Court of Appeal (ACT)|2003-12-05

O'Meara v Dominican Fathers [2003] ACTCA 24 (5 December 2003)

SKYE HELEN O'MEARA v DOMINICAN FATHERS (ACN 006 193 255) [2003] ACTCA 24 (5 December 2003)

NEGLIGENCE - occupier's liability - fall from first floor balustrade of a residential university college -whether college aware of practice of unsafe behaviour and failed to take precautions - where balustrade did not comply with current building standards

CONTRACTS - occupier's liability - contractual liability - content of implied term as to safety of premises - where appellant is fee paying resident in residential university college - where practice of unsafe conduct by students - obligation of occupier in control of premises

EVIDENCE - hearsay rule - business records exception

EVIDENCE - evidence produced by process, machines or other devices - proof of contents of a document

EVIDENCE - failure to call evidence - Jones v Dunkel inference - whether respondent had knowledge of practice of unsafe behaviour - where respondent failed to call available evidence - where appellant entitled to inference that such evidence was not led because it would not have assisted the respondent

CONTRIBUTORY NEGLIGENCE - whether apportionment of liability in contract where contributory negligence - whether duties in tort and contract are co-extensive

Law Reform (Miscellaneous Provisions) Act 1955 (ACT) s 15

Ahluwalia v Robinson [2003] NSWCA 175 cited

Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 cited

Astley v Austrust Ltd (1999) 197 CLR 1 referred to

Australian Safeways Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 cited

Barrett v Ministry of Defence [1994] EWCA Civ 7; [1995] 3 All ER 87 cited

Blatch v Archer [1774] EngR 2; (1774) 1 Cowp 63 cited

Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512 referred to

Calin v The Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33 considered

Cardone v Trustees of the Christian Brothers [1994] ACTSC 85 distinguished

David Jones Ltd v Bates [2001] NSWCA 233 cited

Desmond v Cullen [2001] NSWCA 238 cited

Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614 considered

Hoyts Pty Ltd v Burns [2003] HCA 61 cited

Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 applied, referred to

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 applied

Key v Commissioner for Railways (1941) 41 SR (NSW) 60 cited

Lopes v Taylor (1970) 44 ALJR 412 cited

Maclenan v Segar [1917] 2 KB 325 cited

Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 cited

Morgan v Babcock and Wilcox Ltd [1929] HCA 25; (1929) 43 CLR 163 cited

National Australia Bank v Rusu [1999] NSWSC 539; (1999) 47 NSWLR 309 considered

Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 cited

Nuhic v Rail & Road Excavations [1972] 1 NSWLR 204 cited

O'Donnell v Reichard [1975] VicRp 89; [1975] VR 916 cited

Papatonakis v Australian Telecommunications Commission [1985] HCA 3; (1985) 156 CLR 7 cited

Phillis v Daly (1988) 15 NSWLR 65 cited

Postnet Pty Ltd v Wood [2002] ACTCA 5 referred to

Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 applied, referred to

Rundle v State Rail Authority of New South Wales [2002] NSWCA 354 referred to

State Of New South Wales v Steed [2001] NSWCA 178 considered

State Rail Authority of New South Wales v Richard Stanley William Watkins [2001] NSWCA 405 referred to

South Tweed Heads Rugby League Football Club Ltd v Cole [2002] NSWCA 205; (2002) 55 NSWLR 113 cited

Tame v New South Wales [2002] HCA 35 cited

Tomlinson v Congleton BC [2003] UKHL 47; [2003] 3 WLR 705 referred to

Watson v George [1953] HCA 41; (1953) 89 CLR 409 followed, cited

Widera v Reid [2002] ACTCA 3 applied

Wood v Postnet Pty Ltd [2002] ACTSC 48 cited

Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9; (2002) 208 CLR 460 referred to

Wyong Shire Council v Shirt [1980] HCA 12; (1979) 146 CLR 40 referred to

Swanton, 'Occupier's Liability Towards Contractual Entrants' [1989] MonashULawRw 5; (1989) 15 Monash University Law Review 69

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Court of Appeal of the Australian Capital Territory

IN THE SUPREME COURT OF THE ) No. ACTCA 33-2002

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

The parties bring in short minutes of order to give effect to these reasons**.**

IN THE SUPREME COURT OF THE ) No. ACTCA 33-2002

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

1. I am indebted to Gyles and Weinberg JJ for their account of the facts and issues that arise for consideration on this appeal. However, I have ultimately formed a different view as to the merits of the appeal and it is appropriate that I provide a brief statement of my reasons.

2. I agree with their Honours' conclusion that Master Connolly, as he then was, was correct in holding that the respondent was not guilty of negligence merely because it failed to upgrade an existing building to comply with a subsequent alteration to the building code and that at least that portion of the premises in the vicinity of the accident could properly be described as 'unremarkable'.

3. I also agree that the scope of the general duty of care owed to the appellant may have required the respondent to take reasonable precautions to protect her from at least some risks likely to arise as a consequence of inadvertence or inattention but that this duty did not extend to risks caused by her deliberate decision to lift herself onto the balustrade. Like their Honours, I am not persuaded that a risk assessment would have concluded that inattention or carelessness, whether or not as a result of alcohol or high spirits, would have led to any risk of falling from the area in question. No fall had been reported in nearly thirty years since the balustrade had been constructed.

4. I also agree with their Honours' observation that, as with many parts of properly designed and constructed buildings, there was scope for danger if a person were to be reckless or foolhardy but that the Master had been right to conclude that the respondent's duty did not require it to take steps to guard against that risk. I share the opinion that it was not realistic to think that a warning sign or prohibition would have deterred every casual irresponsible act in this or other parts of the building.

5. However, I am unable to agree with their Honours' view that, notwithstanding these conclusions, the appeal should be allowed because the Master should have found that the respondent had been on notice of a practice of residents sitting on the balustrade and that its failure to take measures to alleviate the risk thereby created constituted a breach of the duty of care it owed to the appellant.

6. The Master was not satisfied that the respondent had been aware of residents sitting on the balustrade and the contention that he fell into error by failing to make a finding to that effect was not based merely upon the evidence actually adduced but upon the rule in Jones v Dunkel (vide Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 per Kitto J at 308, Menzies J at 312 and Windeyer J at 320-322; see also Widera v Reid [2002] ACTCA 3 at [21]). In essence, it was argued that knowledge of such a practice should be imputed to the respondent because it could have been expected that the practice would have come to the attention of at least some of the college staff over the years and the respondent had declined to call any witnesses to deny having been aware of it, other than Father Fowler, who had been appointed to the college only about six months prior to the accident, and Father Saunders, who had apparently left the college in 1983.

7. Counsel for the appellant sought to build on this conceptual platform by arguing that the risk of residents, such as the appellant, being injured by falling from the balustrade was reasonably foreseeable and that it could have been alleviated by providing a warning, removing the chairs and tables from the balcony to discourage residents from congregating in the area and/or raising the height of the balustrade. Since these precautions would have been relatively inexpensive and the foreseeable risk of injury was substantial, the respondent's failure to adopt them constituted a breach of its duty of care to the appellant.

8. There is a beguiling simplicity to this argument but I have ultimately concluded that it is not adequately supported either by the evidence that was before the Master or by the principles he was bound to apply.

9. Whilst the force of the submissions for the appellant should not be unduly discounted due to purely semantic considerations, the use of the word "practice", tends to imply a constant pattern of behaviour or, at least, a regular habit. In fact, the Master did not find that there had been a "practice" of students sitting on the balustrade. He found only that the plaintiff had established that "some students have sat on" the balustrade. There had been some evidence of frequency. For example, the appellant had claimed that "people sat there all the time". However, the Master was only able to find that, "some students have never seen anyone sit on the wall, and others have". The notice of appeal did not include any ground challenging the adequacy of this finding. Indeed, the relevant ground of appeal alleged only that the Master was in error "in failing to determine that the respondent ought to have been aware of the practises (sic) of students sitting on the ledge from time to time . . . " (emphasis added). The Master also noted that Father Fowler had given evidence that during the period between his appointment as Deputy Master in April 1996 and the accident in October of that year, he had never seen a student do so. It is true that those who had acted as Master or Deputy Master at the College between 1983 and 1996 were not called to give evidence but that omission did not require the Master to ignore the evidence actually given by Father Fowler, or to conclude that during the six month period in question he had constantly overlooked a regular pattern of potentially dangerous activity in the building he administered.

10. Even if the mere occurrence of some incidents of residents sitting on the balustrade could fairly be described as a "practice", the Master made no findings as to how many students may have sat on it or when or how frequently they may have done so. In the absence of any such findings, there was no adequate basis for concluding that it had been incumbent upon the Master to find that the respondent had either known or ought to have known of a continuing "practice" requiring intervention in the manner suggested by counsel for the appellant.

11. In my opinion, the attempted invocation of the rule in Jones v Dunkel did not require or even authorise the Master to draw the inferences suggested. The rule may permit an inference that the evidence of the witness in question would not have assisted the party who failed to tender it. However, the rule is not an absolute one. The failure to call a potentially relevant witness is merely one factor which a court may take into account if, in all the circumstances, it regards it as a relevant consideration. Furthermore, the rule does not permit a further inference that the untendered evidence would have been damaging to that party and cannot be used to fill gaps in the evidence or convert conjecture and suspicion into inference: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 at 308, 312 and 320-1; Lopes v Taylor (1970) 44 ALJR 412 at 418 and 422; and Nuhic v Rail & Road Excavations [1972] 1 NSWLR 204 at 206-7.

12. In the present case, I am prepared to assume that the Master would have been entitled to infer that the evidence of earlier office holders at the college would not have assisted the respondent. I am also prepared to assume that this conclusion might have supported a further inference that they would have been unable to deny having been aware of some occasions during earlier years when one or more students had sat on the balustrade. The Master would have been entitled to weigh these inferences in the balance when considering the other evidence on this issue. However, he could not have concluded that the mere failure to adduce evidence from the earlier office holders proved that, as at the date of the accident, the respondent knew or ought to have known that there was then a current practice of residents, such as the appellant, sitting on the balustrade or that the duty of care which it owed to such residents required it to address that risk in the manner suggested.

13. More fundamentally, I am unable to accept that knowledge of residents sitting on the balustrade would have cast upon the respondent a duty to take any of the steps suggested. The respondent was not operating a school but providing residential accommodation for young adults attending university. The country abounds with clubs and hotels equipped with balconies at various levels and the appellant and her fellow residents of the college were of an age to use facilities of that kind. It is difficult to imagine that patrons of such licensed premises are always well behaved and invariably exercise due care for their own safety. Yet our attention was not drawn to any authority purporting to establish that the mere provision of such facilities constitutes a breach of the duty of care which the relevant club or hotelier owes its patrons, either ipso facto or by reason of knowledge that patrons had previously sat on properly constructed balustrades or otherwise acted in a manner involving risks to their own safety.

14. It is a sad fact of human experience that people do sometimes act irresponsibly, whether by driving too quickly, leaning too far out of windows or sitting on balustrades. If they are injured as a consequence, they may be entitled to some measure of sympathy but, if the vehicle or building has been constructed in accordance with prevailing standards and is in good repair, they will not be entitled to cast responsibility for their injuries on to the owner unless they can point to some further factor involving negligence on his or her part. Such a factor may sometimes be found in circumstances which should have placed the owner on notice that, whilst the relevant part of the building was generally safe, it might have posed a special danger to the plaintiff by reason of his or her age, mental impairment or state of intoxication. However, it will not be sufficient for the plaintiff to demonstrate that the defendant had knowledge of other people having previously committed similar irresponsible acts. For instance, a car manufacturer will not be negligent for fitting opening windows even though it is aware that there have been cases of people being injured by hanging their arms out of windows and having them struck by oncoming vehicles. In my opinion, the same is true of actions against building owners. Putting aside special cases such as schools or mental hospitals, it is the duty of an occupier to ensure that the building is reasonably safe for entrants taking reasonable care for their own safety. It is not the duty of an occupier to ensure that no entrant can be injured by his or her own irresponsible behaviour.

