Harrington Estates (NSW) Pty Ltd t/as Harrington Grove Country Club v Turner

Court of Appeal (NSW)|2016-09-23|Before: Gleeson JA, Leeming JA, Harrison J

Solicitors: McCabes Lawyers (Harrington Estates (NSW) Pty Ltd) Brydens Compensation Lawyers (Glenn Turner) Colin Biggers & Paisley (Hassell Ltd) File Number(s): 2015/342018 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil Date of Decision: 06 November 2016 Before: Hatzistergos DCJ File Number(s): 2013/112403

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment

GLEESON JA: I agree with Leeming JA.
LEEMING JA: Mr Glenn Turner attended the wedding of his daughter at premises occupied by the appellant, which trades as Harrington Grove Country Club, on 19 November 2011. At about 10:30 in the evening, Mr Turner carried the wedding cake, or what remained of it, to the boot of his car, parked in one of the car parks on the Club's premises. At the rear of the parking bay was a concrete kerb. Immediately beyond the kerb was a garden bed. Mr Turner's car was parked rear to the kerb. The primary judge accepted Mr Turner's evidence that he noticed the garden to the rear of his car, walked to the rear of his car, opened the boot electronically, and then walked "in a crab-like fashion" along the kerb in order to place the wedding cake in the boot. Then, as he closed the boot of the car, he stepped back into the garden bed. He fell into the garden bed which, although it contained plants growing to approximately the level of the car park, was quite deep. An ambulance was called, which arrived at around 10:45pm, but Mr Turner was driven home by his wife. Even so, the primary judge found that Mr Turner suffered serious injury by reason of his fall. There is no challenge to that aspect of his Honour's decision, and it is unnecessary to summarise his injuries or the calculation of damages.
There was a large factual dispute as to the depth of the sunken garden bed in November 2011. The primary judge resolved this at [90]-[97] of his reasons, finding that the drop ranged between 720 and 810mm from the bottom of the garden bed to the top of the kerb. Again, that finding was not challenged on appeal.
Mr Turner and other witnesses called in his case said that it was quite dark, although there was ambient light. Mr Turner accepted in cross-examination that he was not familiar with how deep the garden bed was, that he was "prepared to step back into it without knowing that fact" and that he did not look behind himself as he stepped back.

Procedural history

Mr Turner brought proceedings in the District Court of New South Wales against the Club and the architect, Hassell Ltd, which had been retained to provide architectural and landscape design services for the project known as the Harrington Grove Country Club. In fact Hassell was retained by a company which had been the owner of the land, rather than by the Club; it was not suggested that anything presently relevant turns on that, save that it was a further response to the Club's "delegation" point (as to which see below). Each defendant filed a claim seeking statutory contribution against the other, contingently, in the event that both were held to be liable.
Mr Turner's claim against the Club included, as particulars of negligence, the Club's failure to fence, barricade or otherwise enclose the garden bed so that it did not pose a risk of harm, and the failure to have any or any sufficient lighting in the area. His claim against Hassell included "designing a car park which included a sunken garden bed", "designing a car park without making provision for any railing, fencing or safety barriers along the edge of the garden bed" and "failure to design a car park which was reasonably safe for its intended use". In relation to the claims in negligence against both defendants, Mr Turner relied upon the fact that after his accident, a balustrade was installed protecting pedestrians from falling into the garden bed. His pleading alleged that the construction of the balustrade was both an admission of negligence and a reasonable precaution which ought to have been employed by both defendants at the time of construction of the premises.
The pleading made no mention at all of the Civil Liability Act 2002 (NSW). That Act provided the necessary framework for the elements of Mr Turner's claim, as well as precluding his reliance upon the balustrade which was constructed after the event: s 5C(c). Notwithstanding the deficiencies in the pleading, the primary judge correctly approached the litigation by applying the provisions of that statute (including s 5C(c): see at [127]).
The matter came to trial and was heard over four days in July 2015. The plaintiff, and some members of the wedding party present at the scene at the time of his injury, gave evidence of his fall. There were no lay witnesses called by either the Club or Hassell. Hassell called an architect, Mr Mark Bullen, whose report was to the effect that Hassell, in preparing design documentation setting the levels of the garden beds within the car park, and not installing a balustrade around its edge, had acted entirely appropriately, principally on the basis that the Building Code of Australia only required the installation of a balustrade when there was a change of level exceeding 1m, and because the change of level was reasonably detectable at day and night by reason of the lighting of the car park.
During the course of the trial, agreement was reached between the defendants not to advance a positive case against each other, and for the deferred adjudication of the cross-claims seeking statutory contribution. That agreement was reflected in orders made at the conclusion of the trial staying the cross-claims until delivery of judgment, and directing that the parties to the cross-claims exchange written submissions, if the matter arose, within 14 days of delivery of the judgment.
On 6 November 2015, the primary judge ordered a "verdict for the plaintiff" against the Club in the sum of $216,539, and a "verdict" for Hassell. Those formulations are to be understood as judgments in favour of Mr Turner and Hassell respectively: see Keramianakis v Regional Publishers Pty Ltd (2009) 237 CLR 268; [2009] HCA 18 at [38]-[40] and NH v Director of Public Prosecutions [2016] HCA 33; 90 ALJR 978 at [80]. On 4 December 2015, his Honour made a Sanderson order that the Club pay the costs of Mr Turner and Hassell, and (seemingly by consent) dismissed both cross-claims with no orders as to costs. He also granted a stay of the judgment in light of this appeal.

