Neighbourhood Association DP 295386 v Hannah Forgeron

Court of Appeal (NSW)|2005-05-13|Before: Neighbourhood Association DP, Beazley JA, Hodgson JA, Association DP

CITATION: Neighbourhood Association DP 295386 v Hannah Forgeron [2005] NSWCA 150

JUDGMENT OF: Beazley JA at 1; Hodgson JA at 2; Campbell AJA at 3

DECISION: The appeal be dismissed with costs.

CATCHWORDS: Negligence - occupier's liability - duty of care of Neighbourhood Association - Shirt calculus - ex tempore judgments - appeal dismissed.

Community Land Development Act 1989 LEGISLATION CITED: Community Land Management Act 1989

Maviglia v Maviglia [1999] NSWCA 188 CASES CITED: Tame v New South Wales [2002] 211 CLR 317 Wyong Shire Council v Shirt [1980] 146 CLR 40

Neighbourhood Association DP 295386 Appellant PARTIES: Hannah Forgeron Respondent

Mr I Harrison SC Appellant COUNSEL: Mr D Campbell SC / Mr S Longhurst Respondent

Leitch Hasson Dent Appellant SOLICITORS: Lawson Andonovski Respondent

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40046/04 DC 533/99

BEAZLEY JA HODGSON JA M W CAMPBELL AJA

Friday 13 May 2005 NEIGHBOURHOOD ASSOCIATION DP 295386 v HANNAH FORGERON Judgment

1 BEAZLEY JA: I agree with Campbell AJA. 2 HODGSON JA: I agree with M.W. Campbell AJA. 3 M W CAMPBELL AJA: This is an appeal from a judgment of his Honour Judge McLoughlin of the District Court awarding the respondent a verdict in the sum of $168,027.65. The appeal is confined to the issue of liability. 4 The principal issues that were developed during the hearing of the appeal were whether the Judge incorrectly stated the test for breach of duty of care, which it was agreed was that of an occupier and whether he failed to apply the proper test.

The Circumstances 5 The respondent, who was born on 4 May 1924, had purchased a retirement cottage within the Lakeline Estate Retirement Village at Kanahooka and lived there on 23 October 1998 on which day she suffered injuries as a result of a fall. 6 The respondent's lot together with other lots was the subject of a neighbourhood plan registered under the Community Land Development Act 1989. 7 Pursuant to the provisions of that Act the neighbourhood property within the area covered by the plan vested in the appellant. The appellant held the land as agent for all the members of the association as tenants in common. 8 It is not disputed that the respondent fell upon an access way being part of the association property. Nor was it disputed that the appellant had the care control and management of the access way pursuant to the Community Land Management Act 1989. Schedule 1, as amended of that Act provides, amongst other things: "1. An association must control and manage its open access ways and private access ways and all other parts of its association property and must do so for the benefit of its members. …….

An association must properly maintain, and keep in a good and serviceable state of repair, any part of its association property that is an access way. …….

In this clause: access way means an open access way or a private access way." 9 The access way, Melaleuca Crescent, which was used by cars and people, there being no footpaths, was being used by the respondent to take a walk. She noticed a fire hose strung across the road from its reel to a compound on the other side of the road. 10 The reel was about five feet above the ground with the result that the hose was above the ground in a curve for some distance. 11 The compound was occupied by people carrying out building works on as yet undeveloped lots. There was no dispute that those people made use from time to time of the fire hoses to supply water to the compound and for other purposes connected with the development works and the maintenance of associaion property. 12 As the respondent approached the hose was being reeled in by a young man Michael Hogan. She spoke to him, however, as she passed over the hose he pulled it up, the hose came up between the respondent's legs and sent her "flying through the air". Mr Hogan said to the respondent repeatedly that he was sorry. 13 It was not disputed that Mr Hogan worked for one of the entities carrying out further development. He was not an employee of the appellant. Judge McLoughlin observed that he may have been an employee of St George Building and Mechanical Pty Ltd which company had been a defendant in the proceedings until the respondent discontinued them as against that defendant. It appears to be accepted that success against that company was unlikely to recover any moneys. 14 The Judge explained the arrangements in relation to the village community as follows: "These premises were a retirement village which had initially been a caravan park, which a Mr Bruce Maples and his associated companies had developed, ultimately turning the property into a retirement village and continued to develop the retirement village after having sold a number of the units to persons over the age of fifty-five years for it to be used as a retirement village. The construction of further buildings and extension of that retirement village required further works to be carried out by Mr Maples and his companies and appropriate contracts were entered into between the defendant and Mr Maples' companies for their respective continual use of parts of the property of which the defendant had care, control and management. Mr Maples' companies were the original proprietor and were granted access complete and unrestricted by foot, motor vehicle, truck or tractor, had parking rights, temporary facilities, a right to install services, to connect services, to attach signs and to conduct sales. There was no contractual right given for the developer or any of the associated companies to use the fire hoses for any purpose whatsoever." The Judgment 15 The structure of the judgment presents some difficulties. However, it was delivered ex tempore and it is appropriate to adopt the approach referred to by Mason P in Maviglia v Maviglia [1999] NSWCA 188 when he said at [1]: "An ex tempore judgment should not be picked over. And appropriate allowance should be given for the pressures under which judges of the District Court are placed by the volume of cases coming before them."

