MORGAN v SHERTON PTY LIMITED [1999] NSWCA 60 | Case summary

1 MASON P: I agree with Sheller JA. 2 SHELLER JA: The primary facts in this case are not complicated. On 14 June 1995 the plaintiff and appellant, Michael Patrick Morgan, drove with his wife and one of his children to the Minchinbury Home Town Shopping Complex to buy a desk. They parked the car in the open car park of the complex. At about 5 pm they left the shop having failed to make their purchase. The plaintiff's wife and child returned directly to the car. The plaintiff visited the toilet. While returning from the toilet through the car park to the car the plaintiff chose a route which crossed a dividing garden bed. There was a clearly designated walkway to be taken. While crossing the bed he caught his foot on a dead or leafless branch protruding from a bush otherwise in leaf. He fell onto the bitumen on his elbow and suffered injury. He got up and continued to the car and then drove with his wife and child to Penrith, where he purchased the desk. The plaintiff brought proceedings in the District Court to recover damages in negligence for his injuries against Sherton Pty Limited, the occupier of the shopping complex. 3 On the night of the accident the plaintiff attended Mount Druitt Hospital. An evidentiary issue at the trial was whether the plaintiff was walking from the toilet to his car, as he and his wife said in evidence, or was running and jumped as he crossed the garden bed. There was evidence that if he had been running he would have hit the ground with greater impact than if he had been walking. 4 Her Honour Acting Judge Bard heard the case and delivered judgment on 16 February 1998 for the defendant. Based on the evidence given by a sister working at the Mount Druitt Hospital of a conversation she had with the plaintiff on the night of the accident, the trial Judge found that immediately before he fell the plaintiff "ran up to and jumped over" the garden bed. 5 Her Honour observed that the defendant conceded that it owed a duty of care to the plaintiff. On behalf of the plaintiff it was submitted that the defendant was negligent because it failed to prune off the dead branch from the bush within the garden thereby allowing there to remain a hazard to pedestrians who from time to time walked through the garden bed to reach their cars. 6 Her Honour concluded her reasons for judgment by making the following findings: "(1) The plaintiff was injured at Minchinbury Home Town Shopping car park on 14 June 1995. (2) The plaintiff ran up to and jumped over a garden dividing bed whilst in a hurry to return to his motor vehicle. (3) The defendant owed a duty of care to the plaintiff. (4) It was not foreseeable that a member of the public would run up and jump over a garden dividing bed without ensuring that he would not be tripped up by a plant within the garden bed, particularly in poor light. (5) The defendant did not breach its duty of care to the plaintiff." 7 The plaintiff has appealed from this decision. In particular, Dr Morrison SC, who appeared for the plaintiff on the appeal, submitted that the findings of non-foreseeability were wrong. Further, her Honour erred in determining whether the defendant was in breach of its duty of care by using foreseeability in the way she did in paragraph 4 of her findings and in the following earlier passage in her reasons for judgment: "In this case I do not believe that it was foreseeable that the public would fail to look out for vegetation hazards within divided garden beds if they intended crossing over them." 8 Put in simple terms, the plaintiff's argument was that this demonstrated a wrong approach in adjudging the defendant's liability. The defendant owed a duty of care to the plaintiff to take reasonable steps to prevent foreseeable risk of injury. There was a foreseeable risk of injury from the protruding branch. The remaining question was whether the defendant responded as a reasonable person would. A reasonable response would have been the removal of the dead branch thereby removing the risk of injury. 9 Reference was made to the well known passage in the judgment of Mason J, as he then was, in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47: "Consequently, when we speak of a risk of injury as being 'foreseeable' we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful." The plaintiff submitted that the risk of injury from the dead branch was not far-fetched or fanciful. 10 In Shirt's case Mason J went on to say at 47-48: "In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position. The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors." 11 The plaintiff submitted that once a foreseeable risk of injury is established the remaining question for consideration is the reasonable standard of response and whether the defendant has so responded. Whether it was foreseeable that the public would fail to look out for vegetation hazards within divided garden beds if they intended crossing over them or that a member of the public would run up and jump over a garden dividing bed without ensuring that he would not be tripped up by a plant within the garden bed, particularly in poor light, was beside the point and her Honour erred by taking these considerations into account. 