The reasons of the primary judge

The reasons of the primary judge are elaborate. They deal with a number of matters which do not arise, or only scarcely arise, on appeal (including damages, the depth of the garden bed, and the question of lighting). Although I respectfully disagree with some aspects of the judgment, the careful findings of fact have assisted the resolution of this dispute between the parties. They have in turn enabled me to be much more concise.
The primary judge addressed Mr Turner's claim against Hassell first. His Honour found at [89] that: "Critically, however, there was no evidence to suggest that, in the absence of the height and density of plantings and foliage at the time of the accident, the Plaintiff would not have been in a position to ascertain the depth of the garden bed from general observation. Nevertheless I accept that, at the time of the accident, the lighting was sufficient to enable observation of features of the car park including the presence of the foliage and its height above the garden bed but not the depth of the garden bed."
His Honour accepted that Hassell knew of the presence of the sunken garden bed and its depth, found that it was "certainly" aware of some plants which had been planted in the garden bed, but said that "there is no evidence that it knew of the precise plantings and foliage which were in that area at the time of the accident": [122]. His Honour added: "Whether [Hassell] could have envisaged that the plantings and foliage could have grown and obscured the depth of the area in question was a matter on which the Plaintiff presented no evidence notwithstanding the Defence referred to earlier."
His Honour then said at [124]: "The Plaintiff has not demonstrated that it would not have been observable with the lighting that had been designed nor what was in place at the time of the accident if the foliage had not been left to the height and density which [the Club] had left it to grow. To the contrary, at least at the time of the accident the evidence suggests that visibility was such as would have revealed the drop in the absence of the planting and foliage that was in place."
Having rejected a submission based on Jones v Dunkel (1959) 101 CLR 298, the primary judge concluded that: "the circumstances are not such that a reasonable person in [Hassell's] position would have taken precautions of erecting a balustrade. The Plaintiff did not identify any other warning that should have been provided. Nor did the Plaintiff point to any evidence that the location or design of the parking area where the Plaintiff occasioned his injury was deficient beyond referring to the need to install a balustrade": at [128].
His Honour added that in any event, he would not have found that any breach by Hassell had caused Mr Turner's loss under s 5D of the Civil Liability Act: at [130]. His Honour said that there was no evidence that the design caused the injury, that the garden bed had a depth which complied with the Building Code of Australia, and that: "Whilst the Plaintiff could not have observed its depth in the condition that it was in, there was no evidence to suggest that, absent the height and density of foliage, he could not have done so let alone in the lighting designed under the responsibility of [Hassell]. As the Plaintiff put his case, injury was brought about by the obscuring of the fall in levels which led the Plaintiff to assume that he could step back in the garden bed when in fact it was not safe to do so": at [130].
In contrast, the primary judge found in relation to the Club that the risk of injury was foreseeable and not insignificant, the cost of preventative action was a balustrade which was ultimately installed for the sum of $4,760, and that the Club's failure to install a balustrade caused Mr Turner's injury in accordance with s 5D. His Honour rejected a defence that the Club was entitled to rely upon Hassell's expertise, in light of what was said in Scott v Davis (2000) 204 CLR 333; [2000] HCA 52 at [248] and Indigo Mist Pty Ltd v Palmer [2012] NSWCA 239 at [87]-[89].
His Honour applied s 5R of the Civil Liability Act and found that Mr Turner was guilty of contributory negligence. His Honour's reasoning was at [157]: "I do not accept that the Plaintiff's actions in stepping back into the garden bed when he was unaware of its depth were mere inadvertence as his Counsel claimed. There is a clear difference in walking along a level surface area and stepping onto a kerb and into a garden bed. This was not a path for pedestrian use. The presence of the kerb and its colouring as well as the vegetation identified it as such. Even accepting the Plaintiff's perceived need to step back in order to close the boot of his car, he failed to take precautions to satisfy himself that it was safe to do so. There was nothing to suggest that this was the only option available to him in the circumstances. Accordingly bearing in mind the risk of harm I assess contributory negligence at 15%."