15. In Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488 a majority of the High Court of Australia accepted that the general principles governing the liability of occupiers to entrants were as stated by Deane J in Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614 in the following passage at 662 to 663:

All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant's occupation of premises and the manner of the plaintiff's entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. A prerequisite of any such duty is that there be the necessary degree of proximity of relationship. The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member. The measure of the discharge of the duty is what a reasonable man would, in the circumstances, do by way of response to the foreseeable risk.

16. Read in isolation, this passage might be seen to provide some basis in principle for the contentions advanced on behalf of the appellant. However, as the NSW Court of Appeal has stressed in successive judgments, the reasonableness of the occupier's conduct is to be measured having regard to the assumption that entrants will take reasonable care for their own safety: see Phillis v Daly (1988) 15 NSWLR 65 at 74; David Jones Ltd v Bates [2001] NSWCA 233; and State Rail Authority of New South Wales v Richard Stanley William Watkins [2001] NSWCA 405. See also Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 per Kirby J at 478; and Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council [2001] HCA 29; (2001) 206 CLR 512 at [63].

17. In State Of New South Wales v Steed [2001] NSWCA 178 at [46] - [48] the NSW Court of Appeal explained that:

Plainly, factors such as the magnitude of the risk, its degree of probability (or remoteness), and the possibility of inadvertence or negligent conduct on the part of entrants, are important in determining the scope of the duty of care. Others which may be relevant are the obviousness of the risk, and the circumstances under which the entrant engages in conduct that attracts the risk.

Where the entrant deliberately and for pleasure engages in hazardous recreational activities where the risks are obvious, the scope of the duty of care may be limited indeed: Agar v Hyde [2000] HCA 41; (2000) 74 ALJR 1219 (participation in a football game), Prast v Town of Cottesloe [2000] WASCA 274; (2000) 22 WAR 474 (body-surfing in the ocean), Mountain Cattlemen's Association of Victoria Inc v Barron [1998] 3 VR 302 (leading a horse over small and slippery rocks), Secretary to the Department of Natural Resources and Energy v Harper [2000] VSCA 36; [2000] 1 VR 133 (visiting a forest reserve where there was an obvious danger of falling trees in high winds).

The scope of the duty may also be particularly limited where the risks materialise because of wayward or aberrant or unexpected conduct on the part of the entrant: Romeo v Conservation Commission of the Northern Territory (walking at night at the top of an unfenced cliff edge), Phillis v Daly (1988) 15 NSWLR 65 (stepping onto a large log), Morgan v Sherton Pty Limited (jumping over a garden bed while returning to a parked car).

18. These authorities do not suggest that no duty is owed to a person who acts in a wayward or hazardous manner but rather, that the scope of the duty is limited. Hence, if a person attempts to play football in a suburban yard, the occupier may have a duty to warn him of the presence of broken glass or other hidden dangers but will not normally have a duty either to prevent him from playing or to make the yard safe for that type of activity by such measures as padding the trunks of trees as if they were goal posts.

19. In the present case, I do not accept that the evidence compelled a conclusion that a reasonable person in the position of the respondent, even if aware that some residents had at some earlier time sat on the balustrade, would have accepted that there was a need to respond to the risk of such irresponsible behaviour by adopting any of the measures suggested by the appellant. This was not a case in which the safety of residents was imperilled by some defect in the building, such as where an unduly low balustrade created an unnecessary risk of someone leaning out, overbalancing and falling over. The danger was created only by the decision of an apparently intelligent adult to lift herself on to the balustrade in circumstances where the risk of behaving in that manner was obvious.

20. In claims of this nature it will almost always be possible for counsel to suggest something that might have been done to alleviate the risk of an accident and, when a person has been seriously injured in an accident that may have been preventable, it may be understandable if he or she readily attributes the injuries to the presumed negligence of the person who might have prevented them. However, whilst sympathy and the wisdom of hindsight may form a potent cocktail, the law has never imposed upon owners or occupiers a duty to make property so safe that even those acting in an irresponsible manner will be protected from the dangers that they, themselves, have created. The law requires the application of reasonable care. This means that, whilst due allowance must be made for such human failings as inadvertence, inattention and even carelessness, people may generally be expected to take reasonable care for their own safety.

21. The approach suggested seems to involve the proposition that the ambit of the duty of care will be progressively extended as dangerous practices become known. Such a duty might not only impose onerous burdens on owners, occupiers and insurers but, over time, affect the general level of amenity of those who accept responsibility for their own behaviour. The proposition that adults should be discouraged from congregating on balconies as soon as it becomes known that some people have been sitting on the balustrades seems, with respect, to overlook the interests of residents who may enjoy sharing the balconies with their friends on social occasions. Furthermore, once accepted, it would seem difficult to prevent the principle from progressively restricting access to lookouts, lighthouses, paths beside seaside cliffs and other potentially dangerous areas as new forms of irresponsible activity emerge or less draconian means of containing them prove ineffective.

22. The need to protect people from unacceptable risks must be balanced against the need to respect individual freedom and responsibility. Even children are permitted to accept some measure of risk. For example, responsible parents may encourage a young son or daughter to learn to ride a bicycle though they know the process is likely to involve some falls and are acutely aware of the hazards that may be encountered when he or she eventually ventures onto the roadway. Adults are generally permitted to make their own decisions about the level of risk they will accept. Hence, they may choose to go abseiling, bungy jumping, sky diving or engage in extreme sports. If injured in the course of such pursuits, their prospects of obtaining damages from others will depend upon establishing some act of negligence, such as the provision of faulty equipment or inadequate instruction, that effectively caused the accident. However, in the absence of any such factor, they must generally accept responsibility for their own decisions and, if they are injured as a consequence of deciding to act in a manner involving obvious risks to their own safety, they should not be able to cast responsibility onto others who merely failed to intervene. For example, those administering a national park should not be found to have acted negligently merely because they had known that people were rock climbing within the park and could have restrained them.

23. In my opinion, the position is even more clear when an adult chooses to sit on a balustrade that has been properly constructed in accordance with relevant safety standards. Unless aware that he or she is intoxicated, mentally ill or otherwise unable to understand the risk, the occupier of the building does not have a duty to attempt to prevent him or her from doing so. In the present case, whilst the appellant had apparently consumed a significant quantity of alcohol, it was not suggested that the respondent was aware of that fact or that the consumption of alcohol had been causally related to the accident.

24. As mentioned earlier, I can see no valid reason to impute to the respondent a duty to have prevented students from congregating on a balcony adjacent to a bar and dining room which had presumably been designed for that purpose. Similarly, I do not accept that it was reasonably incumbent upon the respondent to reduce the amenity of the area by removing the seating. The level of amenity provided at residential colleges such as this or, for that matter at licensed clubs or hotels where drinks may be served on balconies, should not be limited by a perceived requirement that the relevant areas will be made safe for anyone whose degree of irresponsibility does not exceed that which has been displayed on some previous occasion. The congregation of people on balconies is not intrinsically undesirable. It permits people to enjoy the open air, escape from the noise and heat generated by crowds indoors and, perhaps, smoke without inflicting on others the perils of passive smoking in enclosed spaces. Nor do I accept that the risk would have been materially reduced if the respondent had done so. People tend to congregate on balconies adjacent to dining rooms and bars even when there is no seating. Indeed, the removal of the seating may actually have made it more, rather than less likely that people would sit on the balustrade.

25. In my view a warning was clearly not required. As the Master pointed out in Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 at 478, Kirby J said that:

Where a risk is obvious to a person exercising reasonable care for his or her own safety, the notion that the occupier must warn the entrant about that risk is neither reasonable nor just.

26. The Master quite properly observed that this passage had been the subject of some comment by Gleeson CJ in Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9. In that case the plaintiff had been struck in the eye and injured while playing indoor cricket. His Honour observed at [43] that French DCJ had concluded that the risk of a player being struck in the face by a cricket ball was so obvious that no warning was required. His Honour then referred to Kirby J's statement from Romeo (referred to above) and said at [45]:

It is right to describe that observation as a comment. It is not a proposition of law. What reasonableness requires by way of warning from an occupier to an entrant is a question of fact, not law, and depends on all of the circumstances, of which the obviousness of a risk may be only one. And, as a proposition of fact, it is not of universal validity. Furthermore, the description of a risk as obvious may require closer analysis in a given case. Reasonableness would not ordinarily require the proprietor of an ice-skating rink to warn adults that there is a danger of falling; but there may be some skaters to whom such a warning ought to be given. Nevertheless, as a generalisation, what Kirby J said is, with respect, fair comment. That is how French DCJ and the Full Court understood it, and they did no more than indicate that they regarded it as apposite to the present case. There is no error in that.

27. In the present case I am unable to see any basis for a contention that the Master should have imputed to the respondent a duty to erect signs warning adult residents and visitors that it was unwise to sit on a balustrade above a drop of about five metres. I am equally unable to see any basis upon which the Master should have postulated a duty to give oral warnings. I am not aware of any authority in which an occupier has been held to have had a duty to station someone at a door to personally warn each entrant of such a risk or to interrupt the festivities to make announcements to that effect.

28. The argument also seems to overlook the fact that no one had fallen from the balustrade since the College had opened. I find it difficult to imagine that the appellant, who was presumably well aware of the potential drop, would have changed her mind about sitting on the balustrade if told that, whilst in thirty years nobody had ever fallen off the balustrade, there was a risk that she could be the first.

29. The only other preventable measure suggested by the appellant was raising the height of the balustrade but, as mentioned earlier, this was not a case of someone toppling over a balustrade that was too low, but rather, a case of the appellant lifting herself up onto it. I accept that if the height had been raised considerably, then it may have made it more difficult for the appellant to have done so. However, this proposition could be advanced on behalf of any plaintiff who has fallen from a balustrade of any height. It would always be possible to argue that the accident might not have occurred if the balustrade had been even higher and the task of climbing onto it correspondingly more difficult. The only safe course for an occupier would presumably be to ensure that any balconies were wholly enclosed by glass panels running from floor to ceiling and I do not accept that an occupier is obliged to take such draconian measures.

30. In my opinion, the crucial question is not whether a higher balustrade might have inhibited or even prevented a plaintiff from behaving in a dangerous manner but whether the actual height of the balustrade posed an unacceptable risk of injury to those exercising reasonable care for their own safety. In addressing this issue, the respondent was entitled to rely upon the fact that it had complied with the standards applicable to buildings of the relevant kind at the relevant time. It was not suggested that the respondent should have presumed that, in setting the required heights for balustrades, the authorities would have been unaware of the likelihood of young adults congregating on balconies or even the risk of people sitting on the balustrades. In my view, the respondent was, on the contrary, entitled to assume that such contingencies had been duly taken into account and that the height specified reflected prevailing safety standards. Consequently, I am unable to accept their Honours' view that a railing should have been erected, whether to raise the effective height of the balustrade or to prevent people approaching it.

31. For these reasons, I am not satisfied that the Master fell into error by failing to find that the appellant's injuries were attributable to any breach of the duty of care which the respondent owed to her under the common law.

