Slip & Fall: nil breach of duty – low risk and obvious

The v AEG Ogden (Convex) Pty Ltd [2011] QDC 51

Issues: Liability and quantum in a ‘slip and fall’ incident at the Convention Centre on a lip of concrete in a loading dock area, which varied at its highest in or about 20mm. The secondary issue although not in contest, was whether consideration of employment was a ‘significant contributory’ factor.

Dorney QC DCJ

Duty of such an occupier

[22] It is to Thompson v Woolworths (Q’land) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234 that it is necessary to turn for guidance in determining what is the content of the duty of care owed by the defendant to the plaintiff in the present circumstances.

[23] In the joint judgment in Thompson the High Court held that the status of the person that is occupier of the land on which the other person is injured is one aspect of the relationship that gives rise to the actual duty of care: at 243 [24]. In Thompson, it was held that the status in that case gave the occupier a measure of control that is regarded by the law as important in identifying the existence and nature of the actual duty of care: at 243 [24]. But, unlike this present case, Thompson involved a relationship that concerned more than the physical condition of the occupier’s premises only: at 243 [24]. Thus, in Thompson, the purpose for which and the circumstances in which the entrant was on the occupier’s land constituted a significant aspect of the relationship between them because the entrant, in pursuit of her own business, was delivering goods to the occupier for the purposes of sale in the course of the occupier’s business; and to do that, she was required to conform to a delivery system established by the occupier: at 244 [26]. There was no such system here.

[24] Thus, stripped of the added aspects that arose in Thompson, the content of the occupier’s duty in a case such as this is to exercise reasonable care for the safety of the entrant, cognisant of the circumstances of entry being to use the car parking and associated facilities to permit exhibition material to be taken to and placed in exhibition areas in the Centre itself. Thus, the status of the defendant here was that it was receiving a commercial benefit from presence of persons such as the plaintiff on its premises; but there was no system established, so that the total area involved was, for an entrant such as the plaintiff, to be treated as a car park in which there was a docking area and an adjacent walkway.

[25] As in Thompson, the real issue here is not whether a duty was owed – which it clearly was – but whether the duty that was owed was breached, given the content of that duty. Because the risk of injury was not far-fetched or fanciful, a reasonable person in the defendants’ position would have foreseen that this lip did involve a risk of injury to a class of entrant that included the plaintiff.

[26] Turning then to breach, as observed by the High Court in Thompson, the obviousness of the risk, and the remoteness of the likelihood that other people will fail to observe and avoid it, are often factors relevant to a judgment about what reasonableness requires as a response, observing that, in the case of some risks, reasonableness may require no response: 246 [36]. With respect to the issue of warnings – should it be later seen to be relevant – the High Court noted that the conclusion, in a given case, that a warning is either necessary or sufficient itself involves an assumption that those to whom the warning is addressed will take notice of it and will exercise care, since the whole idea of warnings is that those who receive them will act carefully, as there would no purpose in issuing warnings unless it were reasonable to expect that people will modify their behaviour in response to warnings: at 246-247 [36]. As stated earlier, nothing has been presented to the court which would lead to an engagement by the court of a consideration of the issue of a warning here.

[27] Perhaps of more immediate assistance in this case is the later decision in 2005 of the High Court in Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341. Although this was a consideration of the Wrongs Act 1936 (South Australia), it is noted that both Callinan and Heydon JJ, comprising part of the majority, held that the application of that Act in general reflected the common law and demanded no different conclusion from what the common law required, it being noted that the case in the courts below was conducted largely on basis of the common law rather than the Act: at [113-114]. As addressed by Gleeson CJ, also in the majority, the fundamental problem in occupier/entrant cases remains to the extent to which it is reasonable to require occupiers to protect entrants from a risk of injury associated with the condition of the premises, even though the problem is no longer addressed by prescriptive legal rules which attempt to establish precise and different standards of care for different classes of entrant: at [8]. Hayne J, also part of the majority, after observing that the relevant danger in the case was presented by the uneven surface of the occupier’s home driveway, held that neither the fact the driveway paving was uneven nor the degree of unevenness (a difference of about 12 millimetres between two sections of concrete) is or was at all uncommon in the driveways of suburban housing: at [94]. He then asked: would it have been reasonable for the occupier to eliminate or reduce the risk of tripping or stumbling on or over the unevenness, or to warn all entrants to watch their step?: at [94]. But, even given the differences between home owners with an interest in having entrants attend for the purposes of an occasional garage sale and commercial enterprises such as that conducted by the defendant at the Centre, the question remains the same (although the extent of the duty might well change depending upon the actual circumstances of the particular case). Paraphrasing what Hayne J went on to write, it may be only when the particular event such as the entrant’s stumble is known to have happened that it may then appear reasonable to take steps to reduce or eliminate the danger presented by unevenness in the particular driveway surface, but he then instructed that it was necessary to qualify any such conslusion immediately with an identification of the problem to which it gives rise, namely, hindsight: at [97]. As he then goes on to hold, the question that the statute (or common law) presents is what would have been the reasonable response of the occupier “before the accident happened”: at [97].