The issues on appeal

The Club appealed. Its appeal is as of right, having regard to the size of the judgment. It ultimately pressed 12 grounds of appeal extending to every element of its liability save for the amount of damages. However, the Club's oral submissions were much narrower. The Club's oral submissions focussed attention on what it said was the incongruity in the finding of its negligence and the dismissal of the claim against Hassell, and sought a redetermination of contributory negligence.
Mr Turner cross-appealed. Grounds 1-5 were directed to errors in the failure to find Hassell liable in negligence. Ground 6 maintained that there was no failure to take reasonable care and that Mr Turner's conduct was, at worst, mere inadvertence, which should have led to a finding of no contributory negligence.
Hassell made detailed submissions responding to the submissions advanced against it by the Club and Mr Turner, to which it will be necessary to respond in detail. Speaking generally, those submissions maintained that the other parties should be precluded from running a case on appeal which departed from what had occurred at trial, that Hassell was entitled to rely on other contractors which had done work on the site, and on its expert who maintained the view that so long as the drop from the kerb to the bottom of the garden bed was readily visible, it was not necessary to install a balustrade.
Hassell also filed a notice of contention, one ground of which was pressed. That ground was that even if, contrary to the findings of the primary judge at [122], Hassell should have envisaged that the plantings and foliage could grow and obscure the depth of the garden bed, in circumstances where the Building Code of Australia did not require a handrail for a drop of less than 1m, and the plaintiff had led no expert evidence that in failing to design a balustrade there was a failure to act with reasonable care and skill, the primary judge was nonetheless correct to find that a reasonable person in the position of Hassell would not have designed a balustrade.
Hassell also ultimately sought, and obtained, leave to file out of time a cross-appeal on the question of statutory contribution, in the event that it was held to be a tortfeasor and the Club's appeal against its own liability was unsuccessful.
Both the Club and Hassell made submissions at the conclusion of the appeal about statutory contribution, in the event that both were found to be tortfeasors.