32. I am also not satisfied that the appellant had established a case against the respondent based on breach of contract. I accept that the general principle is that an occupier owes those who enter the premises pursuant to contract a duty to ensure that the premises are as safe as reasonable care on the part of anyone can make them: see Watson v George [1953] HCA 41; (1953) 89 CLR 409. However, this formulation does not imply that the occupier's duty extends to making the premises safe for every purpose, however irresponsible. Hence, in Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 Gummow & Hayne JJ, whilst citing Watson v George and suggesting that the duty based in contract should be translated into tort, posed the question: what may constitute a dangerous defect? After citing cases in which particular conditions had been so described, their Honours concluded at [178] and [179] that:

The thread running through these cases is that a dangerous defect will, or may, cause injury to persons using the premises in an ordinary way. They are defects in the sense that they are more than dangerous; they are dangerous in a way not expected by their normal use. Many domestic items might be said to be dangerous: gas ovens, caged fans, hard floors, electrical circuits and panes of glass may cause serious or even fatal injuries. However, they are ordinarily only dangerous if misused. They will only be defective if they are dangerous when being used in a regular fashion and ordinarily would not be dangerous when so used . . . The reasonableness of the conduct engaged in by the person injured will be important. The danger may arise only to those performing acts unauthorised or uncontemplated as part of the purpose for which the tenancy was let. If so, there ordinarily will not be a dangerous defect...

33. Similar approaches have been taken in other claims based on contract. For example, in Rundle v State Rail Authority of New South Wales [2002] NSWCA 354, the NSW Court of Appeal rejected a contention that the State Rail Authority had been negligent in failing to construct windows on trains so that a person would be unable to climb out of them whilst the train was moving, concluding, inter alia, at [53] that:

. . . what the plaintiff did was not part of the "ordinary use" of the carriage, and the danger to him was not "likely to arise out of the ordinary use of the carriage". The defendant had taken precautions against dangers arising from the ordinary use of the carriage, for example by passengers desiring to put their heads out of the window for a better view or air or to relieve illness, or by passengers desiring to put their arms out. The defendant's duty did not extend so far as to oblige it to take precautions against passengers seeking to sit on the window edge with their entire torso and head outside with a view to damaging the defendant's property.

34. In the present case, there was, of course, no suggestion of any such impropriety on the appellant's part and her action in sitting on the balustrade was obviously not as dangerous as that undertaken by the hapless Mr Rundle. The case is instructive only because it provides further confirmation that even the high duty of care that may arise under contract will usually require only the provision of precautions against dangers arising from the "ordinary use" of the premises (or, in Mr Rundle's case, the carriage). The respondent had taken precautions against dangers arising from the ordinary use of the balcony by providing a properly constructed balustrade, I do not accept that its duty required it to take precautions against residents seeking to depart from its ordinary use by sitting on the balustrade.

35. As I have mentioned, I am not satisfied that any of the suggested measures to alleviate the risk were reasonably required. Nor am I satisfied that any of the measures other than, perhaps, substantially raising the height of the balustrade, would have been likely to have materially alleviated the risk even if adopted. Raising the height of the balustrade or totally enclosing the balcony may have been effective but, for the reasons previously given, I do not accept that the contract between the parties imposed a duty on the respondent to go beyond the prevailing standard by taking steps of that kind.

36. In my opinion, no appealable error has been demonstrated.

37. I would dismiss the appeal.

I certify that the preceding paragraphs numbered one (1) to thirty-seven (37) are a true copy of the Reasons for Judgment herein of his Honour, President Crispin.

IN THE SUPREME COURT OF THE ) No. ACTCA 33-2002

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

38. This appeal is another example of working through the consequences of the change in the law of occupier's liability brought about by High Court decisions of the 1980s (Papatonakis v Australian Telecommunications Commission [1985] HCA 3; (1985) 156 CLR 7 and Australian Safeways Stores Pty Ltd v Zaluzna (1987) 162 CLR 479). In this case, the person injured was a fee-paying, resident student at the college at the Australian National University where the accident happened.

39. This is an appeal by Skye Helen O'Meara (the appellant) against a decision of the Master of the Supreme Court dismissing a proceeding for damages for personal injury against the Dominican Fathers (the respondent) (Skye Helen O'Meara v Australian National University & Dominican Fathers [2002] ACTSC 115). The proceeding against the Australian National University had been settled prior to the hearing before the Master. In the main, the primary facts found by the Master are not in dispute.

40. For many years, the respondent has conducted the John XXIII College, a residential college at the Australian National University in Canberra. The appellant was a twenty-one year old fee-paying resident of the College and a student of fine arts at the University at the time of the accident. She had been resident at the College since 1994. She had been selected as one of eight senior students in 1996. She had attended a sports dinner at the College dining hall on the evening of 25 October 1996, and had then adjourned with other students and guests to the Tavern Bar area which was on the first floor of the College. Alcohol had been consumed during the evening. At around midnight, the Tavern Bar was about to close and the appellant joined other people on an outside balcony close to the bar area. She was wearing a ball gown and high heeled shoes, which she said were uncomfortable. The appellant endeavoured to sit on a balustrade or ledge. This was a difficult manoeuvre because of the height of the balustrade. As she attempted to lift herself backwards up onto a seating position on that ledge, she fell over backwards. She said 'The ledge was above my bottom and I stuck my hands on it and I lifted myself up. My shoe, I remember my shoe hitting the back of the wall and immediately falling over.' The appellant fell some metres to a garden area below the balcony. The appellant suffered serious injuries and was conveyed, by ambulance, to Canberra Hospital where she underwent immediate surgery.

41. The balustrade was constructed as part of the College building in about 1967. It met the standards of the relevant building codes at the time of construction. At that time, the Building Code provided that:

'A hand rail or balustrade shall be provided along the side of any required balcony or the like and that the hand rail or balustrade wall be fixed at a vertical height of not less than 835 mm above the floor surface of the balcony or the like.'

42. There was a slight discrepancy between the experts as to the height of the balustrade - one said 870 millimetres and the other said 880 millimetres. Each agreed that there was no minimum width requirement in the Building Code. The balustrade was erected along the length of a walkway which extended well beyond the place of the accident in both directions. Although apparently part of a walkway, the area in the vicinity of the accident also acted as a balcony. It was a congregating point for students, particularly at lunchtime and during functions. Tables and chairs were provided by the respondent in the vicinity.

43. A bar or tavern had operated in the common room area adjoining the first floor balcony area of the College since at least 1981. Originally a small room ran off the junior common room, at the opposite end from where the present bar is situated. It served as a bar and storage area for alcohol that was consumed at functions at the junior common room. The present Tavern Bar was installed some time between 1989 and 1992, which involved changing the position of the bar and expanding the facility. At that time, the relevant regulatory agency, the Registrar of Liquor Licences, required that the building work, including requirements for balustrades, comply with the current Building Code of Australia.

44. The present Building Code of Australia came into force in the Australian Capital Territory in 1993 and requires a minimum height of one metre for a handrail or balustrade where there is a vertical drop greater than three metres. The vertical drop from the balcony to the ground floor level in this case was measured as 3.46 metres. A draft of the Building Code had been settled and published in 1990.

45. There was no evidence of any prior falls from that, or, indeed, any other similar, balustrade from the opening of the building onwards.

46. In our opinion, the critical question on this appeal is whether the Master ought to have found that the respondent knew that there was a general practice of students using this area to sit on the balustrade. If the respondent was aware of that practice, and took no steps to prevent it, liability ought to have been found.

47. So much was acknowledged by the Master in his judgment. He referred to Wood v Postnet Pty Ltd [2002] ACTSC 48 in which he had found the operator of licensed premises liable in circumstances where that operator acknowledged that it knew that patrons regularly exited from a first floor window in order to get fresh air by standing on an awning. As the Master correctly pointed out, it was the plaintiff's case that students regularly used the ledge as a seat, and that the respondent was aware of that fact. Had he accepted that there was such awareness on the part of the respondent, he would certainly have found the respondent liable both in tort, and in contract.

48. The Master found that from time to time some students sat on the top of the balustrade in the vicinity of the accident, using it as a seat. However, he concluded that it had not been established that the College authorities knew this. This latter finding was challenged on behalf of the appellant. The finding was made after considering the evidence which was led on either side and, so far as it goes, it was expressed in conventional terms in a manner which cannot be criticised and would normally be unimpeachable.

49. As the appellant challenged the Master's findings of fact, it is useful to set out some details of the evidence before him. The appellant called a number of witnesses who gave evidence as to the practice of students sitting on the ledge, from time to time, since at least 1994. She herself said that she had noticed persons in the general area to be seated on the concrete ledge 'regularly'. She said that 'large numbers' of people sat on the ledge, most of them sitting backwards with their legs facing inwards but some with their legs dangling into the courtyard as well. She said that she had seen students sitting on the ledge during meals, and conversing with students who were sitting on the tables. She could not recall any occasion when a person in authority, such as the Master, had come by.

50. The appellant also called a former student, Ms Skye Mabel Brown to give evidence regarding this issue. Ms Brown was asked whether she could recall students who congregated in the area having sat on the ledge or balustrade. She replied:

'It's hard for me to say positively because it was, you know, it was quite a long time ago, but yes I think that was correct.'

She said that on the occasions that she had seen students sitting on the ledge, their feet had been off the ground. It was suggested to her in cross-examination that it was a rare occurrence for people to sit on the ledge at social functions. She replied:

'That wouldn't be how I recall it. I would recall it that it was quite a common thing.'

She said that she herself had sat on the ledge. It was not comfortable, but there was nowhere else comfortable to sit. She concluded her evidence on this point by saying that, as best she could recall, people sat on the ledge 'quite regularly, both during the day, and at functions'.

51. The third witness to give evidence on behalf of the appellant on this issue was Mr Kimberley Manns. He had been a resident at the college between 1994 and 1996. He was asked whether, on occasions, when he had been to social functions, and had repaired to the balcony area he had noticed whether people sat on the concrete ledge. He said that they had and that this was 'a regular occurrence'. He said that it happened at all sorts of times, during the day and during the evenings. He recalled having been told by the Master, on one occasion, to keep the noise down. He was asked whether at that time anyone was sitting on the ledge. He replied 'that there would have been, yes'. He could not recall the Master telling any of them to get off the ledge.

52. Under cross-examination, Mr Manns resiled somewhat from his evidence-in-chief regarding the Master's complaint. He said that when Father Waite came out of his study, and told the students to keep the noise down, he could not recall whether anyone had been sitting on the ledge on that occasion. He could recall that they were 'leaning against the ledge'.

53. The next witness called on behalf of the appellant in relation to this issue was Ms Alison Jane Ryan. She gave evidence that prior to the occasion when the appellant sustained her injuries she had attended social functions, and gone out onto the balcony area. She was asked whether she had seen people sitting on the ledge. She replied 'Yes, certainly along the balcony, people would lean against that and sit there'. She said this was a 'regular occurrence'. She also said that it was common for people to sit on the tables, put their legs on the place where students normally sat so they would be facing out and then other students would congregate along the ledge, and converse with these people. She reiterated that it was common that people would sit on the ledge.

54. The final witness called on behalf of the appellant regarding this issue was Ms Claudia Anne Kearne. She had been a student at the college in 1995 and 1996. She said that it was a 'common occurrence' for people to be sitting on the ledge in the balcony area. Those people had their feet off the ground when this took place. It occurred both during the day and on social occasions.

55. The respondent's witnesses included the Deputy Master of the College between 1981 and 1983 and Father Colin Fowler. There were also two independent witnesses called on behalf of the respondent on this issue. Ms Danielle Smith, who was President of the Residents Association at the time the appellant was injured, and who attended the dinner, said she could not remember anyone having sat on the ledge. She conceded, however, that she had seen students leaning against it.

56. Mr David Issacs said that he had seen students sitting on the ledge, but only along a stretch of the balustrade that was directly above the roof of a ground floor structure. That meant that anyone falling from the ledge would be exposed to only a minimal drop.