12 In order to deal with this submission it is necessary to say more about the application of the concepts Mason J formulated and whether her Honour applied them. I start with the proposition, now well recognised, that the duty of care owed by an occupier is not merely to those who are reasonable and careful but also to those who might fail to take proper care for their own safety. In Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 at 445 Brennan CJ said: "Risks which are foreseeable include risks arising from an entrant's failure to exercise reasonable care for his or her own safety." 13 Involved are foreseeability of the plaintiff's behaviour in failing to exercise reasonable care and foreseeability of the risk this may give rise to. These are factors in what earlier in the same judgment (445) Brennan CJ called "the measure" of the occupier's duty. 14 In Romeo , a case in which the High Court by a majority held that an occupier, in that case a public authority, was not liable to a plaintiff who when affected by alcohol went at night to a part of a public reserve at the top of an unfenced cliff, the presence of which was obvious, fell over it and injured herself, Toohey and Gummow JJ said at 455 after referring to Mason J's judgment in Shirt at 48: "But in the present case the risk existed only in the case of someone ignoring the obvious. In putting the matter in that way, there is a danger of drawing in the question of contributory negligence of the plaintiff to what is a consideration of the duty of care on the defendant. For that reason we think it is preferable to approach the matter on the footing that there was a duty of care on the respondent to take any steps that were reasonable to prevent the foreseeable risk becoming an actuality." The first part of this dictum describes as significant the foolhardy or reckless conduct of the plaintiff which is then, to avoid speaking in terms of contributory negligence, restated in the language of the reasonable steps to be taken by a defendant. A defendant is not required to take steps to guard against the risk of injury the result of an entrant's deliberate or reckless behaviour which is likely to cause him or her injury. 15 At 478 Kirby J said: "It is one thing to hold that a person owes a duty of care of some kind to another. But the critical question is commonly the measure or scope of that duty. The failure to distinguish these concepts can only lead to confusion. The ordinary formulation of the common law is that a body such as the Commission must take reasonable care to avoid foreseeable risks of injury to persons entering an area such as the reserve, including the cliffs, as of common right. However, that expression of a duty must be elaborated if it is to be of any practical guidance. The entrant is only entitled to expect the measure of care appropriate to the nature of the land or premises entered and to the relationship which exists between the entrant and the occupier. The measure of the care required will take into account the different ages, capacities, sobriety and advertence of the entrants. While account must be taken of the possibility of inadvertence or negligent conduct on the part of entrants, the occupier is generally entitled to assume that most entrants will take reasonable care for their own safety; McLean v Tedman (1984) 155 CLR 306 at 311-2; Nagle v Rottnest Island Authority (1993) 177 CLR 423 at 431; compare Phillis v Daly (1988) 15 NSWLR 65 at 74." 16 Later in his judgment at 480 Kirby J said: "Insufficient attention has been paid in some of the cases, and by some of the critics, to the practical considerations which must be 'balanced out' before a breach of the duty of care may be found. It is here, in my view, that courts have both the authority and responsibility to introduce practical and sensible notions of reasonableness will put a brake on the more extreme and unrealistic claims sometimes referred to by judicial and academic critics of this area of the law. Thus, under the consideration of the magnitude of the risk, an occupier would be entitled, in a proper case, to accept that a risk of a mishap such as occurred was so remote that 'a reasonable man, careful of the safety of his neighbour, would think it right to neglect it'; Overseas Tankship (UK) Limited v The Miller Steamship Co Pty Limited [1967] 1 AC 617 at 642-3; compare Inverell Municipal Council v Pennington (1993) 82 LGERA 268 at 276 per Clarke JA. It is quite wrong to read past authorities requiring that any reasonably foreseeable risk, however remote, must in every case be guarded against. Such an approach may result from the erroneous conflation of the three separate inquiries: duty, scope of duty and breach of duty. Although a reasonably foreseeable risk may indeed give rise to a duty, it is the inquiry as to the scope of that duty in the circumstances and the response to the relevant risk by a reasonable person which dictates whether the risk must be guarded against to conform to legal obligations. Precautions need only be taken when that course is required by the standard of reasonableness; Phillis v Daly (1988) 15 NSWLR 65 at 73." 17 At 487 Hayne J remarked: "It was not (and could not be) seriously suggested that the respondent in this case owed no duty of care to members of the public that might go to areas which it manages. The real subject for debate was what that duty required of it, for it is only when the content or scope of the duty is identified the questions of breach and causation of damages can be considered. So, too, in Nagle the central question was not whether the Board owed any duty of care to those visitors lawfully visiting the island, it was what that duty of care required it to do. No question arose in Nagle (and no question arises here) whether the presence of the injured person in the area managed by the Board ….. was reasonably foreseeable." 