Contemporaneous documents

The part of the Club's grounds containing the relevant car park had been constructed in around 2009, some years prior to the trial. Neither the Club nor Hassell called any witnesses to explain the process of design and construction and subsequent maintenance of the garden bed adjoining the car park. This Court is in substantially the same position as the primary judge in relation to making findings from the contemporaneous documents.
Hassell admitted that it was retained to provide and did provide architectural, interior and landscape design services for the project. Hassell provided an original fee proposal in February 2006, which was revised in September 2006. The latter referred to a presentation Hassell had made to the Board on 27 September 2006, and noted that the "overall budget currently sits at around $6.71m for architectural works and $4.13m for landscape works". By its revised proposal, Hassell proposed to provide landscape architectural services comprising "Sketch Design", "Design Development", "Documentation & Issue to Council", "Tender Services", "Contract Quality Control" and "Contract Superintendent Role" for a fee of $313,880 exclusive of GST. The scope of works was defined by reference to the original February proposal, and that proposal expressly included "landscape to the car park" and "lighting and accent lighting". The car park and adjoining garden bed was plainly a small component of a relatively large project.
A plan which was tendered at trial and which had been drafted by Hassell, titled "Walls 49 and 50 Detail Plan", indicates that the design had included a garden bed immediately behind the seven parking spaces, separating them from an "acoustic fence" which in turn surrounded the "booster pump enclosure". Walls 49 and 50 are in the immediate vicinity of the car parking spaces.
The plan also showed that adjoining the parking space used by Mr Turner was space for bicycle parking, and immediately adjoining that was a ramp for vehicles. The ramp rose from RL94.25 to RL94.892 over the distance of approximately the length of the car parking space. Separating the ramp from the surface of the bicycle parking area and shown on the plan was a balustrade or fence, attached to which was a handrail.
The plan indicated that it was revision "K" dated 14 October 2008, and that earlier drafts had issued going back to a "tender addendum" in March 2007. The earlier drafts had repeatedly been reissued with "revised levels" (revisions C, D, E, F, G and H were so described).
An interim occupation certificate was issued in March 2009. It seems likely that the levels shown on the plan reflected the works as constructed. Certainly, and exercising caution in interpreting the photographs taken some three years later, after Mr Turner's accident, the rising vehicle ramp, separated from the bicycle parking area by a fence of a sturdy metal construction with a handrail, is consistent with what is shown on the October 2008 plan. It is also clear from the photographs that the fence separating the ramp from the bicycle parking area had been installed prior to Mr Turner's accident (the photographs also show the red and white marking tape which had been erected at the rear of the parking spaces to prevent similar accidents).
A "site drainage plan car park" confirmed that the initial designs by Brown Consulting had a "KO" or "kerb only" separating the rear of the parking spaces from the planter bed, in contrast to the fence separating the edge of the ramp from the bicycle parking area.
A lengthy document, being an inspection report by Hassell bearing a date 21 May 2010, identified a large number of defects and stated that it was "our expectation that all items listed will be rectified and or made good in accordance with the relevant specification and Australian standards". The timing of the reporting of the defects in the document is a little unclear (on one reading, some of the defects may have been identified and resolved at an earlier time); nothing turns on this. One section dealt with "gardens, trees and soft works", and recorded that a number of the plants had been burnt and had died. The burnt plants included not only shrubs but also trees. Item 9.1.6 was in the following terms: "Finish level of gardens are not consistent and are low in the following areas: • Garden between pool and lawn area. • Ivy planting bed along entry drive. • Garden adjacent condenser farm."
It is not entirely clear where the "condenser farm" is, although one candidate is the utility area adjoining the rear of the car park which was separated from it by an acoustic fence and which was described in Appendix A4 of the report of Mr Bullen (who viewed the site) as "air conditioning enclosure". It will not be necessary, in order to resolve this appeal, to determine whether the low levels in the gardens seen by Hassell more than a year after the occupation certificate issued included the 720-810mm drop to the rear of the car space used by Mr Turner, being a point which does not seem to have been raised at trial.
Hassell's May 2010 inspection report also made it plain that it was responsible for inspecting the mulching, the irrigation, and the growth of the plants on the landscape surfaces which were part of its remit. The inspection report included entries specifically relating to walls 49 and 50 and the handrail connected to the fence separating the ramp from the bicycle parking area. The document also suggests that there was to be a final inspection at some stage in the future. If that occurred, there was not (so far as I can see) any further document recording it. I proceed on the basis that Hassell's last significant involvement on the site was no later than May 2010, some 18 months before Mr Turner's accident.