57. Father Colin Fowler was the main witness called on behalf of the respondent. He had been in residence at the college from April 1996, and became Master in September of that year. During that period, he was the Deputy Master, but his main duties were as Acting Chaplain on the campus. His office in College was on the ground floor but his residence was on the fist floor.

58. Father Fowler said that during the period between April 1996 and 24 October 1996 he moved around the area of the College generally every day, and would cross the balcony area to get to the dining room several times each day. He saw students in the vicinity of the ledge on many occasions but never saw them sitting on top of the balustrade. He acknowledged, however, that he had noticed students leaning up against the balustrade from time to time, though always with their feet on the ground.

59. There was a direct conflict of evidence between Father Fowler and one of the students called for the appellant. That conflict was resolved in favour of Father Fowler. Apart from that, the Master found that all witnesses were endeavouring to tell the truth.

60. Counsel for the appellant made the point that the respondent only called evidence from staff of the College as to the period between 1981 and 1983, and the period from April 1996 onwards. He submitted that the period in between was of considerable significance, particularly as planning and giving effect to the relocation and reconstruction of the Tavern Bar took place during that period. Further, evidence as to the period from April 1996 was called from only one staff member with limited experience at the College. He submitted that a Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 inference ought to have been drawn in favour of the appellant in relation to the respondent's failure to call other evidence of what was known to College authorities regarding the use by students of the balustrade as a seat near where the accident had occurred.

61. Counsel for the respondent relied upon the fact that no evidence was called on behalf of the appellant regarding this supposed use of the balustrade as a seat prior to 1994. It was in that period that planning for and execution of the relocation and reconstruction of the Tavern Bar had taken place. The only evidence led regarding that issue had been from students, including the appellant, who attended the College at the time of the accident. No students who attended the College between 1989 and 1993 gave evidence of any such practice. He submitted that the respondent bore no onus of proof on this point, and was only called upon to answer that which was led against it. He further submitted that the express finding by the Master covered the period from April 1996. Even if a Jones v Dunkel inference were to be drawn, it could not 'supply' evidence. Accordingly, no inference of knowledge on the part of the College authorities could be drawn.

62. Counsel for the appellant responded by submitting that the evidence from the appellant's witnesses who spoke of the practice of sitting on the ledge or balustrade, which was implicitly accepted by the Master, certainly pre-dated April 1996 by a significant period. Further, it could be presumed that a practice of that nature would not have suddenly sprung up, but would reflect student conduct in previous times. He submitted that the practice must have been part of the culture of the College. He also submitted that there was unchallenged evidence that the use of the balcony area in the immediate vicinity of the accident as a congregating point for students, both during the day, and at functions in the junior common room, was well established and known to the College authorities. He pointed out that a student called by the respondent gave evidence that he had seen students using the balustrade as a ledge to sit on, albeit in an area where there was no substantial fall on the other side. He submitted that the only proper inference was that the responsible authorities had knowledge of the practice or, alternatively, that they should have been aware of it.

63. In our opinion, the evidence led by the appellant (that the balustrade had been used as a seat by some students since at least 1994), if left unanswered, was sufficient to found an inference that this practice had existed previously. The evidence was left unanswered. There was no explanation from the respondent as to why it called no evidence regarding lack of knowledge of this practice relating to the critical period, namely that between 1989 and 1993. Accordingly, the appellant was entitled to the benefit of the inference that such evidence was not led because it would not have assisted the respondent on this issue. That circumstance should also have been brought to account in assessing the evidence of Father Fowler, who had been the Deputy Master, and then Master of the College. He was in no position to give evidence regarding the knowledge of the College authorities prior to April 1996. No other responsible supervisor was called to deny knowledge of the practice. If the appellant was entitled to a finding of knowledge pre-April 1996, it is difficult to see how that situation could be displaced thereafter without calling witnesses other than the newly arrived Deputy Master. Moreover, there was no explanation for the failure to call any witnesses, other than Father Fowler, regarding the period between April and October 1996.

64. As stated above, an important issue that the Master had to determine was whether the College authorities had actual knowledge of the practice of students using the balustrade as a seat. It must be emphasised that the Master accepted that this practice existed, and was not therefore engaged in conjecture about knowledge on the part of those authorities of a hypothetical practice. In our opinion, the Master was required when resolving this issue to have regard to the respondent's failure to lead evidence relating to the knowledge of those responsible for student supervision at the College prior to April 1996. He was also required to have regard to that same failure to lead evidence regarding the knowledge of those staff members (other than Father Fowler) between April 1996 and the accident.

65. Proof of knowledge on the part of the College authorities could only be based on direct evidence, or inference. There was no direct evidence. Nonetheless, the appellant was entitled to rely upon the ordinary principles of circumstantial evidence as an alternative method by which to demonstrate such knowledge. The more frequent the practice of sitting on the ledge might be, the more likely it would be that some person employed by the College in a management role would have observed what was happening.

66. In the ordinary course, it would be expected that the existence of such a practice would have come to the attention of at least some of those responsible for student supervision over the many years that had passed since Tavern Bar first came into existence. Here, there was no secret about the fact that students were using the ledge to sit on. It was hardly surprising that they would do so. Young persons, particularly those who have had too much to drink, are notoriously prone to foolish behaviour. Father Fowler had seen students leaning against the ledge. It is but a short step from leaning against a structure of that kind to sitting upon it.

67. If the only evidence in this case had been that students regularly used the ledge as a seating area, it would be open to infer that someone associated with the management of the college must have seen that happening at some stage throughout the many years that it had been occurring. However, merely because an inference is capable of being drawn, does not mean that the inference should be drawn. Had the College called a number of members of the staff to say that they had never seen any students sitting on the ledge, and had their evidence been accepted as truthful, the Master would have been entitled to regard the inference for which the appellant contended as one that had been rebutted.

68. The position is different, in our view, when the respondent, with full knowledge of the strength of the evidence regarding the practice of students sitting on the ledge, elected to call only Father Fowler, in addition to Ms Smith and Mr Issacs to rebut the inference that would logically be drawn from the existence of the basic fact. When students regularly sit on a ledge, it may be presumed, in the absence of any evidence to the contrary, that this fact is known to at least some members of the College staff. When the only member of the College staff who is called to give evidence is a person who was only at the College for a few months prior to the unfortunate incident giving rise to the appellant's injuries, and no explanation is provided by the respondent as to why none of the other members of the staff were called to give similar evidence, the rule in Jones v Dunkel can, and in our view should, be applied.

69. It is unnecessary, in this appeal, to set out in detail the authorities which govern the operation of that rule. It is sufficient to note simply the following propositions:

• the unexplained failure by a party to call witnesses may, in appropriate circumstances, lead to an inference that those witnesses would not have assisted that party's case: O'Donnell v Reichard [1975] VicRp 89; [1975] VR 916 at 929;

• the rule permits an inference that the uncalled witnesses would not have helped the party who failed to call them, and entitles the trier of fact to take that into account in deciding whether to accept any particular evidence which relates to a matter on which those witnesses could have spoken;

• in particular, the rule entitles the trier of fact the more readily to draw the inference fairly able to be drawn from the other evidence by reason of the opponent being able to prove the contrary had the party chosen to call evidence. However, the rule does not permit an inference that the uncalled witnesses would in fact have been damaging to the party not calling them. In other words, the rule cannot be employed to fill gaps in the evidence, or to convert conjecture and suspicion into evidence.

• the rule only applies where a party is 'required to explain or contradict' something: Jones v Dunkel at 321. What a party is required to explain or contradict depends on the issues raised by the pleadings, and by the course of evidence in the case. If a party bearing the burden of proof on an issue has called no evidence to support that party's claim, the opponent is not required to answer.

• the rule does not require a party to give merely cumulative evidence.

70. Evidence from only two supervisors for limited periods was an unsafe foundation for a finding of lack of knowledge (Jones v Dunkel per Kitto J at 308, Menzies J at 312 and Windeyer J at 320-322; Widera v Reid [2002] ACTCA 3 at [21]). This reflects the fundamental point that

'[A]ll evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other side to have contradicted'

(per Lord Mansfield in Blatch v Archer [1774] EngR 2; (1774) 1 Cowp 63 at 65 cited by Isaacs J in Morgan v Babcock and Wilcox Ltd [1929] HCA 25; (1929) 43 CLR 163 at 178).'

In our view, the present case was one that cried out for the respondent to meet the appellant's contention that there was a regular practice of students sitting on the ledge that must have been known to at least some members of the College staff. Almost every witness called on behalf of the appellant gave evidence of this practice, and the respondent's witnesses were cross-examined extensively upon the subject. The issue was raised in the pleadings, and the respondent could not claim to have been taken by surprise. There must have been a significant number of members of the College staff who were in a position to give evidence regarding their knowledge of this 'practice', yet with the exception of Father Fowler, none were called. There was no explanation for the failure to call these witnesses. The appellant could not have been expected to call them - they were very much in the camp of the respondent.

71. In the present case, the Master had to determine whether to draw the inference for which the appellant contended, or to decline to draw that inference. His judgment proceeds upon the assumption that the evidence of Father Fowler was sufficient to rebut the inference that was otherwise open. In our view that assumption was misplaced. A proper application of the rule in Jones v Dunkel would have led the Master to conclude that the inference that was open ought to be drawn. We emphasise that this is not a matter of conjecture or suspicion. Nor is it a matter of using the rule as a substitute for evidence. The evidence was there - it was just a question of what weight ought to have been accorded to it. Each case must depend upon its own circumstances, but this was a case in which the inference ought to have been drawn.

72. Our conclusion regarding this matter is, if anything, strengthened by certain evidence given by Father Fowler. It was submitted that this evidence amounted, in substance, to an admission, binding upon the respondent, that it either knew, or ought to have known, about the practice. The submission was based primarily upon the following passage of evidence from Father Fowler:

'And of course the only sort of seating that was provided in that area were these two tables with the bench seats associated with them, would that be correct? --- Yes.

So that's a total of 16 positions for seating? --- Yes.

And we have, what, you say 40 or 50 or 50 or 60 [sic] people congregating out there from time to time, is that not correct? --- Yes.

So for the vast majority of them there's no place for them to sit whilst they're there? --- That's right.

Did you observe any of them leaning against the balustrade or the ledge? --- That was quite common, yes.

That was common, was it. And so it may well be, you could appreciate that it may well be that somebody during the course of that evening might be tempted to use the ledge as a seat if there was no other seating available, is that not correct? --- That could be a temptation to do that, yes.

And there could be a temptation on the part of students who might congregate in that area at other times when the numbers were in excess of that which could be accommodated at the two tables to also be tempted to use the ledge as a seat? --- Yes, if numbers were so large, yes.

And, of course, you were aware of that at the time that you came to the college up until the time of this accident, is that not correct? --- Aware, I'm, sorry aware of what?

You were aware of that - that that could well be a temptation? --- Well I'm not sure if I was aware of it then, you've made me aware ---

What you - but from the nature of the ledge itself, there clearly was a temptation for someone where there wasn't anywhere else to sit to perhaps endeavour to use it as a seat. You were aware of that weren't you? --- I was aware that people would lean against it.

And you were aware that they might, in certain circumstances, be tempted to use it as a seat if, in fact, there were larger numbers and could be accommodated at the two tables? --- I'm not sure I can say I was aware of it at the time.

Well you were - you can appreciate it then can't you, if you've turned your mind to it? --- I can, I can.

If you'd have turned your mind to it you would have appreciated that that was a real possibility, is that not correct? --- Yes, my mind wasn't turned to it because I'd never noticed people doing that.

Yes, but if you had applied your mind to it, you would've put two and two together and saw that there was a possibility that that sort of thing could occur? --- If I had applied my mind, yes.

And there was no - at any stage the college didn't provide any prohibition against anyone doing such a thing, did they? --- No.

