Stanton & Anor v Marino

COUNSEL : R C Tonner - Appellants H G Shore - Respondent SOLICITORS : Adrian Batterby, Sydney - Appellants Graham Jones, Sydney - Respondent CATCHWORDS : NEGLIGENCE - occupier's liability - turns on own facts. CASES CITED: Australian Safeway Stores Ltd v Zaluzna (1987) 162 CLR 479; Stannus v Graham (1994) Aust Tort Reports 61,561. DECISION : Appeal dismissed with costs.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

POWELL JA GILES JA FITZGERALD JA Thursday 25 May 2000 STANTON & ANOR v MARINO JUDGMENT

1 POWELL JA: I agree with Giles JA. 2 GILES JA: This was an appeal from a verdict and judgment for the plaintiff in an occupiers liability case. Quantum was not in issue, but the defendants said that they should not have been found to have been negligent or that the plaintiff should have been found to have been contributorily negligent. 3 The defendants owned and occupied a property at Revesby. In the back yard of the property was a swimming pool. The ground fell away so that the rear part of the pool was elevated above the ground. The pump for the pool was at the lower level, behind the pool. 4 The plaintiff was a swimming pool serviceman employed by Swimart at Padstow. One of the defendants asked Swimart to look at the operation of the pool cleaner, and on 6 November 1995 the plaintiff went to the property to do so. He had been told that no one would be home, and found his own way around when he got to the property. 5 The plaintiff looked at the pool cleaner in the pool and at the skimmer box, and went to check the pump. To get to the pump he had to go out of the pool enclosure and along a grassed area at the side of the pool, following a track through long grass towards the back of the property. He came to a rock wall beyond which there was a drop, variously estimated from 40 centimetres to a little under a metre, to the lower level. He put his foot on a rock at the top of the wall, on the edge of the track, in order to step down. The rock tilted forward slightly, and the plaintiff lost his balance and fell forward onto the lower level. He twisted his knee severely. The rock was not dislodged. 6 The defendants used to follow the same path to the lower level, but because of bad hips in one case and small stature in the other case they negotiated the rock wall holding onto the pool fence while stepping up or down. The plaintiff was young and fit and did not hold onto the pool fence; he tried to grab it as he fell, but it was too far away. 7 The defendants said that there was no rock where the plaintiff said he stepped, and that there was a gap in the sense of a lower part in the stone wall at that place. The trial judge found that there was a rock there, but accepted that the defendants were not aware that the rock was loose. 8 The defendants were held to have been negligent in that they failed to provide to the plaintiff as an entrant on the property a safe means of access to the pump. The trial judge said that if the case depended on the loose rock the plaintiff would "have difficulty in succeeding, because of [the] principles set out in Stannus v Graham". But he went on - "However, in my view, the defendants did not provide a safe means of access. They asked a representative of the pool company to attend at their premises while they were not there. They knew that it was likely that that person would proceed from the pool area along the very path the plaintiff took to the pump. There was, in effect, only one means of access. The plaintiff has to cross long grass, with some hidden rocks, and step down a steep step as shown in the photographs. In fact, both defendants, whilst I accept they were a little infirm, had to use the side of the pool to step down. When I put all these circumstances together, I conclude that this was not a safe means of access, and where people, particularly this plaintiff was required to go into this area, in my view he should have been warned of the possible problems, in my view, looking at the photographs, a handrail should have been provided. I am of the opinion that it was quite foreseeable that someone in the plaintiff's position may have fallen and injured themself."

9 The defendants submitted that this was an unsound basis for their liability. The defendants' duty was to take reasonable care to avoid a foreseeable risk of injury to persons entering upon the property, see Australian Safeway Stores Ltd v Zaluzna (1987) 162 CLR 479. While finding overall that there was not a safe means of access, the trial judge identified as the particular failures in that duty that the defendants should have warned of "possible problems" and should have provided a handrail. The drop to the lower level was visible to the plaintiff and was seen by him, and apart from the loose rock there was no other problem of causal significance to the plaintiff's fall of which the defendants should have warned. As to the handrail, the plaintiff had something to hold on to if he had wished, the pool fence, and in any event the cause of his fall was not that he did not have something to hold on to but that the rock moved under his foot. 10 The submission put to one side the loose rock, on the basis that the trial judge had indicated that Stannus v Graham (1994) Aust Tort Reports 61,561 removed it from consideration. In my view that read too much into his Honour's reasons. 11 The facts in Stannus v Graham were similar to the facts in the present case to the extent that the fall was caused by movement of a step. It was found that the landlord did not know of and had no reason to suspect the movement of the step, and it was held that there was no duty to inspect the premises for the purpose of discovering unknown and unsuspected defects and that there was no negligence in failing to observe and remedy a defect in the step prior to the accident. It was also held that there was no negligence in failing to install a handrail, because the steps were not otherwise dangerous and slipping or tripping was an everyday risk which members of the public avoid by taking care for their own safety. 12 While finding that the defendants did not know of the loose rock, the trial judge did not expressly find that they had no reason to suspect it. The so-called principles in Stannus v Graham should not be construed and applied like the words of a statute. Although the defendants did not know of the defect in the means of access to the pump in the form of the loose rock, they could still have been in breach of their duty to take reasonable care to avoid a foreseeable risk of injury. If there was reason to regard the means of access to the pump as involving risk to someone in the position of the plaintiff, including risk from the use of the stone wall as a step even if there was no particular reason to suspect that the rock was loose, there could be breach of the duty of care in failing to remove the risk or at least warn of it. This, in my view, is how the trial judge approached the matter. 13 The rock wall had been in place for about twenty three years, prior to the defendants' ownership of the property. From the photographs in evidence it was of rough construction. The only explicit evidence as to its construction was that there was mortar visible in a gap below the level of the stone in question, described as "like it had been poured in a crack and spread". The construction was such that deterioration, instability and movement of the topmost rocks could not be excluded and the rock wall was clearly enough not constructed as a step, but as a retaining wall. Even though the rock was not dislodged when the plaintiff fell, there was evidence that it was picked up and moved away when the plaintiff was attended to, and it must have been quite insecure. 14 This throws up, I think, what the trial judge had in mind when he spoke of warning of possible problems. One of the defendants agreed that he "had to be pretty careful about" negotiating the rock wall, and both defendants agreed that there was a significant risk of injury if one fell when doing so. The combined effect of the long grass, the large drop requiring stepping on the rock at the top of the wall and using for a step a rock wall not constructed as a step, and the absence of an aid to safety other than the slightly distant pool fence, meant that the means of access to the pump was not a reasonable way of meeting the foreseeable risk of injury. A warning should have been given in case the rock wall failed in the job it was not constructed to do, or (as the plaintiff contended below, although the trial judge did not refer to it) proper steps should have been made. 15 In my opinion the defendants have not made good their challenge to the finding that they were negligent, and the trial judge's conclusion was open to him and should not be disturbed. As to contributory negligence, I do not think it necessary to say more than that I cannot see any basis on which it should be found that the plaintiff failed to take care for his own safety. 16 In my opinion the appeal should be dismissed with costs. 17 FITZGERALD: I agree with Giles JA.

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