The liability of Hassell

It is convenient to follow the order adopted by the primary judge and address the challenge to the findings of liability against Hassell immediately.
There was no challenge to the findings of primary fact as to when and how Mr Turner fell in November 2011, nor to the extent of his injuries. There was no challenge to the finding that there was a drop of between 720 and 810mm from the rear of the car space to the garden bed.
There was a lively debate as to whether the Club ought be permitted to advance a positive case against Hassell on appeal, in circumstances where the defendants had not at trial advanced a positive case against one another. The debate was arid (save in relation to costs) because of Mr Turner's cross-appeal, which raised substantially the same issues. As I understood the position, Hassell ultimately acknowledged as much (as was reflected in its seeking and obtaining leave to file a cross-appeal). I therefore turn to the substance of the matter.
The essential position as is relevant to this appeal was as follows.
In relation to lighting, the primary judge found that Hassell was entitled to proceed on the basis that the lighting around the car park was appropriate and sufficient to illuminate the area. I pass over the details of the evidence sustaining that conclusion.
In relation to plants, it is plain that Hassell had intended that plants would be grown in the garden bed, and that it was responsible for inspecting their mulching, irrigation and growth. The expert called by Hassell said in his report that: "Hassell as landscape architect was retained to and did prepare design documentation setting the levels of the garden beds within the car park and elsewhere at the Club, and determining the soil types, planting, minor structures such as small retaining walls, paths, fencing and furniture to external areas."
In relation to fences or balustrades, Hassell's plans had included one separating the bicycle parking area immediately adjoining the car space used by Mr Turner from the ramp, although the drop ranged from level with the road service to around 650mm above it. In contrast, there was no barrier (save for the kerb) between the surface of the car park and the garden bed to its rear, although there was a drop which the primary judge found was between 720 and 810mm.
Mr Turner accepted that because the drop was less than 1m, there was no contravention of any building code. Hassell accepted, properly, that mere compliance with building standards was relevant to, but not dispositive of, whether there had been any breach of duty: see Francis v Lewis [2003] NSWCA 152 at [42]-[43].
The primary judge was satisfied that the risk of harm was the risk of stepping into an unguarded garden bed separated from a car parking area by a small kerb with a sudden drop in level: at [53]. The primary judge applied s 5B and concluded that the risk of injury was foreseeable, that the probability of harm in circumstances where the depth of the garden bed was observable was low, although the likely seriousness of the harm was high: at [123].
The matters which were material to the primary judge's conclusion at [128] that a reasonable person in the position of Hassell would not have taken precautions were that: 1. Mr Turner had not shown that Hassell could have envisaged that the plantings and foliage could have grown so as to obscure the depth of the area: at [122]; 2. Mr Turner had not demonstrated that the drop would not have been observable with the lighting at the time, had the foliage not grown to obscure the depth: at [124]; 3. Jones v Dunkel was inapplicable, because an inference could not be drawn to fill a gap in the plaintiff's case: at [126].
I respectfully disagree. Here, although it was not shown that there had been any breach of the Building Code of Australia, the car park was in a club, which would have numerous patrons, including those who were unfamiliar with the layout of the car park, who might be attending at night, and who might have consumed alcohol. Such patrons would have occasion to go to the rear of each car space within the car park. The plants in the sunken bed behind the car park were intended by Hassell to grow. They did in fact grow. By late 2011, they had grown so much that the drop from the rear of the car park was much less visible than had been the case immediately after construction. It is plain from the inspection in May 2010 that Hassell knew of the condition of the plants. It is plain that Hassell had designed a landscape next to the rear of the car park which amounted to a sharp drop, the extent of which was apt to be obscured when the plantings became established. In those circumstances, it is not to the point that Mr Turner had failed to establish that "Hassell knew of the precise plantings and foliage" present when he fell. Nor does it assist Hassell to point to the adequacy of the ambient lighting.
The primary judge stated that Mr Turner presented no evidence on this issue. I do not regard it as necessary for the plaintiff to have done more than what had been done, namely, to demonstrate the scope of Hassell's retainer, the fact that it knew that plants had been planted in the sunken garden bed, and the fact that they had grown by the time of his injury. There was no suggestion, for example, that the Club had replanted the bed with a different species, of which Hassell was unaware.