And didn't warn them that there was a potential danger for people who might be sitting on the bench - on the ledge? --- No.

And I suppose people or students who were attending a social function, where there had been the consumption of alcohol might be even more tempted, in your mind, to resort to sitting on the ledge as a seat if, in fact, there were no seats available at the two tables? --- Recklessness might lead them to do that, yes.

Because of the consumption of alcohol? --- Yes.'

73. Father Fowler was in charge of supervising the general area during the evening. The Master accepted his evidence that he did not see any student sit on the balustrade, either on that occasion, or on any previous occasion. However, as indicated earlier, Father Fowler had only been at the College for about six months prior to the accident. The following evidence shows the limited nature of his experience :

'And on social occasions such as the sports dinner that was held on this particular night, were there other such occasions that you went to during your tenure there? --- Yes, there would have been at least one other formal dinner followed by a bar night in that period, yes.'

74. As one of the main reasons for calling Father Fowler was to establish that the College authorities were not aware of the practice of students sitting on the ledge, the cross-examination was legitimate and the answers probative. Whether or not an out-of-court statement by Father Fowler to the same effect could have been tendered as an admission against the respondent is not to the point. There was no objection to the cross-examination. However, the Master appeared to give this evidence little weight, treating it as based largely upon hindsight. The correctness, or otherwise, of that approach must be determined in this appeal.

75. It is reasonably apparent from Father Fowler's evidence that had he turned his mind to the practice of students using the balustrade as a seat, he would have recognised the clear dangers involved. Those dangers would have been accentuated in the case of students affected by alcohol. That was also the view of the Master, as appears from his reasons for judgment.

76. The other question of primary fact that was seriously in issue was the extent to which the appellant was affected by alcohol at the time of the accident. Her evidence was that she had drunk about four or five glasses of wine with her meal, and then one or two beers in the common room area. She agreed in cross-examination that she did not feel as though she could safely drive a motor vehicle. Over objection, the Master admitted the report of a blood sample taken in hospital, showing a blood alcohol concentration of 46.2mmol/L. A consultant pharmacologist who gave evidence for the respondent said that this reading, which was taken at about 1.30 am, translated into a concentration of 0.21 in the more familiar form of alcohol concentration used for the purposes of the drink driving legislation. In her opinion, the appellant's blood alcohol concentration at the time of the accident was in the range of 0.167 to 0.202. This indicates that the appellant was substantially affected by alcohol at the time of the accident.

77. The Master concluded as follows:

'It seems to me unnecessary to make a precise finding of fact as to the state of the plaintiff's sobriety at the point of the accident, beyond the finding that it is common ground that she had consumed alcohol to the point where her judgment was affected - on Dr Dauncey's evidence due to her high range blood alcohol concentration of between 0.16 and 0.2, and on the plaintiff's evidence that it was her assessment of her state of sobriety that she would not have been able to drive.'

78. Counsel for the appellant submitted that the report, and the evidence of the consultant pharmacologist that related to it, should not have been admitted. In one sense, the issue was not critical to the determination of the case on liability. It was, however, of sufficient importance to the overall case to require this Court to determine the ground of appeal that complains about its having been admitted.

79. The Canberra Hospital produced records in relation to the appellant's admission on the night in question, and her subsequent treatment until discharge. The records were admitted in evidence, subject to certain exclusions. The records, generally speaking, were clearly admissible pursuant to s 48(1)(e) of the Evidence Act 1995 (Cth) ('the Evidence Act'). No evidence was called from the hospital to explain the format of the notes, or how they should be understood. It is permissible to examine the records, and to draw any reasonable inferences from them in determining questions about the application of the Evidence Act to those documents (s 183).

80. The documents fall into various categories. Five pages in the one typeface provide a series of reports, all resulting from the one request made at 1.30 am and which, plainly enough, are together a report analysing a blood sample or samples taken in response to that request. One report is titled 'Therapeutic Drugs (C Drug)'. The substance of the report was as follows:

Ethanol Comment: An Ethanol level of greater than 20 mmol/L indicates acute intoxication. It is NOT a medico-legal test and can only be used for clinical purposes.' (emphasis added)

The report was admitted over objection at the trial, but the ethanol comment was rejected. There was no cross-appeal in relation to the rejection of the ethanol comment.

81. The first objection on appeal (as at trial) was that the report stated an opinion, rather than a fact, and that an opinion is not an 'asserted fact' for the purposes of the business records exception to the hearsay rule provided by s 69 of the Evidence Act.

82. Whatever difficulty there may be in distinguishing fact from opinion in other contexts, the statement in question here is, in our view, clearly an asserted fact. In saying this, it should not be thought that we accept that an opinion is not an asserted fact for the purposes of these provisions. It is not necessary to go into that question for present purposes. It follows from our conclusion that the opinion rule, also relied upon by counsel for the appellant, is irrelevant.

83. It was also argued at trial, and incorporated in the argument on appeal, that the document did not prove itself. The precise nature of the test, the means by which it was undertaken, the person who supervised it, the reliability of the test, and so on, were not established. Counsel for the appellant relied upon the decision of Bryson J in National Australia Bank v Rusu [1999] NSWSC 539; (1999) 47 NSWLR 309, particularly at 315-318.

84. The evidence of the expert pharmacologist did throw some light upon the issue. That evidence was as follows:

'It may well be that it's - that the reading is wrong at the hospital. Is that not a possibility? --- I don't think I'm in any position to comment on that.

You've looked at that note which doesn't appear to have any authorship, it doesn't sort of tell us anything about how the sort of, the test was done or what protocols were followed, is that not correct. It's just a bland statement? --- I presume it is a fully credited laboratory and I can say no more than that.

But it is basically a bland statement that tells us nothing about the processes that were undertaken in producing the sample or by whom it was produced, or who produced the figure? --- Do you mean the lab results?

Yes? --- Well I think they were just presented as lab results really, there is never any story associated with them, who did it and so on. It is just an automated function - they put it in the auto analyser and it's done.

And there can be errors - - -? --- Look, I really don't know anything about the error rate at that particular venue.

Well in your experience there are errors from time to time in hospitals? --- In my experience with the Division of Analytical Laboratories in Sydney there aren't errors, no.

Well you say you have no knowledge of errors in relation to the Canberra Hospital? --- No, no, I don't know.

You could conceive though of errors couldn't you, in certain circumstances, say at 1.30am in the morning? --- I would presume that being an accredited laboratory which they would have to be, would mean that those sorts of things would be controlled. But I'm in no position to comment truly. I just don't know.'

She had confirmed earlier that the one blood sample would have been taken at about 1.30 am.

85. There is no doubt that the judgment of Bryson J in Rusu provides some support for the appellant's submission on this point. In that case, his Honour appeared to hold that the fact that a bank had produced copy bank statements on subpoena did not prove that they were bank statements of the relevant account that was identified on them, and that further proof of authenticity was required. We have considerable doubt as to the applicability of that decision to the present circumstances. Admissibility of evidence is to be judged on the balance of probabilities (s 142), with the benefit of the inferences to which we have already referred (s 183), with the facilitating provisions of s 48 and (in the present case) s 146, dealing with evidence produced by processes, machines and other devices. Rusu may also be at odds with the thrust of the judgments in Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542, per Hope JA at 547-550 and Hutley JA at 565-571, although the text of the legislation there in question differed from the Evidence Act. Albrighton does not seem to have been cited to Bryson J in Rusu.

86. The exploration of these issues on the appeal was economical. For example, counsel made no reference to s 146. This is not entirely satisfactory, as the point raised is of considerable importance in relation to the tender of test results generally, and throws up a fundamental point about the operation of the Act in that connection. The hearsay rule is contained in s 59, which is in the following terms:

'59. The hearsay rule - exclusion of hearsay evidence

(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation.

(2) Such a fact is in this Part referred to as an asserted fact.

(3) Subsection (1) does not apply to evidence of a representation contained in a certificate or other document given or made under regulations made under an Act other than this Act to the extent to which the regulations provide that the certificate or other document has evidentiary effect.'

87. That section only relates to a previous representation made by a person. This highlights the need for the source of that asserted fact to be tied back to a person who had, or might reasonably be supposed to have had, personal knowledge of the asserted fact, by virtue of s 69(2). The substantive effect of s 69 is that the hearsay rule does not apply to the evidence. There is a good deal to be said for the view that, at the time of the tender of these records, not enough was known about them to enable the necessary findings to be made. There was no direct evidence as to whether the test was machine-generated or whether a person interpreting the result of the test recorded it. If the former, it was not hearsay evidence at all. If the latter, it was.

88. However, in our opinion, the evidence of the pharmacologist makes it probable that the record was the direct output of a process within the meaning of s 146, and so was not caught by the hearsay rule at all. The question was whether s 146 was satisfied, with the assistance of s 147 and s 183. The test formed part of the records of the business conducted by the Canberra Hospital. It can be inferred from the sequence of the documents, and the times recorded upon them, that the test was done in-house: there was not enough time to refer it out. The evidence of the pharmacologist, together with the fact that the device in question was utilised in the ordinary course of the business of the hospital, would provide a foundation for the inference that it would ordinarily produce a reliable outcome of the kind shown. In that event, subject to relevance and any separate basis for exclusion, the record was admissible.

89. One matter to which the parties do not appear to have adverted is the note on the record that was excluded. We refer, in particular, to that part of the note that indicated that the result was not to be used for medico-legal purposes, but, rather, for clinical purposes only. That note does raise an obvious question as to the reliability of the result. It is also apparent from the cross-examination of the pharmacologist that there may be a significant variation in the application of the raw result to the circumstances of individuals. Whilst the test result had the potential to have significant probative weight, it carried very little on the evidence as it stood at the time of the objection, and the position did not materially change after the evidence of the pharmacologist.

90. The only apparent ground for exclusion was the general discretion to exclude evidence provided by s 135 of the Evidence Act. The cautionary note on the very record itself graphically underlined the appeal to that ground by counsel for the appellant. So too did the lack of explanation as to the provenance of the document, apart from its location in the records of the hospital, and what could be gleaned from looking at the document itself. Hospital records can often be sensibly interpreted, in whole or in part, without the need to call evidence. However, without knowing any more about this document, there was the plain potential for it to be misleading or confusing. Further, without knowing anything more about the document, the appellant would be hampered in making enquiries about, and leading evidence concerning the operation of, any of the tests that were recorded. This might amount to unfair prejudice. On that issue, the analysis by Bryson J in Rusu, to which the Master was referred, is of significance. There is much to be said for the view that the records should have been rejected, pursuant to s 135, absent an explanation as to precisely what test was undertaken, by what machine and with what history of reliability. That evidence should have included an explanation for the cautionary note on the test result.

91. The Master rejected an argument that failure to have a building that complied with the then current Building Code amounted to a breach of the common law standard of care. He relied upon the decision of the High Court in Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166, and distinguished the decision of Higgins J (as he then was) in Cardone v Trustees of the Christian Brothers [1994] ACTSC 85. The Master then went on to consider what he described as the obligation which the respondent, as the occupier of the premises, owed to the plaintiff as a residential tenant, and a person lawfully on the premises, to enjoy a social occasion as:

' "... a duty to take reasonable care to avoid foreseeable risk of injury ... The nature and extent of the duty in the particular instance depends upon the circumstances of the case." (per Dawson J in Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 at 343).'

92. After considering various arguments advanced on behalf of the appellant, the Master said:

'22. It must be recalled that the evidence here is not that the balcony gave way or in some way collapsed. The evidence is that the balcony has been in the form it was on the night of this accident since the college was built in 1966. Various witnesses for the defendant gave evidence that there had never been a fall from this balcony. The plaintiff fell as she attempted to push herself up backwards, dressed in a ball gown and evening shoes, after an evenings socialising in which alcohol had been consumed. The defendants case is simply that the plaintiff, her judgment affected by alcohol, misjudged her foolhardy attempt to hoist herself up to sit on what was obviously a dangerous position, being an attempt to balance to sit on a first floor balcony.