18 What risk is foreseeable? In the passage I have quoted Brennan CJ included in foreseeable risks, risks arising from an entrant's failure to exercise reasonable care for his or her own safety. But this does not necessarily extend to risk arising from the entrant deliberately behaving in a foolhardy or reckless manner such as climbing over or attempting to climb over a fence along the edge of a cliff. This may be foreseeable rather than far-fetched or fanciful but it does not follow that the occupier's duty extends to protect the entrant from the risk of injury that comes with such conduct. In the words of Toohey and Gummow JJ "the risk existed only in the case of someone ignoring the obvious" and the scope of the duty does not extend to require occupiers to protect entrants from such risks. 19 In this case the defendant owed the plaintiff a duty of care. But the question remains, what is the measure (Brennan CJ in Romeo at 445) or scope (Kirby J at 478) or content (Hayne J at 487) of that duty. In that regard, the magnitude of the risk is a factor which itself can be gauged by asking the question whether the risk of the mishap which occurred was so remote that a reasonable person careful of the safety of that person's neighbour would think it right to neglect it. It might be argued that, in a car park area where there are dividing garden beds with, as in this case, paths to enable entrants to avoid the beds in going from and to their cars, the risk of an entrant injuring him or herself by choosing to take a short cut through the garden and tripping over the dead branch of a bush would be remote; compare Phillis v Daly . 20 One of the problems in the present case derives from the evidence. The appellant's account was that he tried to walk past the bush and tripped over the protruding branch which he did not see. Even if the risk of injury in such circumstances was reasonably foreseeable and the steps required to obviate it quite simple, namely the cutting off of the branch, the plaintiff's account was not accepted. 21 The trial Judge found that the plaintiff ran up to and jumped over the garden dividing bed whilst in a hurry to return to his car. The rejection of the plaintiff's account meant that the evidence did not allow a more precise finding. There was no evidence as to whether the plaintiff tried to jump over the bush or tried to jump over the branch and caught his foot on it. There was no evidence as to whether he did this in a moment of emergency when he ran upon the bush or branch unexpectedly. Jumping was a deliberate act. But whether the plaintiff jumped in a moment of emergency or otherwise he did not explain. About this he was not cross-examined. The defendant's counsel may have taken the view that cross-examination was unnecessary. 22 But the evidence meant that the question was whether the duty of care owed by the defendant to the plaintiff extended to guarding against the risk that he or any other person that might come upon the premises would in poor light attempt to jump over a garden bed with bushes in it. Her Honour clearly thought it did not. Arguably it is foreseeable that the public would fail to look out for vegetation hazards within divided garden beds if they intended crossing over them, or would run up and jump over a garden dividing bed without ensuring that they would not be tripped up by a plant within the garden bed particularly in poor light, but what her Honour meant was that the risk of injury to an entrant from the consequences of such an act was not a foreseeable risk or was remote or beyond the scope of the defendant's duty of care to the plaintiff. 23 In Phillis v Daly where the plaintiff, a visitor to a hotel, received injuries when she stepped onto and fell from a log placed in the hotel's parking area, Samuels JA at 68-9 said: "I think that it was foreseeable that an entrant might climb over the logs and in doing so place his or her foot on a protuberance (notwithstanding that there was room to avoid such a foothole) and, as a result of the convexity of contour, lose his or her footing. But, on the other hand, it seems to me that the degree of probability of such an occurrence was low, and the magnitude of the risk slight. …….. in my opinion the chance of a visitor to the premises coming to grief in stepping on and over the logs was so slight as to require no precaution omitted by the occupiers." 24 Mahoney JA at 74-5 said: "In determining whether he must deal with a particular danger and what he must do, the occupier is still entitled to take into account that, with due allowance for human nature, a person he permits to be upon his premises will use reasonable care for his own safety. To take an example used in argument, in deciding whether the risk was such that they had to spend money to remove the log and replace it with a fence, the defendants were entitled to expect that, with such allowances, persons coming upon their premises would pay heed to the obvious and act accordingly." 25 Her Honour referred to Phillis v Daly and took into account like considerations. 26 In my opinion, the appeal should be dismissed with costs. 27 FITZGERALD JA: I agree with Sheller JA. *****

MORGAN v SHERTON PTY LIMITED

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