Mr Bullen, the architect who gave expert evidence for Hassell, had said in his report that an ordinary competent architect would not have designed a balustrade around the edge of the sunken garden bed, because (a) there was no requirement in the Building Code of Australia to do so, (b) the change in the level was no more than 725mm by his measurements, and (c) the change in level was reasonably detectable by lighting and the contrast colours of the bitumen and the kerb. His cross-examination was for the most part focussed on the lighting, a topic largely outside the scope of this appeal. He said that the sunken garden bed "wasn't particularly treacherous, provided that it was - that the area was lit". He agreed that there would likely not be "enough room for someone to comfortably stand between the back of [the] vehicle and the kerb" and that it would be difficult for a user of the car park to get around to the back of a vehicle parked rear to kerb without stepping onto the kerb, because there was a "small dimension between the boot and the edge of the kerb".
But Mr Bullen's opinion is insufficient to sustain the judgment in favour of Hassell. The first two matters on which he relied are not dispositive. As for the first, it cannot as a matter of law be determinative that there was not a breach of the Building Code of Australia. As for the second, in fact, the depth was found to be between 720 and 810mm. Most importantly, to the extent that his opinion in his report, and his evidence in cross-examination, turned upon how recognisable the change in level would be to a person using the car park, it does not pay regard to the possibility that the growth of the plants in the garden bed would conceal the difference in height. To reiterate, Hassell, landscape architect, had intended that plants would grow there, and knew that they were growing, and in my opinion must be taken to have known that at some time in the future it was on the cards that they would obscure the height difference between car park and sunken garden bed.
That conclusion is strengthened by a further consideration. The contrast between the presence of the fence or balustrade separating the ramp and the bicycle parking area, and the absence of one at the rear of the car park, despite the drop being greater, is noteworthy. It is easy to see how a patron might consider that any drop at the unfenced rear of the car park would be less than the drop from the ramp to bicycle parking area. However, this was not squarely put to Mr Bullen, nor was it raised before the primary judge. The closest that the questions came to this point was that he was asked to agree, and did agree, that the visual cues to indicate where the ground was were very important. As I read the cross-examination, the "visual cues" are the markings on the surface of the parking space, rather than the absence of a balustrade at its rear in contrast with the presence of one almost immediately to the side. Accordingly I would not rely upon this consideration.
It was squarely within the pleading that a sunken garden bed adjoining the car park was a defective design. I cannot agree that the plaintiff had failed to show that Hassell should have envisaged the plants to have grown in the way that they had. Hassell was responsible for inspecting the plants and did in fact inspect the plants, and drew attention to the fact that some had not survived dry conditions. True it is that the evidence does not disclose whether the plants which had died included those in the garden bed behind the car park, but nothing turns on that gap for present purposes. What matters is that Hassell must have had actual knowledge of the plants in the garden bed, and must have been able to envisage that at some time they were apt to grow so as to conceal its true depth.
For substantially the same reasons, I also reject Hassell's notice of contention, which was directed to sustaining the primary judge's conclusion in [128] in circumstances where Hassell had complied with the Building Code of Australia and Mr Turner had not led any expert evidence that in failing to install a balustrade, there was a failure to act with reasonable care and skill. Compliance with the Building Code of Australia cannot be determinative, and I do not regard this to be a matter which turns on expert evidence. In Neill v NSW Fresh Foods and Ice Pty Ltd (1963) 108 CLR 362 at 368 Taylor and Owen JJ said: "[I]n many cases no more than common knowledge, or perhaps common sense, is necessary to enable one to perceive the existence of a real risk of injury and to permit one to say what reasonable and appropriate precautions might appropriately be taken to avoid it."
The same point was made in this Court in Wilkinson v Law Courts Ltd [2001] NSWCA 196 at [32] and Indigo Mist Pty Ltd v Palmer at [6] and [84]-[85].
I also respectfully differ from the primary judge's finding of no causation. His Honour found that the failure by the Club to install a balustrade at the rear of the car park caused Mr Turner's injury. That finding cannot be reconciled with a conclusion that a failure by Hassell to put in place a balustrade did not cause Mr Turner's injury. It may be that this has come about because of a focus at trial on Mr Turner's case based on lighting, but the case as particularised extended to "designing a car park without making provision for any railing, fencing or safety barrier along the edge of the sunken garden bed".
It follows that I would uphold Mr Turner's cross-appeal against Hassell.

