law relating to negligence should not adopt a similar approach."
129 Nonetheless, there is perhaps some tension between such an approach and the duty of the hotel, which is informed by the nature of the entrants of which it has knowledge. Here, the hotel was aware that those who may be exposed to danger may be affected by alcohol. Yet a more exacting standard, that of a sober person, is expected of the persons put at risk.
130 The parties made short submissions on the question of contributory negligence, which it is convenient reproduce. The plaintiff said this: (PS p 5)
"[41] The Defendants allege and particularise contributory negligence in their Amended Defence.
[42] The Plaintiff asserted ' There was nothing stopping me from walking out there so I walked out there to have a look '. The obvious inference from this is that had there been anything stopping him either by way of signage or barricade he would not have done so. It was not put to the Plaintiff that his senses were impaired, that he was disorientated, unbalanced, uncoordinated or that his cognition was impaired on the evening in question. The evidence is to the contrary both from the Plaintiff and Mr Cross. The Second Defendant's evidence, as discussed above, is corroborative.
[43] The fact is that although it was the Defendants' view that the 'fire door' was prohibited this fact was not brought to the Plaintiff's attention. It was never put to him that he knew he was entering a 'prohibited' door or that indeed he was travelling in a 'prohibited area'. If the door was not a proper, accepted or allowed means of egress from the bar then he should not have been allowed to exit from it at all. There was no evidence, nor was it ever put that the Plaintiff had the 'full and proper knowledge' and or the cognizance alleged.
[44] It is submitted, in all the circumstances, that it would not be appropriate to assess contributory negligence in this case beyond the range of 10-15%."
131 The defendants made the following submissions: (p 14)
"[41] It follows from what is said above, that even if the plaintiff were to succeed, then contributory negligence must play a very significant part. The defendant submits that contributory negligence would be assessed at 100% or very close to it. In any event, the defendant submits that there should be a verdict for the defendant."
132 There can be no question that, by an objective measure, the plaintiff failed to take reasonable care for his own safety. His actions involved:
First, stepping up to the door frame, 500 mm.
Secondly, stepping down onto what he knew was a roof.
Thirdly, doing so in the dark, when it was very black, where he could see black plastic which appeared to be wet and therefore potentially slippery.
Fourthly, in order to get a better view of the room downstairs, moving away from the wall across the roof to a point where he fell off the roof.
What is "just and equitable"?
133 What, then, is just and equitable as between the parties, having regard to the "assessed culpability and causal potency" of each (per Giles JA in Mackenzie v The Nominal Defendant (supra) [127])? There were a number of discreet breaches by the defendants, where there ought to have been successive barriers, safeguarding the plaintiff from risk of injury arising from the building work:
First, in circumstances where the fire door could not be locked, the failure to erect a simple barrier or tape outside the fire door in the upstairs bar.
Secondly, the further failure to close the door and ensure that it remained closed.
Thirdly, the failure to place a sign on the fire door saying: "No Access - Construction Zone".
Fourthly, the failure to cover the hole made in the external wall leading to the roof with a plywood barrier, properly secured by props attached to the roof.
134 The builder acknowledged that such circumstances would amount to "a woeful breakdown in the system of safety on the site" (supra [65]). It is material that the first defendant was operating a hotel, serving alcohol late at night. Such breaches put all patrons at risk, including some who (to the hotel's knowledge) may be affected (to a greater or lesser degree) by alcohol and their judgment impaired.
135 Turning to the plaintiff, significant culpability must attach to his actions. Admittedly he did not put others at risk, but he did put himself at risk. I accept that his action in stepping out onto the roof was spontaneous, in circumstances where his curiosity had been aroused. I also accept that, but for the defendants' negligence, which permitted access through the fire door to the corridor and then to the roof, the accident almost certainly would not have happened. The plaintiff's actions, to this extent, were opportunistic and probably impulsive. Unlike the plaintiff in Joslyn v Berryman (supra [120]), the situation did not evolve over a number of hours, with many opportunities to think better of what he was doing. I accept that it probably happened fairly quickly.
136 Having said that, there was not simply one foolish action by the plaintiff, but a succession of such actions where he moved from the corridor, to the door frame, to the roof, and then beyond. He obviously did not know the precise dimensions of the roof. Based upon a vague appreciation of its size, he clearly misjudged. However, he knew he was on the roof. Adopting the objective measure, his actions were clearly dangerous because of the risk of falling.
137 In my view, it is just and equitable to share responsibility between the plaintiff and the defendants equally. Mr Freudenstein's damages should be reduced by 50% for contributory negligence.
138 Let me then turn to the question of damages.