16 The Judge, after an account of the introductory facts, set out the particulars of negligence alleged in the Statement of Claim. As it happens they did not include the critical allegation of failure to prevent inappropriate use of the fire hose, however, Mr Harrison of Senior Counsel, who appeared for the appellant, conceded that nothing turned upon this, having regard to the way in which the trial was conducted. 17 His Honour then noted: "The defendant in its conduct of maintenance, care and control of the premises employed a Mr Scoble of a real estate agency that conducted the management rights for and on behalf of the defendant." 18 After referring to the abandonment of the claim against St George Building and Mechanical Pty Ltd, the Judge observed: "That leaves the case against the first named defendant, the owner/occupier and corporation in control of the premises." 19 His Honour found that the use of the fire hoses had commenced "well before this accident occurred". He said: "The fire hoses had been used by either employees of Mr Maples' companies, or contractors to his companies and it would appear reasonably regularly, well before the plaintiff's accident to enable the transfer of water to their compound." 20 These findings came, substantially at least, from the evidence of Mr Donald whose position was described by the Judge in the following terms: "…..who was employed by Mr Scoble's companies as the Resident Manager of the whole of the retirement village. Mr Donald, apart from living within the premises, carried out frequent inspections, some repairs and was on hand to provide day to day assistance for any difficulties that may arise in the management and control of the retirement village." 21 The Judge noted that the streets were narrow, there were no footpaths and the means of access was along the narrow streets. The persons who purchased dwellings were all over fifty-five years of age. The plaintiff was seventy-four at the time of the accident. 22 Judge McLoughlin observed that Mr Donald conceded that he recognised the dangers that were associated with use of the hoses to transfer water to the compound and found that Mr Donald had complained to Mr Scoble on a number of occasions that the hoses were so used. 23 The Judge accepted that nothing was done in relation to Mr Donald's complaints and then observed: "…..and the view I come to was that as Mr Scoble and the developer, Mr Maples, sat on the board of the body corporate and that Mr Scoble had been appointed by Mr Maples to his position, that Mr Donald thought it appropriate to turn a blind eye to the use of the hoses by contractors or employees of Mr Maples' companies. This I am quite certain he did although his evidence was that he had complained on a number of occasions of this happening well before the plaintiff's accident and having no response." 24 Whilst Judge McLoughlin did express doubts as to whether Mr Scoble told the truth on all occasions, it would appear that he accepted Mr Scoble's evidence that he had spoken to Mr Maples about the contractor's use of the fire hoses approximately six months before the accident. 25 However, he then said: "But he had not written to Mr Maples or put it in writing, as he had done to one of the owners of a unit who had used the fire hose. He apparently had no record of it and did not tell Mr Donald of it occurring. He did not attempt to instruct Mr Donald to pursue the matter to prevent it, did not instruct Mr Donald to report to the appropriate board of the defendant, did not instruct Mr Donald in any way to attempt to prevent the usage of these fire hoses by contactors and by employees of the developer Mr Maples." 26 The Judge accepted that the practice of using the hoses for transporting water from the tap to the compound that was used by the developer continued until the respondent's fall. He noted that the compound also held materials used by the appellant for carrying out works associated with its management of the premises, Mr Hogan having done some of this type of work. Whilst there was no evidence as to the purpose for which the hose was being used on that day the Judge observed: " but it was being used in a manner similar to the way the hose had been used on a number of earlier occasions, which had prompted Mr Donald to complain and Mr Scoble to do little, if at all, anything."