23. On this basis the defendant says simply that the cause of her injury was her decision to try to sit on the first floor balustrade while intoxicated. ...'

The Master then set out a short summary of, and a passage from, the decision of this Court in Postnet Pty Ltd v Wood [2002] ACTCA 5, which related to causation, and said that in that case it was held that although the injuries suffered by the respondent could be traced back to the defendant's wrongful conduct, they were the immediate result of unreasonable action on the part of the plaintiff and not attributable to the defendant. The Master then said:

'It seems to me that the same can be said here.'

93. The Master then considered whether, as contended for on behalf of the appellant, innkeepers bore a special duty of care in relation to the safety of patrons which could be applied by analogy, relying upon decisions of the New South Wales Court of Appeal in Desmond v Cullen [2001] NSWCA 238 and South Tweed Heads Rugby League Football Club Ltd v Cole [2002] NSWCA 205; (2002) 55 NSWLR 113, together with the decision of the English Court of Appeal in Barrett v Ministry of Defence [1994] EWCA Civ 7; [1995] 3 All ER 87. This included the fact that the College policy of not serving alcohol to the point of intoxication or, in fact, beyond 0.02, was apparently not adequately enforced on that night.

94. The Master observed that the appellant's conduct, in attempting to hoist herself up onto a balustrade located so high above the ground, in order to sit on it, was obviously dangerous. He rejected an argument that there should have been a warning by way of signage, given the obvious risk presented by balancing on a first-floor balustrade, citing Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431, particularly per Kirby J at 478, and Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9; (2002) 208 CLR 460, particularly per Gleeson CJ at [43]. He held that adult patrons did not need a sign to warn them that it was unwise to sit on a narrow balustrade above a drop of in excess of four metres (referring to Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512, particularly per Gaudron, McHugh and Gummow JJ at [63]).

95. However, there was an important rider to that finding. The Master said (at [37]):

'... The situation may be otherwise, however, if it be established on the evidence that the defendant knew that there was a general practice of students using this area to sit dangerously on the balustrade, and if the College, knowing of this dangerous practice, took no steps to prevent it and avoid the obvious risk of a student falling.'

This was supported by an analysis of the decision in Postnet Pty Ltd v Wood referred to above, where a nightclub operator knew that patrons regularly exited from the first floor window, to get fresh air by standing on an awning, and took no steps to prevent it. The Master had found the occupier liable in those circumstances, when there was a fall by a patron. The Court of Appeal reversed that finding because the fall was from adjoining premises. However, the Court of Appeal agreed that, had the plaintiff slipped or fallen from the defendant's premises after exiting through the window, liability would be made out, notwithstanding the dangerous situation. It was in that context that the Master made the finding that he did as to the lack of knowledge on the part of the College authorities of the practice of students sitting on the balustrade.

96. The Master's judgment on liability concluded as follows:

'49. ... On the evidence I am not satisfied that the college authorities had actual knowledge that some students would engage in this activity, and I am not satisfied that, although in hindsight Father Fowler acknowledged the possibility, the college ought to have taken precautions against students engaging in an obviously dangerous activity, and using part of the premises for an inappropriate purpose. Mere foreseeability does not of itself create a duty of care. As the New South Wales Court of Appeal recently observed in Richmond Valley Council v Standing [2002] NSWCA 359 whether a defendant owes a duty of care to a plaintiff depends on whether there is a reasonably foreseeable risk of harm to a plaintiff exercising reasonable care for her own safety. As Kirby J said in Romeo_, an occupier of premises_

"is generally entitled to assume that most entrants will take reasonable care for their own safety" (1998) 192 CLR 431 at 478 [123]

50. I am therefore not satisfied that the plaintiff has established that the defendant was in breach of a duty of care, in tort or contract, and I direct that judgment be entered for the defendant. While the contractual claim was not canvassed extensively in addresses, it seems to me that the extent of an implied contractual term for the College to care for the plaintiff as a tenant also presumes the tenant taking appropriate care for herself. ...'

97. Counsel for the appellant put her case in a number of ways. We shall refer only to the arguments of substance. The first was that the Master did not analyse the issue in terms of duty, breach and causation, in accordance with the principles laid down in Wyong Shire Council v Shirt [1980] HCA 12; (1979) 146 CLR 40, which were approved and applied in Romeo and Brodie. If he had, he must have found that the risk was foreseeable, particularly if he had correctly analysed the evidence as to the respondent's knowledge of the practice of students sitting on the balustrade. In addition to the direct evidence, and the available Jones v Dunkel inference, the area was a known congregating point for students, with chairs and tables provided. Counsel also relied upon the admissions of Father Fowler, which we have discussed. Once that foreseeability of risk was found, a finding of breach would surely follow. The risk of someone falling a substantial distance, with a significant possibility of serious injury, was obvious. The responses available were simple, straightforward and not costly. Precautions could have included removing the chairs and tables, prohibiting the use of the balustrade as a seat, publicising the prohibition, providing an appropriately placed warning sign, increasing the height of the balustrade in the relevant position, or otherwise physically preventing persons from sitting on the balustrade. In that context, it was noted that after the accident a barrier had been added to the balustrade, which prevented persons sitting on it, a warning sign had been erected, and the chairs and tables had been removed.

98. Next, it was submitted that the Master had erred in rejecting the argument that there was a breach involved in not adopting measures provided for by the new Building Code, which had been introduced in 1993 and published in draft form for some years before that. It was submitted that the Master was bound by the decision of Higgins J in Cardone, and that Jones v Bartlett, which was not a contractual case, and did not relate to the running of a college of this type, was distinguishable. It was submitted that the new standards were relevant to the discharge of the duty of care imposed by the foreseeability of the risk. To take the new standards into account in that way would not give them retrospective operation.

99. It was then submitted that the appellant's claim in contract had not been properly considered. The relevant implied term was that the respondent had to ensure that the premises were as safe for the contemplated purpose as reasonable care and skill on the part of anyone could make them (Maclenan v Segar [1917] 2 KB 325). It was not sufficient to leave premises as they were without regard to changing circumstances. There was a duty to inspect. The respondent's duty to fee paying boarders included a degree of supervision of how the premises were utilised in order to make them safe. On that basis, the respondent ought to have observed the risk, and guarded against it, by preventing students from congregating in the area, and ensuring that the balustrade was of at least the height required by the amended Building Code. Alternatively, the respondent should have included a railing which would make it virtually impossible for persons to sit on it, of the type that had now been installed. It was submitted that there was no authority for implying a term that the appellant must take reasonable care for her own safety as an answer to contractual liability.

100. The appellant did not argue for an innkeeper's duty along the lines rejected in the decisions referred to by the Master. Rather, it was submitted that the College had organised a social activity of some importance, where alcohol was served free of charge, and the dinner was followed by a disco in the Tavern Bar, where more alcohol was provided. The respondent must have appreciated that there would have been some students at the event who would have been sufficiently affected by alcohol to have their judgment in relation to their safety adversely affected. Indeed, the Master of the College conceded this. This was an important factor to be considered in the reasonableness of the respondent's response to the foreseeable risk.

101. It was submitted that the reconstruction of the bar in the junior common room, with the different location and larger capacity, was an occasion when the safety of the area in question should have been reconsidered by properly briefed experts, in the light of the changing use, and in view of the proposed Building Code which had been publicised though not yet in force. If this had been done, proper precautions would no doubt have been taken.

102. Finally, it was submitted that the Master erred in determining that the appellant's injuries were not caused by the respondent's negligence.

(1) Irrespective of whether Cardone was inconsistent with Jones v Bartlett, the Master correctly rejected the allegation of breach by reason of failure to meet current standards. Neither Cardone nor Jones v Bartlett was in any way inconsistent with the decision below.

(2) When properly understood, the Master had not held that the respondent did not owe a duty of care to the appellant.

(3) The Master had balanced the key issues in deciding that there had been no breach of duty. He had recognised the obvious danger presented by sitting on the balustrade. He had balanced the possibility that persons who were affected by alcohol might be in the area, with considerations of personal responsibility and autonomy, in determining the question of reasonableness. It was submitted that a foreseeable risk did not necessarily extend to risks involving foolhardy or reckless conduct. The appellant was simply complaining about the result of the balancing process undertaken by the Master, which she did not like.

(4) The question as to whether the respondent knew of a practice of students using the ledge as a seat had been decided against the appellant. This was a finding of fact that had been open to the Master, and should not be disturbed on appeal.

(5) No error was demonstrated in the Master's approach to the contract count.

(6) The appellant had not established that she would have noticed, let alone acted on, a warning sign.

104. The argument for the respondent was refined somewhat during the course of the hearing. It was submitted that the Master had decided the case on the issue of negligence alone, rather than on the basis that there was no duty of care, or that causation had not been established.

105. Counsel for the respondent formulated the principal issue as being whether the proximity of the subject area (which was innocent in itself) to the Tavern Bar, and the congregation of people in the area adjacent to the balustrade, required the respondent to take precautions for the safety of students using this area. The initial answer was that the appellant could not establish a duty to address or anticipate potentially foolhardy behaviour by students affected by alcohol, at least in circumstances where there was no evidence of knowledge on the part of the College authorities that such behaviour might occur.

106. It was submitted that such admissions as were obtained in cross-examination from Father Fowler were properly characterised by the Master as merely the product of hindsight. Counsel pointed to the fact that many hundreds of students attended the College over the years, and yet there was no evidence of any such previous mishap. Jones v Dunkel did not allow for the inference that could be drawn in circumstances where the criteria were met to stand in the place of actual evidence. Counsel relied upon the obvious nature of the danger in various ways, whilst recognising that, to an extent, it was a two-edged sword. He submitted that it underlined the unreasonableness of obliging the College authorities to predict behaviour so foolhardy as to ignore the obvious danger. He submitted that there had been a sea change in the attitude by the courts in relation to personal responsibility, self-reliance and commonsense, illustrated by decisions in cases such as Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431, South Tweed Heads Rugby League Football Club Ltd v Cole [2002] NSWCA 205; (2002) 55 NSWLR 113, Woods v Multi-Sport Holdings Pty Ltd and Tame v New South Wales (2002 191 ALR 449, [2002] HCA 35. A reference to Tomlinson v Congleton BC [2003] UKHL 47; [2003] 3 WLR 705, particularly per Lord Hoffman at [34]-[37] and [44]-[49] might now be added.

107. Putting to one side, for the moment, the practice of students of sitting on the balustrade, we would not disturb the finding by the Master that the respondent was not liable in negligence. In our opinion, the decision of the High Court in Jones v Bartlett is inconsistent with the appellant's case in reliance upon the alteration of the Building Code, and the Master was correct to so hold. (See also Ahluwalia v Robinson [2003] NSWCA 175.) Cardone does not compel any contrary conclusion. It was the decision of a single judge upon a particular set of facts, and did not purport to lay down any general principle to be applied in later cases. If it stands for a proposition that is inconsistent with the decision in Jones v Bartlett, then, of course, it cannot stand to that extent. In the event, the decision is distinguishable on the facts. The accident in that case was caused by what amounted to a hidden trap, which was described as tripping hazard. The fact that the glass that shattered did not comply with the then current standard was only an exacerbating factor.

108. Further, we are not persuaded that compliance by the respondent with the change in the Building Code would have made any difference in the present circumstances. The required increase in height of a balustrade was small. Although it may have slightly increased the difficulty and awkwardness of using the balustrade as a seat, it was already difficult and awkward for a person of ordinary height to sit upon it.