Liability of the Club

The Club's written submissions ranged discursively over all elements of liability (save for quantum). It had the opportunity to amplify any aspect of this orally, but chose not to do so. I do not think it is appropriate to deal with each and every written submission, none of which was given emphasis when the appeal was heard. Instead, I will address the principal submissions, and do so concisely.
The Club asserted in writing that the sole cause of Mr Turner's injury was his failure to keep a reasonable look out for his own safety, and that for that reason no duty should have been found to be owed to him by it. True it is that an occupier's duty is delimited by the expectation that users will exercise reasonable care for their own safety: see (for example) Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [159]. However, the Club's submission must be rejected, once it is appreciated that the true depth of the sunken garden bed was concealed by the plantings in it.
The Club also challenged in writing, but not orally, the findings that the risk of harm was known or ought to have been known by it and was therefore foreseeable, and that it was not insignificant. But the submission did no more than state that the work had been carried out in accordance with the experts retained by it. That is no answer to the risk presented by the drop which was concealed by the vegetation.
The Club also challenged the finding of breach. It asked, rhetorically, why would the Club, not on notice of any problem, consider making any alterations to the area that it had paid experts to design and construct on its behalf? The answer is that it should have been known to it, as it occupied the site and maintained the car park and garden bed, that there was a sharp drop greater than the drop close by between the bicycle storage area and the ramp. The Club also said that it had delegated its duty of care to the architect. Again, this was not elaborated. The submission should be rejected for the reasons given by Hoeben CJ at CL in Indigo Mist Pty Ltd v Palmer at [86]-[89], which was the approach taken by the primary judge. As Hoeben CJ at CL there said: "The content of the duty owed by the occupiers was not only to provide safe premises, but to exercise reasonable care to conduct the hotel premises so as to avoid exposing patrons to a foreseeable risk of harm. … Once they accepted the design of the stairs, they had to consider for themselves what potential hazards arose therefrom. Given the nature of the premises, they had to determine for themselves whether a foreseeable risk of injury existed in relation to the stairs, and if so, what response they should make to it on a day-to-day basis": Indigo Mist at [88]-[89].
It is not necessary to address the further obstacle faced by these submissions, namely, that the Club did not itself retain Hassell.
Finally, the Club challenged, but again without any oral elaboration, causation, on the basis that the findings of the trial judge were inconsistent. There is force in the submission of inconsistency. But its resolution is that the both of the breaches by the Club and Hassell caused Mr Turner's injury.

Contributory negligence

The Club submitted that contributory negligence should have been in the order of 50%, rather than the 15% determined by the primary judge, on the basis that Mr Turner's failure was at least equal to any negligence on the part of the Club. Hassell submitted that his Honour's finding was open and should not be interfered with on appeal. Mr Turner submitted that this was a case of mere inadvertence and that there was no failure to take reasonable care.
The primary judge applied s 5R and the principles stated in Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 and what had been said in Verryt v Schoupp [2015] NSWCA 128 at [20] as to the risk of harm and the precautions that a reasonable person in the claimant's position would take against that risk. His Honour rejected Mr Turner's submission that his actions were mere inadvertence, because there was "a clear difference in walking along a level surface area and stepping onto a kerb and into a garden bed". His Honour said that it was plain that this was not a path for pedestrian use, and concluded that Mr Turner had failed to take precautions to determine that it was safe for him to step backwards: at [157].
It was not submitted that there was any error by the primary judge in the formulation of legal principle. Nor has any error been shown in its application. It was amply open to conclude that Mr Turner had failed to take reasonable precautions before stepping backwards into the garden bed. It was also open to his Honour to conclude that Mr Turner's failure was of relatively minor significance, in contrast with the design and occupation of premises with a sharp fall behind the car park.
No basis has been shown to interfere with the finding of contributory negligence. As was said in Nominal Defendant v Dowedeit [2016] NSWCA 332 at [132], referring to Podrebersek, "It is well-established that the apportionment decision of the trial judge is 'not lightly reviewed'".