27 He continued: "In my view no effective steps were taken by the defendant through Mr Scoble to attempt to cause the practise (sic) of the use of the fire hoses to cease. The use of the fire hoses brought with them, in my view, foreseeable risk of injury to elderly pedestrians required to traverse narrow roadways over which the hoses were unwound and once being unwound would at some stage need to be rewound. This (sic) creating movement of the hose across the means of access ways in this retirement village where a number of vehicles could park, much construction work was being carried out restricting further the available access area." 28 The Judge found that immediately subsequent to the respondent's fall the practice of the use of the fire hoses by contractors, builders or employees of Mr Maples ceased. He said: "The inference I draw from that is that there were steps well open to be taken by Mr Scoble to prevent the use of the fire hoses by these employees and contractors. One could imagine that proper supervision by Mr Donald could have brought it to an end; that the threat of appropriate court action for either trespass to land or goods could have brought it to an end; or an appropriate intervention by Mr Scoble. It would appear that a kerb based accident suffered by the plaintiff brought it to an end." 29 Judge McLoughlin said: "In my view, the risk of injury to the plaintiff was readily foreseeable by the use of these fire hoses, in a manner being described in this case by an eighteen-year-old labouring hand. It was readily foreseeable that when fire hoses are being used in those circumstances that they have potential to be unwound and rewound in close vicinity to aged pedestrians with often failing eyesight, failing hearing and other disabilities." 30 He considered the use of the hoses "in those circumstances" to be a breach of the duty of care owed by the appellant to the respondent. 31 The Judge noted the submissions of Mr Swinton of Counsel who appeared for the appellant below that: (a) the appellant had no responsibility for the actions of the Mr Hogan;

(b) that it (presumably his action) was not foreseeable; and (c) that there was no relationship between allowing the hose to be used and the accident. 32 His Honour commented that when pressed "Mr Swinton concedes that there was a mere foreseeability that the use of the hose could bring with it the use of the hose in a negligent fashion in the presence of aged and disabled pedestrians" (the emphasis is mine). 33 It is necessary in order to appreciate the submissions of counsel to set out the remainder of the judgment on the issue of liability. The judgment continued: "In my view, the defendant in its care and its duty to make the premises as safe as reasonable care and skill can make it, has a duty to ensure that the contractors carry out all work that they carry out in a proper and safe manner and use reasonable care and skill in the carrying out of it. It would appear that by the inaction exhibited by Mr Scoble to Mr Donald's complaints in relation to the hose use, indicated a turning of the blind eye to most of the conduct carried out by the developer and the contractors to the developer or employees of the developer. There is no evidence of any other conduct that was carried out in a negligent manner, except that which relates to this incident and the hose usage. This indicates a background, at least on Mr Donald's evidence, of acquiescence by the defendant through Mr Scoble in the conduct and use of the defendant's premises by Mr Maples' companies and contractors, and indicates in my view a real lack of attempt to ensure accountability and safe procedures were adopted, further giving support to the view I have come to that the defendant was negligent, that its negligence in allowing the use of the hoses in the manner described, could have readily been avoided. The risk of injury was foreseeable, the injury could have been prevented by steps taken to prevent the use of the hoses and in my view the plaintiff has successfully maintained the action in negligence against the first named defendant. I am of the view that the first named defendant failed to ensure that the hoses were not used, allowed the use of the hoses to commence and continue in circumstances where there was the real risk of injury, that the injury occurred when Mr Hogan, being aware of the plaintiff's presence, continued to wind the hose as the plaintiff proceeded to step across it, that he did that in circumstances where, not as Mr Swinton submits was mere inadvertence, in my view it was negligence to do so. I find that any reasonable person would have foreseen that to continue to reel in the hose, which was at an angle to the hose wheel, thereby not lying flat along the ground and likely to trip and impede the path of an ageing passing pedestrian, and was readily apparent to Mr Hogan. I am satisfied that the plaintiff has established the negligence alleged as against the first named defendant and that the first named defendant should not have allowed the hose to be placed on the ground at all, and failed to institute and devise a proper and safe system in relation to the hose by allowing its use in the circumstance described and attributed to Mr Hogan. The plaintiff is therefore, in my view, entitled to a verdict." The Submissions 34 The oral submissions markedly narrowed the issues to be considered in the appeal. Mr D Campbell of Senior Counsel, who appeared with Mr S Longhurst of Counsel for the respondent, indicated that the respondent relied solely upon the duty of care owed by the appellant as an occupier. He conceded that Judge McLoughlin was in error in formulating the applicable duty as follows: "In my view, the defendant in its care and its duty to make the premises as safe as reasonable care and skill can make it, has a duty to ensure that the contractors carry out all work that they do carry out in a proper and safe manner and use reasonable care and skill in the carrying out of it." 35 It followed that the Judge was in error in as far as he relied upon the actions of Mr Hogan as a vicarious source of liability in the appellant. 36 However, Mr Campbell contended that the Judge, as a separate source of liability, had found the appellant negligent in respect of its duty of care as an occupier. He pointed, in particular, to the passage: "There is no evidence of any other conduct that was carried out in a negligent manner, except that which relates to this incident and the hose usage. This indicates a background, at least on Mr Donald's evidence, of acquiescence by the defendant through Mr Scoble in the conduct and use of the defendant's premises by Mr Maples' companies and contractors, and indicates in my view a real lack of attempt to ensure accountability and safe procedures were adopted, further giving support to the view I have come to that the defendant was negligent, that its negligence in allowing the use of the hoses in the manner described, could have readily been avoided. The risk of injury was foreseeable, the injury could have been prevented by steps taken to prevent the use of the hoses and in my view the plaintiff has successfully maintained the action in negligence against the first named defendant." 37 It is convenient to say two things as to this passage. First, the Judge had made it clear that he accepted Mr Donald's evidence. 38 And second, the words "a real lack of attempt to ensure accountability and safe procedures" could well refer to matters other than cessation of use, however, it is clear from the judgment as a whole and the attention given to that issue that the Judge did regard it as an independent head of negligence. I note that he began the next paragraph with the phrase "failed to ensure that the hoses were not used…". Of course had that been done the latter referred to aspects would not have arisen. 39 The issues being thus narrowed Mr Harrison submitted that the Judge had not correctly applied the relevant test in determining whether the appellant had taken reasonable care to avoid a reasonably foreseeable risk of injury. 40 He submitted that the Judge had fallen into the error identified by McHugh J in Tame v New South Wales [2002] 211 CLR 317 at 353. McHugh J said: "Given the undemanding nature of the current foreseeability standard, an affirmative answer to the question whether damage was reasonably foreseeable is usually a near certainty. And a plaintiff usually has little trouble in showing that the risk was reasonably preventable and receiving an affirmative answer to the second question. This is especially so since Lord Reid said that a reasonable person would only neglect a very small risk of injury if there was "some valid reason" for disregarding it, a proposition that effectively puts the onus on the defendant to show why the risk could not have been avoided. Once these two questions are answered favourably to the plaintiff, there is a slide - virtually automatic - into a finding of negligence. Sometimes, courts do not even ask the decisive question in a negligence case: did the defendant's failure to eliminate this risk show a want of reasonable care for the safety of the plaintiff? They overlook that it does not follow that the failure to eliminate a risk that was reasonably foreseeable and preventable is not necessarily negligence. As Mason J pointed out in Wyong Shire Council v Shirt [1980] 146 CLR 40 at 47-48 in a passage that is too often overlooked: "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 ." (emphasis added) "

