Postnet Pty Ltd v Wood [2002] ACTCA 5

Court of Appeal (ACT)|2002-11-05|Before: Crispin P, Gray JJ

the judgment in favour of the first respondent be set aside;

in lieu thereof, judgment be entered for the appellant;

the first respondent pay the appellant's costs of the appeal and of the proceedings before the Master.

2. The respondent and a friend, who were both then in their early twenties, had attended a nightclub trading under the name of "Late Night Heaven" which the appellant had operated in licensed premises on the first floor of a building adjacent to the one from which the respondent later fell. During the course of the evening he and his friend apparently found it difficult to maintain a conversation due to the noise. They left the nightclub through a window and walked along the metal awning running along the front of both buildings until reaching a point about 41 metres from the window. Both men then climbed up onto a structure on the front wall of an adjacent building some 3.5 metres above the awning. The structure was shaped like a small balcony with a wire mesh floor but there were no doors opening onto to it or other obvious means of access to it and it appeared to serve no practical purpose other than, perhaps, the provision of shade for the windows immediately below. Having reached that level, the respondent then pulled himself up to the top of the front wall or parapet which was about 2 metres above the structure and hence about 5.5 metres above the awning. He sat on the parapet for a while with his legs dangling, then pushed himself off the parapet and, in effect, jumped onto the sunshade structure. The impact apparently caused the mesh floor to give way and he continued to fall, crashing through a skylight in the awning below and landing heavily on the ground. He sustained very serious injuries and, as the Master observed, was lucky to survive the impact.

3. It was not suggested that the respondent had been intoxicated and it appears that he had climbed first onto the structure and then onto the top of the wall for no other reason than curiosity.

4. The Master acknowledged that, on first impressions, the case might seem to have been one in which the injured person should be seen as having been entirely responsible for his own misfortune. However, it was clear that the appellant had known that patrons regularly climbed through the windows to go out onto the awnings and the respondent's counsel had argued that it had had a duty to protect patrons from exposure to the obvious danger thereby created. Bars had subsequently been fitted to the windows that provided access to the awning at a cost of only about $100 per window and it was contended that that this was a reasonable precaution that would have protected the respondent from injury had it been implemented prior to the accident.

5. As the Master pointed out, an occupier of premises must take reasonable care for the safety of people entering those premises. What is reasonable will vary with the circumstances of a person's entry on to the premises but there are no longer special duties of care depending upon whether the injured person was an invitee, licensee or trespasser. See Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479.

6. In determining whether there has been a breach of a duty of care, a court must address three issues. First, it must determine whether a reasonable person in the position of the defendant would have foreseen that his or her conduct involved a risk of injury to a class of persons including the plaintiff. In determining this issue, it must take into account the fact that a risk "which is not far fetched or fanciful is real and therefore foreseeable" per Mason J in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47-8. Second, if it finds that there was such a foreseeable risk, it must proceed to determine what such a hypothetical reasonable person would have done in response to it. The latter question requires an examination of the magnitude of the risk and the degree of probability of it occurring, together with the expense, difficulty and inconvenience of taking preventative action. In weighing these factors the court must allow for the fact that an occupier is entitled to take into account the likelihood that, with due allowance for human nature, an entrant will use reasonable care for his or her own safety. See Phillis v Daly (1988) 15 NSWLR 65 at 74. Third, it must determine whether the conduct of the defendant fell short of such a response.

7. In some cases a court must also take into account the possibility that a higher duty of care may be owed by an occupier of land to an entrant who has been asked to pay an entry fee. See Morawski v State Rail Authority of NSW (1988) 14 NSWLR 374 per Kirby P at 378; and Downunder Rock Café Pty Ltd v Roberts (Victorian Court of Appeal) (1998) Aust Torts Reports 81-481. However, the Master was not satisfied that the respondent had paid an entry fee on the night in question and found that this principle was of no application.

8. The Master expressed the opinion that an occupier would not normally be liable when people lawfully on their premises elected to climb out of a window because such entrants could be expected to pay heed to the obvious danger involved in such conduct. In this case, however, the appellant had long tolerated a practice of permitting patrons to leave the club premises through windows and it could not claim to have expected that patrons would pay heed to the danger and not go out onto the awning when it had known that some frequently did so.

9. It was conceded that the appellant would have been liable if the respondent had simply slipped and fallen from the awning because the risk of such a fall would have been both foreseeable and preventable. Notwithstanding this concession, counsel for the appellant maintained that it had not been foreseeable that patrons would walk along the balcony and then climb up on to other structures on other buildings. The case for the respondent was based upon the contention that the appellant was liable because it had known that young male patrons used the windows to access the awning and it was foreseeable that they could fall. It was not necessary to prove that the appellant should have foreseen that a patron who had gone on to the awning might be injured in a particular manner; but only that the circumstances were within the scope of a foreseeable "genus of injury". It was also argued that, in any event, the risk that young male patrons of licensed premises might wander along the awning and see what they could see and perhaps climb onto an adjacent structure could not be dismissed as "far fetched and fanciful".

10. The Master seemed to have been influenced by the decision of the Victorian Full Court in Downunder Rock Café Pty Ltd v Roberts (1998) Aust Torts Reports 81-481 which was a case in which a person attending licensed premises had been injured when a lighting structure collapsed on him because another patron had attempted to swing from it. The risk, which was clearly preventable, was found not to have been far-fetched or fanciful but one which, though unlikely, was nonetheless real. The Master also took into account the fact that the appellant had been operating a night club and referred to the observations of McHugh JA in Phillis v Daly (1988) 15 NSWLR 65 who, in finding a defendant liable for an accident caused by logs being left in a car park, said that a higher standard could be expected of a hotelier than of a private householder.

