Mr Turner (the plaintiff) attended the wedding of his daughter at the Harrington Grove Country Club (the Club) on 19 November 2011. At about 10:30pm the plaintiff carried the remainder of the wedding cake to the boot of his car, located in the car park of the Club.
At the rear of the parking bay was a concrete kerb immediately followed by a garden bed. At that particular part of the car park, the garden bed comprised of a 720 to 810mm drop, concealed to a greater extent by plants.
After closing the boot of his car the plaintiff stepped back into the garden bed, causing him to fall and suffer significant injury. Shortly after his accident, a balustrade was installed in the area of the accident, protecting pedestrians from falling into the garden bed.
The plaintiff brought a claim against the Club and the architect, Hassell Ltd, which had been retained to provide architectural and landscape design services at the site. Hassell Ltd had also inspected the various plants that were ultimately planted in the garden bed, albeit sometime before the subject accident.
Whilst not directly pleading sections of the Civil Liability Act 2002, the plaintiff brought a claim against:
- the Club, on the basis it failed to fence, barricade or otherwise enclose the garden bed so that it did not pose a risk of harm to pedestrians; and
- Hassell Ltd in relation to its design of the sunken garden bed, and failing to make provision for railing or other safety barrier along the edge of the garden, or otherwise making the car park safe for pedestrians.
During the course of the trial, expert evidence was to effect that Hassell, in failing to make provision for a safety barrier at the garden bed, had acted in accordance with the Building Code of Australia that only required these measures where there was a change of level exceeding 1 meter.
His Honour, Judge Hatzistergos, who heard the matter in the District Court, found in favour of the plaintiff in regards to his claim against the Club, determining that the risk of injury was foreseeable and not insignificant, the cost of preventative action was a balustrade which was ultimately installed for $4,760, and the Clubs failure to install the balustrade was causative of the plaintiff’s injury.
However, his Honour also found in favour of Hassell Ltd. In particular, whilst Hassell knew of the presence of the sunken garden bed and its depth, as well as some plants which had been planted in the garden bed, he found no evidence that Hassell Ltd knew of the precise plantings and foliage in the area at the time of the accident and, therefore, that they might have grown to obscure the depth of the garden bed.
On this basis, his Honour found that a reasonable person in Hassell Ltd’s position would not have taken the precaution of installing the balustrade, amongst other available measures.
His Honour also assessed contributory negligence on the part of the plaintiff at 15%, having rejected the plaintiff’s contention that his action of stepping into the garden bed amounted to mere inadvertence.
His Honour found that there was a clear difference between walking along a level surface area and stepping onto a kerb and into a garden bed. The path was plainly not for pedestrian use, and the plaintiff failed to take precautions to determine that it was safe for him to step backwards.
NSW Court of Appeal
Leeming JA, with Gleeson JA and Harrison J agreeing, ultimately found in favour of the plaintiff in respect to the Club and Hassell Ltd.
Amongst other things, the Club argued that the sole cause of the plaintiff’s injury was his failure to keep a reasonable lookout for his own safety, and in those circumstances it should have been held that no duty of care was owed.
Whilst conceding that an occupier’s duty is delimited by the expectation that users will exercise reasonable care for their own safety, they Clubs submission was rejected by Leeming JA, on the basis that the true depth of the sunken garden bed was concealed by the plantings in it.
The Club also argued that it had delegated its duty of care to Hassell Ltd, as architect.
However, Leeming JA held that the Club ought to have been on notice of the risk posed by the sharp drop of the garden bed, as it occupied and maintained the site. His Honour noted the 2012 Court of Appeal decision of Indigo Mist Pty Ltd v Palmer, where Hoeben CJ stated:
“The content of the duty owed by the occupiers was not only to provide safe premises, but to exercise reasonable care to conduct the hotel premises so as to avoid exposing patrons to a foreseeable risk of harm. … Once they accepted the design of the stairs, they had to consider for themselves what potential hazards arose therefrom. Given the nature of the premises, they had to determine for themselves whether a foreseeable risk of injury existed in relation to the stairs, and if so, what response they should make to it on a day-to-day basis”
In dealing with the liability of Hassell Ltd, Leeming JA found that the plaintiff’s failure to demonstrate any breach of the Building Code of Australia was not determinative in relation to establishing negligence in the present case.
His honour referred to the decision of Neill v NSW Fresh Foods and Ice Pty Ltd (1963) 108 CLR 362, at 368:
“[I]n many cases no more than common knowledge, or perhaps common sense, is necessary to enable one to perceive the existence of a real risk of injury and to permit one to say what reasonable and what precautions might appropriately be taken to avoid it.”
In that regard, Leeman JA noted that the car park was in a club that would have numerous patrons including those who were unfamiliar with the layout of the car park, who might be attending at night, and who might have consumed alcohol.
Additionally, Leeming JA found that the plants in the sunken garden bed were intended by Hassell Ltd to grow, which they did, and therefore Hassell Ltd must have known that at some time in the future it was possible that the plants would obscure the height distance between the car park and the sunken garden bed.
These factors needed to be taken into account when considering what was reasonable in the circumstances.
Leeming JA also noted that the primary judges conclusion that the failure of the Club to install a balustrade was causally related to the plaintiff’s injury, was inconsistent with his finding that Hassell Ltd’s failure to make provision for the balustrade was not causally related.
Leeman JA upheld the primary judge’s finding with regard to contributory negligence, noting that it was open for the primary judge to find, and that it is well established that the apportionment decision of the trial judge is not to be lightly reviewed.
This case is a reminder that, whilst indicative of negligence, the test for breach of duty of care will not always be determined by statutory breaches, or failures to comply with relevant building codes and standards. The test is one of reasonableness, and will likely vary with the facts and circumstances of each particular case.
Furthermore, it is also a reminder that an occupier cannot simply hide behind a supposed delegation of its duty of care, but must respond to foreseeable risks of injury present upon their premises (see, for example, Baker v Gilbert, (2003) NSWCA 113).
Written by Iain Miller.
Iain Miller is a Senior Solicitor in Julie Mahony’s Practice Group. Iain has experience representing people in a range of areas, including public liability, motor vehicle accidents and medical negligence.