(Some references have been omitted.) 41 Accepting for the purpose of the argument that foreseeability and preventability had been established Mr Harrison contended that Judge McLoughlin had not undertaken what is sometimes referred to as the Shirt calculus. He had, it was asserted, slid from those findings into a finding of negligence. 42 I do not accept that submission. Whilst it is true that the judgment does not speak in terms of a balancing question I consider that a fair reading of the judgment as a whole shows that the Judge had the relevant considerations in his mind and approached them in a way which showed that he was aware of the need to balance the various factors. 43 After referring to "steps well open …to prevent the use" Judge McLoughlin referred to Mr Swinton's concession of mere foreseeability. It is apparent that the Judge did not consider mere foreseeability, even in conjunction with established preventability, the end of the matter. 44 The judgment contained repeated references to the age of the residents. For example: "It was readily foreseeable that when fire hoses are being used in those circumstances that they have potential to be unwound and rewound in close vicinity to aged pedestrians with often failing eyesight, failing hearing and other disabilities." 45 Whilst this aspect goes to foreseeability, it also goes to the likelihood of injury which it seems to me the Judge put reasonably high. It would seem clear enough that Mr Donald, who was in a good position to be aware of the risk, thought it high enough to complain repeatedly. 46 Although not expressed it is unlikely that the Judge's consideration of the age of the residents would not involve an awareness of the greater vulnerability of such people to the effect of injury. The appellant would certainly have been aware of this feature of its residents. 47 A convincing demonstration of the need to consider comparisons rather than absolutes emerges from the Judge's reference to his finding that the use of the hoses "could have readily been avoided" (the emphasis is mine). 48 It was not suggested at trial or indeed upon appeal that the appellant had other conflicting responsibilities which should play a part. 49 The absence of express reference to the calculus is to be seen in the light of the absence of reference to it in Mr Swinton's submissions as noted in [31] above. The Court did not have the addresses below, however, it was not put that the Judge was in error in stating the issues raised by Mr Swinton. 50 I should note that Mr Harrison did, somewhat faintly, raise an issue as to foreseeability, however, I consider there to be ample evidence for the Judge's finding on that issue. 51 In my view Judge McLoughlin made all necessary findings to found a verdict for the respondent based upon the appellant's failure to prevent inappropriate use of the fire hose, there is evidence to support each of such findings and he did not fall into error in applying the relevant tests.

Proposed Order 52 I propose that the appeal be dismissed with costs. **********

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