109. We agree with the description of the premises in the vicinity of the accident by counsel for the respondent as 'unremarkable'. As with many parts of a properly designed and constructed building, there was scope for danger if a person were prepared to be reckless or foolhardy. The Master was correct to conclude that it was not, as a general proposition, necessary to take steps to guard against that risk. No doubt a duty of care at a very generalised level was owed to the appellant, the scope of which may have included guarding against the consequences of inadvertence or inattention. The conscious effort required to sit on this balustrade was far removed from that concept. The cases referred to in [69] above do reflect a shift in emphasis towards the acceptance of personal responsibility for action. The decision of the High Court in Romeo, referred to by the Master, was a rather stronger case on the facts than the present case. The reasoning of the majority in Romeo certainly supports the reasoning of the Master, as does the decision in Jones v Bartlett (see particularly Gleeson CJ at [21]-[25], Gummow and Hayne JJ at [176]-[182], Kirby J at [250]-[251] and Callinan J at [276]-[289]). (See also Ahluwalia v Robinson.)

110. Regard must also be had to the tendency of students to congregate in the relevant area. The respondent was fully aware of that fact, as was clear from the provision of tables and chairs in the vicinity of the Tavern Bar. Certainly, Father Fowler was well aware of that fact. Students regularly congregated during evening functions where alcohol was served. It could reasonably be anticipated that some students would be affected by alcohol.

111. However, we are not persuaded that this circumstance alone would tip the balance in favour of the appellant. We are not persuaded that a risk assessment would have concluded that inattention or carelessness, whether or not as a result of alcohol or high spirits, would lead to any risk of falling from this area. This conclusion is strengthened by the fact that no such fall had been reported in nearly thirty years since the balustrade had been constructed. In particular, we are not persuaded that the respondent could, or ought to have, foreseen that students would regularly use the balustrade as a seat. In our opinion, the mere fact that the College served liquor at evening functions did not oblige it to guard against every casual irresponsible act which might ensue on the premises. It is not realistic to think that a warning sign, or a general prohibition, would deter such persons on such occasions. Further, warnings or other measures could not be restricted to this particular area, as a drunk and foolhardy student might test other parts of the building.

112. The argument moves onto another plane if it is concluded, as we do, that the Master should have held, on the evidence, that the College authorities were aware of the practice of students sitting on the balustrade. Indeed, as we have pointed out, it appears that the Master would have found negligence in that event.

113. It was common ground between the parties that climbing onto and sitting on the balustrade was obviously dangerous because of the risk of overbalancing and falling a considerable distance. However, the evidence shows that a number of students were prepared to, and did, run the risk in broad daylight, when not affected by alcohol. Indeed, some of the students are likely to have been in the habit of doing so, day or night. Thus, in addition to this area being a known congregating point, it was known that some at least of those congregating there at night, during a function, would be likely to attempt to sit on the balustrade. Some, at least, would be affected by alcohol. On this basis, the risk was real and obvious. Father Fowler effectively conceded as much in cross-examination, at least if the practice was known. This case is removed from hypothetical foresight of a casual foolhardy act. It concerns the existence of an actual unsafe practice.

114. In our opinion, the Master was correct in thinking that knowledge of this would lead to a finding of liability. Once a particular risk or danger was known, it was necessary to balance that risk against the reasonableness of requiring precautions to be taken to guard against it. The respondent did not lead any evidence to indicate that it had, in fact, considered the risk and rejected the precautions as being unreasonable. Indeed, it denied, and continues to deny, knowledge of the risk. In the absence of any contrary indication in the evidence, it would follow that some of the precautions at least taken after the accident should have been taken beforehand. There is virtually no cost involved in the removal of the chairs and seats. Nor is there any significant cost in ensuring that appropriate warnings are given. The cost of the erection of a railing was relatively minor compared with the very serious consequences that would follow from a fall, amply demonstrated by this case. We do not consider that the carefully phrased decision in Ahluwalia v Robinson is to the contrary - see particularly Hodgson JA at [25].

115. The precautions to be taken would depend upon an assessment of what was required to reasonably avoid the risk. It may be that the appropriate initial response was to discourage or prohibit students from congregating in the area, and to warn them expressly of the danger of sitting on the balustrade. Such a warning could be communicated to the students in more ways than one. Removal of the chairs and tables would be a good starting point. If these precautions proved ineffective, then the erection of a suitable railing could be the next line of defence.

116. Whilst prohibitions and warning signs may be ineffective to guard against casual acts of recklessness, the situation here was quite different. The appellant gave evidence that she had a false sense of security based upon the regular use by students of the balustrade as a seat, and that she would not have attempted the manoeuvre in the face of a warning. There is nothing to suggest that she was generally irresponsible. She had been appointed a senior student. Her evidence was referred to by the Master and not rejected, although he did not regard it as a sufficient foundation for the taking of precautions. However, that was because he found that the College authorities did not know of this practice. We would be inclined to think that discouraging or prohibiting students from congregating in the area, and providing a warning would have gone some way towards breaking the habit that had developed, and which the appellant followed on this evening. Whether that be so or not, it is clear that some combination of the precautions taken after the accident would almost certainly have prevented it from occurring.

117. We are also inclined to the view that, for the purposes of the tort of negligence, whether or not the College authorities had actual knowledge of the practice of the students sitting on the balustrade, they ought to have known about that practice. If they did not know about it, that was because they were derelict in the exercise of their duty of care towards those students for whose welfare they were responsible. The relationship between the College authorities and the students cannot simply be equated to a relationship of landlord and tenant, such as was discussed in Jones v Bartlett. The significance of control is underlined in Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 per Gleeson CJ at [18]-[21] [26] [29], Kirby J at [88]-[89] and Hayne J at [112].

118. In our opinion there is also liability in contract. The appellant was a fee paying student in a residential, educational college. The College was connected with the University and run by a religious order. The implied contractual term was that the premises would be as safe for use by the appellant as reasonable care and skill on the part of the respondent could make them (Maclenan v Segar [1917] 2 KB 325; Watson v George [1953] HCA 41; (1953) 89 CLR 409; and Hoyts Pty Ltd v Burns [2003] HCA 61 per Kirby J at [32] and [46]). In our opinion, the College authorities bore a responsibility, under that implied term, to monitor the conduct of persons on the premises so as to be able to recognise dangerous situations, or the development of dangerous practices, in order that appropriate measures could be utilised to guard against them. The safety of premises is a relative concept. It must be judged against the activities that take place on the premises. This responsibility would include taking into consideration the characteristics of those who engage in such activities, particularly in the case of an institution such as a university college, which does not merely provide accommodation, with a key to a door. The activities of a university college go well beyond the mere provision of bed and board, as is amply illustrated by the function which the appellant attended on the night in question. The respondent had the care, control and management of the premises and of what took place upon them. If we are correct in attributing to the College authorities knowledge of the practice of students of sitting on the ledge, then it seems plain that to permit that practice to continue would be a clear breach of the implied contractual term. We are further of the opinion that, given the existence of the practice over at least several years, the authorities ought to have become aware of it, and ought therefore to have taken the required steps to prevent it. Not to do so was a breach of the implied term. In our opinion, the appellant was entitled to a verdict, and the appeal must be allowed.

119. Notwithstanding his decision as to liability, the Master went on to assess damages at $600,283 and assessed contributory negligence as 60%. The respondent does not quarrel with the amount of damages so assessed. The appellant challenges the finding as to contributory negligence.

120. A hypothetical finding of contributory negligence is difficult as the factual and legal substratum for liability is not established. Understandably, the Master did not make the assessment on a substratum consistent with that which we have found. His provisional finding cannot therefore stand.

121. A threshold question arises. At trial, it was implicitly accepted that damages could be reduced if it were established that the appellant had failed to take reasonable care pursuant to the Law Reform (Miscellaneous Provisions) Act 1955 (ACT) s 15. During the argument on appeal, a question arose as to the application of that provision as amended by the Law Reform (Miscellaneous Provisions) Amendment Act 2001 (ACT) to the contract count. As a consequence, counsel for the appellant sought leave to put the argument that there could be no apportionment of a verdict based upon the contract count in this case. The respondent ultimately opposed that course. The only prejudice that was relied upon was costs. As that prejudice can be cured by orders of the Court, in our opinion the appellant should be permitted to raise the issue notwithstanding its position below. It is not suggested that the concession had any impact on the conduct of the trial. All issues relevant to contributory negligence and apportionment had to be dealt with in relation to the tort counts.

122. The relevant provision is in the following terms:

(1) If a person (the claimant_) suffers damage as the result partly of the claimant's failure to take reasonable care (contributory negligence) and partly the wrong of someone else -_

(a) a claim in relation to the damage is not defeated because of the claimant's contributory negligence; and

(b) the damages recoverable for the wrong are to be reduced to the extent the court considers just and equitable having regard to the claimant's share in the responsibility for the damage.

(2) However, if the claimant suffered personal injury and the wrong was a breach of statutory duty, the damages recoverable by the claimant in relation to the personal injury are not to be reduced because of the claimant's contributory negligence.

(3) If a contract or enactment providing for the limitation of liability applies to the claim, the amount of damages awarded to the claimant because of subsection (1) is not to exceed the maximum limit applying to the claim.

(4) This section does not operate to defeat any defence arising under a contract.

(5) Subsection (1) does not apply to a cause of action that arose before 31 March 1955.

(6) Subsection (2) does not apply to a cause of action that arose before 6 December 1991.'

'Wrong' is defined by s 14 to mean:

'...an act or omission (whether or not an offence) -

(a) that gives rise to a liability in tort in relation to which a defence of contributory negligence is available at common law; or

(b) that amounts to a breach of a contractual duty of care that is concurrent and coextensive with a duty of care in tort.' (emphasis added)

123. The evident purpose of this amendment was to overcome the decision of the High Court in Astley v Austrust Ltd (1999) 197 CLR 1, and this is confirmed by reference to the Second Reading Speech and the Explanatory Memorandum. The purpose of the amendment as expressed in the latter is 'to restore the law to the position commonly understood before the High Court decision'. It also appears from the latter that the amendments arose from an agreement between the States and Territories following consideration by the Territory and State Attorneys-General.

124. The question that arises in the present case is whether the omissions found against the respondent amount to a breach of a contractual duty of care that is co-extensive with the duty of care in tort. It is clear enough that the duty is concurrent (Astley per Gleeson CJ, Mc Hugh, Gummow and Hayne JJ at [44]-[48]).

125. Astley concerned the provision of professional services where the implied contractual term is expressed in terms of a duty of care indistinguishable from the tortious duty (Astley per Gleeson CJ, McHugh, Gummow and Hayne JJ at [47] and [48]). In that situation, absent relevant express terms of the contract, it is easy to see that the tortious and contractual duties of care are co-extensive. It is not so simple in the case of occupier's liability. The duty owed to a contractual entrant has traditionally been regarded as higher than that owed to other classes of entrant. As will appear, the principles relating to contractual liability have survived the re-writing of the law of occupier's liability by the High Court in the 1980s. It is thus arguable that even if the implied term of the contract can be properly described as giving rise to a duty of care, this will not be co-extensive with the tortious duty of care in the strict sense unless the revision of the law of tort has increased the scope of that duty so that it is co-extensive with the contractual duty. Put another way, at least the duties would not always be co-extensive. Counsel cited no authority as to the construction of this or cognate sections in other States or Territories.