Contribution between the Club and Hassell

This issue arose for the first time in this Court, because by agreement the defendants' cross-claims were deferred by the primary judge and dismissed, seemingly by consent. In this Court, the Club and Hassell both embraced the proposition that, if statutory contribution between them arose, this Court should deal with the matter, rather than there be a remitter. Neither took the point that the cross-claims seeking statutory contribution had been dismissed consensually, rather than preserved against the possibility that both might be found to be joint tortfeasors.
The Club submitted that Hassell, with its specialist training and knowledge, should bear a greater proportion of the liability than the Club. Hassell pointed to the density and the thickness of the foliage, something which was under the entire control of the club, and the absence of any involvement by it after May 2010. It added that the Club was operating as a commercial premises for profit, in circumstances where people would be visiting it at night for functions, such that it ought to bear the primary responsibility.
The fact that the Club would operate at night, and would have patrons which would use the car park and be exposed to the fall is a matter which is neutral on the issue of statutory contribution. It was known to the Club, but it was also a matter which the landscape architect which was retained should have borne in mind when designing the car park.
The matters which are relevant to statutory contribution were that the Club was in actual occupation, was responsible for maintaining the gardens, and should have known exactly the extent to which the fall in level was or was not obvious to its patrons. Nor do I consider that this is a case where the specialist training of Hassell plays much of a role; the risk is not one which ought to have been perceived only by a trained architect.
The responsibility of the Club is appreciably greater than that of Hassell. I put to one side the matters which, although I have mentioned them above, were not established or else were outside the case presented at trial (namely, whether the garden bed into which Mr Turner fell was one which Hassell had inspected in May 2010 and regarded as low, and the design which featured a balustrade separating the ramp from the bicycle parking area, but none behind the parking spaces). On the one hand, Hassell had designed a landscape at the rear of the car parking space which was apt to conceal, when the vegetation became established, the depth of the drop. On the other hand, the Club occupied the site and maintained the gardens and had actual notice of when and to what extent the drop was obscured by the vegetation.
I would allocate contribution in the proportions 75% in respect of the Club, 25% in respect of Hassell.

Orders

Accordingly, I propose that Mr Turner's cross-appeal and the Club's appeal each be allowed in part. The orders made by the primary judge on 6 November 2015 and 4 December 2015 should be set aside. In light of the stay ordered by the primary judge, there would appear to be no need for orders for repayment.
I turn to costs. In this Court, Mr Turner has substantially succeeded, although he has failed to overturn the finding of contributory negligence. The Club's success has been much more equivocal. It has failed in the numerous grounds of appeal directed to displacing its own liability, it remains predominantly responsible for Mr Turner's loss, and to the extent it has shared in the success in making Hassell a joint tortfeasor, that was a stance contrary to that taken by it at first instance. Exercising the discretion as to costs on an issue by issue basis would produce complexity and disputation. Applying a broad-brush approach (see Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 at [18]-[19]), the appropriate order as to costs is that Hassell pay Mr Turner's costs of the appeal and cross-appeals, with the intention that Hassell and the Club each bear their own costs of the appeal and cross-appeals.
It is necessary to re-exercise the discretion as to costs of the trial. I incline to the view that Hassell and the Club should bear 25% and 75% respectively of Mr Turner's costs, and that otherwise there be no order as to the costs of Hassell and the Club with the intention that each bears its own costs. However, in part because there may be circumstances in relation to aspects of the proceedings at first instance as to which this Court is unaware, I would grant leave to the parties to supply short submissions on the question of costs at first instance if any of them wishes to contend for a different order. I would also direct the parties to supply short minutes of order consistently with the foregoing, including calculating the amounts of the judgments to which Mr Turner is entitled.
The formal orders I propose are: 1. Appeal allowed in part. 2. First and second cross-appeals allowed in part. 3. Set aside orders 1 and 2 made on 6 November 2015 and 1-3 made on 4 December 2015. 4. Order that Hassell pay Mr Turner's costs of the appeal and cross-appeals. 5. Direct the parties to supply, within 28 days of today, an agreed short minute of order, or, in the absence of agreement, short minutes of the orders for which he or it contends, and submissions not exceeding 5 pages in support, with a view that any dispute will be determined on the papers.
HARRISON J: I agree with Leeming JA.

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At a glance

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Judgment (13 paragraphs)

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