11. The Master ultimately found that the appellant had owed the respondent a duty of care to the plaintiff to ensure that he did not gain access to the awning and areas of the adjoining building accessible from the awning. He also found that there had been cheap and effective means of preventing such access. Hence, he concluded that the appellant had been guilty of a breach of that duty of care and that it was liable to the respondent for the injuries he had sustained in the fall. He also found the respondent guilty of contributory negligence and reduced the damages accordingly.

12. Had the respondent slipped or lost his balance and fallen from the awning we would have accepted the correctness of this approach without hesitation. Such an accident would have occurred on the appellant's premises or at least in an area immediately adjacent to and accessible from those premises and, as Mr McIntyre SC, who appeared for the appellant fairly conceded, would have been both foreseeable and preventable. However, the respondent was not injured as a result of such an accident.

13. Whilst the duty of care which occupiers owe to entrants may require them to provide safe means of access to or egress from the property, it does not normally require them to restrain people who have left their premises from climbing on other buildings. There may, perhaps, be some circumstances in which an occupier would be liable for an accident suffered by a person who has actually left the premises because the means of egress led directly to some hazard, such as that posed by an unlit ditch, and the occupier should have foreseen that the other person might be injured if not warned of the danger. In the present case, the means of egress through the window led directly to the awning which posed an obvious danger, but it did not lead directly to the structure above the awning on the neighbouring building. There was no evidence to suggest that patrons were in the habit of climbing onto that structure, let alone climbing from it to the top of the parapet above. Furthermore, the respondent did not slip or lose his balance and fall. He deliberately pushed off from the parapet and jumped on to the structure.

14. Applying the common-sense test of causation recognised by the High Court of Australia in March v Stramere Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, we are unable to accept that the respondent's injuries were caused by the negligence of the appellant. On the contrary, we think they were clearly attributable to the respondent's decisions to climb up on to the structure, to subsequently climb from it to the top of the wall and to then jump back down onto the structure. It is true that the injuries would not have occurred had access to the awning been prevented and we are conscious of the observation of Kirby J in Chappel v Hart (1998) 195 CLR 232 at 269 that the decision in March v Stramere did not involve expulsion of the "but for" test from consideration in relation to issues of causation but merely pointed to the need for the results thereby produced to be tempered by "value judgments" and "policy considerations". However, it is clear that the application of that test does not, of itself, provide an adequate basis for finding a defendant liable for an injury "which, though it could be traced back to the defendant's wrongful conduct, was the immediate result of unreasonable action on the part of the plaintiff". See March v Stramere per Mason CJ at 517. In our opinion the injuries suffered by the respondent fall within this description.

15. We also accept Mr McIntyre's submission that the injury was not reasonably foreseeable. The concept of foreseeability is not in itself a test of causation but rather a test for limiting the extent of a wrongdoer's liability for damage which has been caused by his or her wrongful act. See Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112 at 122; Mahoney v J. Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522 at 528; and March v Stramere at 510. However, a plaintiff may recover damages for an injury only if it was reasonably foreseeable.

16. As Mr Stretton, who appeared for the respondent pointed out, the precise injury need not have been foreseen. It is sufficient if injury of the kind which occurred was generally foreseeable. See Chapman v Hearse at 121; and March v Stramere at 535. Mr Stretton relied heavily on the decision of the House of Lords in Jolley v Sutton London Borough Council [2000] UKHL 31; [2000] 1 WLR 1082 in upholding a verdict in favour of a child who had been injured when an abandoned boat which he had jacked up had fallen on him. It had been conceded that the Council had been negligent in failing to remove the boat and that it would have been liable if the child had been injured due to rotten planking giving way but it had been argued that the injury sustained by the boat falling on the boy had not been foreseeable. In rejecting this contention, Lord Hoffman said, at 1091:

"...what must have been foreseen is not the precise injury which occurred but injury of a given description. The foreseeability is not as to the particulars but the genus. And the description is formulated by reference to the nature of the risk which ought to have been foreseen."

17. His Lordship accepted that the trial judge had been correct in describing the foreseeable risk as being that children would "meddle with the boat at the risk of some physical injury".

18. Mr Stretton argued that the Master had rightly approached the respondent's claim on a similar basis. He submitted that there had been a foreseeable risk that a person who climbed through the window onto the awning might "fall from height". It should be noted that Lord Hoffman expressly warned that analogies from other real or imagined cases were seldom helpful and despite the persuasive manner in which Mr Stretton sought to develop this aspect of his argument, the present case did not cast any doubt on the wisdom of this observation. In the case with which Lord Hoffman was concerned the rotten condition of the boat had "proclaimed the boat and its trailer as abandoned, res nullius, there for the taking, to make of them whatever use the rich fantasy life of children might suggest". The present case does not give rise to any such consideration. There was nothing about the appellant's conduct in failing to prevent patrons from going through the window onto the awning that proclaimed that the adjoining building was there to be climbed upon or that could reasonably have led the respondent to believe that he had some right to act as he did. In our opinion, the foreseeable genus of risk was not that patrons might fall from any height but rather that they might go onto the awning and thereby encounter some risk of physical injury. The evidence did not support a finding that the appellant should have foreseen that its failure to prevent patrons going out through the window onto the awning would have given rise to the risk of a person being injured by climbing to and jumping from the top of the wall of another building.

19. For these reasons, we uphold the appeal, set aside the judgment and direct that a verdict be entered in favour of the appellant with costs.

20. Given these conclusions, it is unnecessary for us to consider the alternative grounds of appeal relating to the finding of contributory negligence or the cross-appeal relating to the adequacy of damages.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Solicitor for the respondents: Sneddon Hall & Gallop

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