Waterways Authority & Anor v Mathews [2003] NSWCA 330 | Case summary

HELD per Meagher JA, dismissing the appeal (Handley and Sheller JJA agreeing):

It was obvious to anyone who knew the site that there was a risk of falling if one walked along either the upper or lower ledge, a risk which was magnified if the ledge was wet and slippery. That fact was obvious to the Respondent and was equally obvious to both Appellants. [6]
Neither Appellant in the present case owed any duty to the Respondent, who, fully knowing the risk, affected (even if slightly) by liquor, and subject to giddy fits, climbed voluntarily at the dead of night along a narrow (and probably slippery) ledge. [9]
There was no evidence that if the Second Appellant had requested the First Appellant to erect any fencing, the latter would have acceded to that request. Such evidence as existed was to the contrary. In the circumstances, it was unwarranted for the Trial Judge to find that such a request would not have been refused. [11] ORDERS i. Appeal allowed; ii. Judgment and verdicts below set aside; iii. In lieu thereof, order a verdict for each defendant; iv. The respondent to pay the costs of the appellant in the Court below and on appeal, but to have a certificate under the Suitors' Fund Act in respect of the latter.

Wednesday, 12 November 2003 WATERWAYS AUTHORITY & Anor v MATHEWS Judgment 1 MEAGHER JA: This is an appeal by two defendants against a verdict and judgment awarded in the District Court by O'Connor DCJ to the respondent in the sum of $144,260. He had fallen approximately 2.4 metres from the western end of a harbourside pool onto exposed rocks sustaining injury. The first appellant, the Waterways Authority, was the lessor of the land on which the pool was constructed, and the second appellant, The Owners Strata Plan No. 2373, was the occupier and lessee of that property. 2 The plaintiff respondent sued the first appellant, the Authority, for its failure to erect a fence, wall or chain around the pool such that persons in the position of the plaintiff would not fall off it, and the second appellant for not lodging an appropriate request for such a fence, wall or chain to be erected. 3 The pool was 18.76 metres long and 9.15 metres wide. It was located at the second appellant's block of units at 11 Addison Road Manly, the pool occupying nearly all the land between the block of units and a cliff above the sea, to the west of the unit. One does not know when the pool was built, but it was some time before 1966. The outer wall of the pool has, at ground level, a two-ledge surface. The topmost level was approximately 450mm wide. The lower ledge was about 360mm wide. It was about 230mm below the top level. It sloped downwards at an angle of about 5°. The western end of the pool was approximately 2.4m above adjacent sea rocks. 4 There had never been any wall, fence or chain around the pool. Equally, before the respondent's mishap nobody had ever fallen onto the rocks from the property. 5 On 30 January 1998 the respondent did fall, and caused himself severe injuries. 6 It was obvious to anyone who knew the site that there was a risk of falling if one walked along either the upper or lower ledge, a risk which was magnified if the ledge was wet and slippery. That fact was obvious to the respondent, and was equally obvious to both appellants. 7 On the night of 30 January 1998 the respondent, who had reached the age of discretion many decades before, gave a dinner party at his unit. Much wine was consumed (the trial judge finding that he had drunk about seven glasses of wine). When the dinner was finished, he and a friend cleaned up the flat and went out in the darkness to sit on the upper level of the pool surround, at the centre of the western end of the pool. They sat there some time, and then, at about 3am or 4am, decided to get up and return to the unit. On rising, the respondent felt a little unsteady and then fell forwards, down onto the rocks. I might add that he had experienced an attack of dizzy fainting the previous day. 8 In these circumstances, I cannot see how either appellant can be liable to the respondent. Counsel for the respondent stressed, undoubtedly correctly, that the duty owed by an occupier of land to an entrant is a high one (although I cannot see on what possible basis the first appellant can be called an "occupier" of the pool); that persons who exercise a degree of control over premises must usually exercise that control for the safety of persons who are at some foreseeable risk on those premises; that negligence on the part of the plaintiff does not automatically negate a defendant's duty of care; that when a duty exists in relation to a risk the fact that comparatively cheap means are available to cope with that risk usually compels a finding of negligence; and that the absence of any prior accident is not necessarily conclusive of the absence of negligence in the defendant. All this may be granted. 9 But in my view neither defendant in the present case owed any duty to the respondent, who, fully knowing the risk, affected (even if slightly) by liquor, and subject to giddy fits, climbed voluntarily at the dead of night along a narrow (and probably slippery) ledge. 10 The respondent relied (as did his Honour) on a meeting of the Proprietors of the Strata Title on 11 December 1972, when there was an inconclusive discussion about fencing the swimming pool. But that discussion is entirely irrelevant to the respondent's accident. The discussion related to the topic of fencing the pool in order to prevent children falling in. There never has been any discussion about fencing the pool so as to prevent adults falling out. 11 What is more important, there is no evidence that if the second appellant had made a request to the first appellant to erect any fencing at all, the first appellant would have acceded to it. Such evidence as exists is to the contrary. The secretary of the body corporate gave evidence that her understanding was that such a request would have been refused. The evidence of Mr Gaweda, a member of the first appellant, was that the first appellant would indeed have refused the request. In these circumstances, his Honour's finding that it is "inconceivable" that such a request would be refused is truly extraordinary. 12 In my view, the following orders should be made: i. Appeal allowed; ii. Judgment and verdicts below set aside; iii. In lieu thereof, order a verdict for each defendant; iv. The respondent to pay the costs of each appellant in the Court below and on appeal, but to have a certificate under the Suitors' Fund Act in respect of the latter. 13 HANDLEY JA: I agree with Meagher JA. 14 SHELLER JA: I have had the benefit of reading the reasons for judgment prepared by Meagher JA. His Honour has emphasised that it was obvious to anyone who knew the site but in particular was obvious to the respondent, Mr Mathews, that there was a risk of falling if one walked along what his Honour called the upper or lower ledge, a risk which was magnified if the ledge was wet and slippery. 15 In Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 two members of the majority of the Court on the question of liability, Toohey and Gummow JJ, said at 454: "Whether there was a breach of the duty of care owed by the respondent to those who came onto the Reserve depended on 'the action that a reasonable person in the respondent's situation would have taken to guard against the foreseeable risk of injury which existed'; Nagle v Rottnest Island Authority (1993) 177 CLR 423 at 431. An assessment of that action must be on the footing that the respondent had to take into account 'the possibility that one or more of the persons to whom the duty is owed might fail to take proper care for his or her own safety'. But this does not mean that the respondent was obliged to ensure, by whatever means, that those coming onto the Reserve would not suffer injury by ignoring an obvious danger." 16 Their Honours went on to say at 455 that in that case "the risk existed only in the case of someone ignoring the obvious". 17 I agree with what Meagher JA says and the orders he proposes.

Waterways Authority & Anor v Mathews

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