126. The leading case on contractual liability is Watson v George [1953] HCA 41; (1953) 89 CLR 409. The defendant owned and conducted a boarding house and the accommodation for boarders included the use in common of a bathroom in which there was a gas bath heater. The husband of the plaintiff was found dead in the bathroom, the death being caused by carbon monoxide gas escaping from the bath heater. The trial judge held that, in accepting the deceased as a paying guest and inviting him to use the bathroom, the defendant impliedly warranted that reasonable care had been taken to make and keep the premises reasonably fit and safe for the purposes of the invitation and that, applying that principle to the case, the implied warranty was that reasonable care had been taken to maintain the bath heater in a reasonably fit and safe condition. This, in turn, was narrowed to a factual question, namely, whether the defendant, in a reasonable course of conduct towards her boarders, should have, from time to time, had the bath heater examined by an expert to see that it was functioning properly. The trial judge, whilst accepting that the defect would have been apparent some time before the accident if it had been inspected by an expert, held that nothing had occurred which would reasonably cause the defendant to believe that the bath heater required attention, there was no evidence that it was usual or necessary to have bath heaters inspected at regular intervals, or that the gas company or any public authority recommended that this should be done or that it was risky not to do so. There was a verdict for the defendant.

127. It is clear enough that the High Court approved the general statement of principle upon which the trial judge acted and it is reasonably clear that the High Court rejected the appellant's argument that there was a warranty of fitness for the purpose simpliciter. There are difficulties in going beyond that as there are differences between the detailed reasoning in the two principal judgments, one by Williams ACJ, and the other by Fullagar J. Kitto J agreed with both. The differences have particular relevance to the question here. Williams ACJ (at 414-415) appears to have adopted the analysis by Jordan CJ in Key v Commissioner for Railways (1941) 41 SR (NSW) 60 at 65-66, which describes a contractual entrant as an invitee and assimilates the contractual and tortious duty, going so far as to suggest that an action for negligence would lie for injury caused by breach of the duty created by the warranty. Fullagar J rather emphatically disagreed with that approach (419-420). The difficulty is not lessened by the fact that each of the justices examined a similar line of authority, each appearing to apply the decision in Maclenan v Segar [1917] 2 KB 325.

128. In Maclenan v Segar, McCardie J pointed out that a contract may lead to an implication of a warranty which carries the duty of a defendant substantially beyond the obligation owed to an invitee, and then concluded (at 332-33):

'Where the occupier of premises agrees for reward that a person shall have the right to enter and use them for a mutually contemplated purpose, the contract between the parties (unless it provides to the contrary) contains an implied warranty that the premises are as safe for that purpose as reasonable care and skill on the part of any one can make them. The rule is subject to the limitation that the defendant is not to be held responsible for defects which could not have been discovered by reasonable care or skill on the part of any person concerned with the construction, alteration, repair, or maintenance of the premises; and the head-note to Francis v Cockrell must to this extent be corrected. But subject to this limitation it matters not whether the lack of care or skill be that of the defendant or his servants, or that of an independent contractor or his servants, or whether the negligence takes place before or after the occupation by the defendant of the premises.'

129. Fullagar J said (as to that statement) (at 424-425):

'The above statement of the rule must, I think, be accepted as a correct statement: it can hardly be doubted that it represents the general current of authority. It is, however, from some points of view, a curious rule. The obligation is, in legal theory, contractual, but the liability depends on a breach by somebody at some stage of a common-law duty (which may, of course, have been also itself a contractual duty) to use reasonable care. It seems clear that the rule does not impose liability in the absence of negligence on the part of anybody. It is to be observed also that in some cases the whole question will resolve itself practically into a question whether the defendant or a servant of the defendant has been guilty of negligence in connection with the source of danger and damage.'

'As a matter of general principle, the burden of proving a breach of contract, no less than that of proving a breach of common law duty, rests on a plaintiff, I think that the cases generally suggest, and that the true rule is that the burden rests on a plaintiff in this class of case of proving negligence somewhere at some stage.'

131. One available analysis of Watson v George is that the practical difference between contractual liability and tortious liability lies in the responsibility in contract for the negligence of those for whom there is no vicarious liability in tort and where there is no tortious non-delegable duty. If the question is limited to the liability for the actions or omissions of the occupier, then the duty in tort and contract is co-extensive. That analysis is consistent with the approach taken by Swanton in 'Occupier's Liability Towards Contractual Entrants' [1989] MonashULawRw 5; (1989) 15 Monash University Law Review 69.

132. It is also consistent with the decision of the High Court in Calin v The Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33. The plaintiff in that case attended the Rapallo Cinema in Sydney. Having bought a ticket, she entered the darkened auditorium where no usher was in attendance. She fell in the aisle and claimed to have slipped on a banana skin. In her statement of claim, she alleged that she was a contractual entrant and that it was an implied term of the contract that the premises were as safe for the purpose of her watching the film as reasonable care and skill could provide, alternatively that she was an invitee and that the banana skin was an unusual danger of which the defendant knew or ought to have known; in a further alternative she asserted that the defendant was in breach of the general common law duty of care. Notwithstanding the three ways in which the plaintiff's claim was pleaded, the trial judge put her case to the jury as one of general negligence. The appellant claimed that it was entitled to a direction in accordance with Watson v George, although that had not been asked for at trial. At 40-41 Mason CJ, Deane, Toohey and McHugh JJ said:

'The case for the appellant is that a direction to the jury formulated in accordance with the law as stated in Watson v George would have been more favourable to the appellant than the direction which we have just set out. Mr Jackson QC for the appellant endeavours to support this case with the submission that, if the issue had been put to the jury as a breach of implied warranty, the question for them would have been whether the premises were as safe as reasonable care and skill on the part of anyone might make them. However, it is conceded that in this context the reference to "anyone" is no more than a reference to a person operating a cinema. Once this is accepted, it follows that, in the circumstances of this particular case, it would have made no difference had the trial judge directed the jury in accordance with Watson v George_. The trial judge made it clear to the jury that the reasonable care expected of the respondent was the reasonable care expected of the operator and occupier of a cinema. Indeed, in a sentence in his summing up, seven lines before the passage which we have already quoted, the trial judge had made a statement linking the duty to take reasonable care with the respondent in its capacity as the "operator and occupier of a cinema"._

The implied warranty and the common law duty of care may have different consequences when it comes to questions of contributory negligence and the liability of independent contractors. But those questions did not arise here. Accordingly, we are not persuaded, in the particular circumstances of this case, that the omission to seek the jury's verdict on the issue of breach of implied warranty occasioned a substantial wrong or miscarriage.'

'The appellant submits that the trial judge should have directed the jury on the footing that, if an occupier of premises agrees for reward to allow a person to enter the premises for some purpose, the occupier impliedly warrants that the premises are as safe for the purpose as the exercise of reasonable skill and care can make them. There is substantial authority in support of this proposition: Key v Commissioner for Railways (1941) 41 SR (NSW) 60 per Jordan CJ at 65-6; Watson v George [1953] HCA 41; (1953) 89 CLR 409, per Williams ACJ at 415; Maclenan v Segar [1917] 2 KB 325; Francis v Cockrell (1870) LR 5 QB 501, per Martin B at 509-10. More recently, in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; 69 ALR 615, this court held, by majority (Mason, Wilson, Deane and Dawson JJ; Brennan J dissenting), that, in an action for negligence against an occupier, it is necessary to determine only whether, in all the relevant circumstances, including the fact of the defendant's occupation of the premises and the manner of the plaintiff's entry upon them, the defendant owes a duty of care under the general principles of negligence. In other words, it is not necessary to consider whether a special duty is owed to a particular class of entrant. However, the Court had no occasion to examine, and did not examine, the principles of the common law governing the liability of an occupier of premises who agrees for reward to allow a person to enter the premises for some purpose. In this situation, it would not be right to treat Zaluzna and the decisions which preceded it (Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614; 56 ALR 417 and Papatonakis v Australian Telecommunications Commission [1985] HCA 3; (1985) 156 CLR 7; 57 ALR 1) as authorities which overruled the principle established in Watson v George. In view of our ultimate conclusion that the trial judge's direction to the jury was adequate to cover the respondent's duty under any implied contractual term, we are prepared to assume that, notwithstanding the applicability of the ordinary duty of care of the law of negligence, a contractual term to the effect suggested on behalf of the appellant can be implied from the sale and purchase of the cinema tickets.'

134. The case that the appellant made concerning the deficiencies of the building arising out of the redesign and reconstruction of the bar and common room area (if accepted) may well have been an instance where the difference between the contractual and tortious standards would have been critical. The respondent would be taken to have discharged its duty of care in tort if it employed competent designers and builders, assuming that they were properly briefed. That would not be an escape in the case of contract if negligence on the part of the designers or builders could be proved. On the other hand, the omissions which, in our opinion, established the negligence of the respondent here, depended upon the knowledge imputed to the respondent, and its supervisory role. It would seem to follow from Watson v George and Calin v Greater Union that the duties in tort and contract were co-extensive in that respect. The various opinions expressed in the judgments in Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 and the comments about them by members of the High Court in Jones v Bartlett (eg Gleeson CJ at [53]-[55], Gaudron J at [84]-[91], Gummow and Hayne JJ at [159]-[166] and [199]-[217], Kirby J at [234]-[237] and Callinan J at [278]-[286]) tend to complicate this issue but, in our opinion, do not compel a contrary conclusion in circumstances such as the present. As s 15 refers to particular acts or omissions upon which liability is founded, the focus is upon those acts or omissions that in fact give rise to liability. On that footing, in our opinion, s 15 is applicable in relation to the verdict on the contract count in this case.

135. The immediate question is whether this Court should make its own assessment of contributory negligence, or remit the issue to the Supreme Court. In our opinion, it is appropriate that this Court make the necessary assessment. Finality of litigation is to be achieved where possible. The findings of fact made by the Master, together with the further matters to which we have referred, provide an adequate base for the necessary judgment to be made. The only outstanding question of primary fact is the blood alcohol reading recorded in the hospital documents and the evidence relating to it. We have indicated that, whilst admissible, there was a real question as to whether it ought to have been excluded pursuant to s 135 of the Evidence Act. It is sufficient to say that, for the reasons outlined in the discussion as to admissibility, we would give little probative weight to the reading. The issue of contributory negligence should be approached on the basis that the appellant was significantly affected by alcohol, though not necessarily to the extent indicated by the reading.

136. The appellant's manoeuvre in seeking to sit on the balustrade with a large fall behind it, in clothes which made the manoeuvre even more awkward and difficult than usual for a person of her height, and whilst affected by alcohol, was, and should have been recognised by her as, dangerous. On the other hand, the respondent had, in effect, invited students to congregate in the area by the provision of tables and seats but had taken no steps to warn or guard against such a manoeuvre although it knew or ought to have known that it was likely that some students might attempt it.

137. In our opinion, it is just and equitable to reduce the damages by fifty per cent, having regard to the appellant's share in the responsibility for the damage she suffered.

138. The appeal should be allowed. The judgment in favour of the respondent should be set aside and in lieu thereof judgment be entered for the plaintiff for $300,142 plus interest to the date of judgment. The respondent should pay the plaintiff's costs of the proceedings in the Supreme Court, and of the appeal, excepting that the appellant should pay the costs of the respondent of and relating to the application by the appellant to raise the issue as to whether apportionment for contributory negligence was applicable to the contract count (including the substantive argument on that issue). The parties should bring in short minutes of order to give effect to these reasons.

I certify that the preceding paragraphs numbered thirty-eight (38) to one hundred and thirty-eight (138) are a true copy of the Reasons for Judgment herein of their Honours, Justices Gyles and Weinberg.

Counsel for the Appellant: Mr D T Kennedy SC with Mr M J Walsh

Solicitor for the Appellant: Elrington Boardman Allport

Reform (Miscellaneous Provisions) Act 1955

O'Meara v Dominican Fathers [2003] ACTCA 24

At a glance

Court

Decision date

Source

Judgment (134 paragraphs)

O'Meara v Dominican Fathers [2003] ACTCA 24 (5 December 2003)

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Legislation Cited (1)

Cases Cited (21)