[28] Finally, in Neindorf, Callinan and Heydon JJ held that knowledge of the actual joint and unevenness of it is not the same however as an appreciation of it as a danger, observing that there was no evidence of any previous problem or accident caused by the joint and that the unevenness in question was a kind often encountered: at [116]. As further stated by them, it was their opinion that it was an overstatement to describe the “slightly raised concrete on one side” as a “danger” of which the occupier was, or should have been aware, holding that, therefore, it was not unreasonable for the occupier not to have taken measures to guard against the slight risk, at most, that it presented: at [116].

[29] Although many other cases were brought to the Court’s attention as being relevant, most of those cases were simply decisions made on the basis of factual circumstances which had some similarities with, but also some differences from, the circumstances of the case under consideration here. As emphasised by Gleeson CJ and Kirby J in Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422, decided cases are “fact-sensitive” and it is a “sterile exercise”, involving “a misuse of precedent,” to “seek a solution” to one case based on the “facts” in other cases: at 425 [2]. Examples of individual circumstances, as illustrated by the differing outcomes in Wellington Shire Council v Steedman [2003] VSCA 115 and Warrener v Australian Capital Territory [2004] ACTCA 9, both of which involved tripping in a car park, show the difficulty in attempting to apply particular fact situations as guidance to the outcome of a case where the factual circumstances are significantly different. Further, reference to Ellis v Uniting Church in Australia Property Trust (Q) [2008] QCA 388, although containing much that is of universal relevance, involved a case in which Fraser JA, with whom McMurdo P and Mackenzie AJA agreed, held was one where there was no occasion to consider the difference between the measure of the duty of care owed by an occupier of private land to an entrant upon that land and the measure of the duty of care owed by a local authority to users of a public highway, or whether – appropriate to the present case – there is any difference between the content of duty owed by a “commercial occupier” and by a “residential occupier” of land upon a which a plaintiff is injured (which may involve whether it was necessary to decide whether a “commercial occupier” of such land owes a “higher duty” than that are owed by a local authority to users of a footpath within its local government area): at [25]. Nevertheless, in referring to the “Shirt calculus”, Fraser JA held that the correct approach is to judge whether the magnitude of the risk and the degree of probability of an accident were so slight that reasonableness did not require any corrective action on behalf of the occupier: at [29]. What is of use in this case is his further discussion of the relevance of the location of the accident to the negligence issue, referring to the obvious unlikelihood that many pedestrians in that case would walk on the very edge of a footpath where the adjacent surface was appreciably lower than the footpath and that that bore upon the magnitude of the risk that someone would trip on a raised paver (which was a question that was undoubtedly relevant to the reasonableness of the occupier’s failure to notice and correct the defect): at [40]. Lastly, with respect to obviousness of the risk, Fraser JA, after accepting the submission that the possibility that users of the footpath might not act carefully or prudently was a relevant factor, held that it did not mean that a failure by the occupier to notice and correct the raised paver “bespoke negligence”, particularly in circumstances where there was a finding that the unevenness should reasonably have been observed by someone choosing to walk on that border, because that could properly be taken into account as bearing upon the question whether the risk required a response, referring to Thompson at [36]: at [42].

[30] Before leaving the issue of negligence in a case such as this, it is important to bear in mind recent observations by the Queensland Court of Appeal, concerning the role of the primary judge, in Lusk & Anor v Sapwell [2011] QCA 59. There, Muir JA, speaking generally for the court, referred to the inappropriate and impermissible use of the benefit of hindsight in the assessment of liability, holding that it did appear that the primary judge may have focused unduly on the circumstances of the incident rather than on the response of a reasonable person in the position of the employers (in that case) having regard to the prospect of the risk of injury: at [22].

Civil Liability Act Applicable?

[31] Noting that this incident occurred on 4 July 2005, the CL Act, at the relevant time, contained the following provisions in the following terms.

[32] Section 4(1) stated that, subject to s 5, the CL Act applies to any civil claim for damages for harm. In turn, s 5(b) provided that the CL Act does not apply in relation to any civil claim for damages for personal injury if the harm resulting from the breach of duty owed to the claimant is or includes an injury defined under the Workers’ Compensation and Rehabilitation Act 2003, other than an injury to which s 34(1)(c) or 35 of that Act applies.

[33] Most usefully, those sections were considered by the Queensland Court of Appeal in Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48; [2006] 1 QdR 519, particularly in the decision of Keane JA, with whom de Jersey CJ and Muir J (as he then was) agreed. As in that case, the parties here did not contend that either of the sections mentioned in s 5(b) of the CL Act had any relevance.

[34] Keane JA expressed the effect of the exclusion as concerning those claims which involve the assertion that the personal injury is caused by the breach of duty by a non-employer and occurs in circumstances where the claimant’s employment activities nevertheless also contribute to the occurrence of that injury in a way “which is significant”: at 529 [24]. As Keane JA went on to hold, whether the contribution of the employment activities was, or was not significant, involves a consideration of issues of causation and causal potency in the relationship between the breach of duty and the employment activities and the fact that, on this view, if a claim for damages for breach of duty against a person other than an employer is to be excluded from the purview of the CL Act by this method, the claim must be one where the employment and its significant contribution to the occurrence of the injury “can be seen to be a material ingredient of the claim made against that person”: at 529 [24].

[35] By way of illustration of this point, Keane JA stated that if the plaintiff’s claim there were to be formulated in a pleading in a way that included an allegation that the plaintiff was a passenger in a motor vehicle “in the course of his employment”, or that the motor vehicle in which he was a passenger was on the road “because of the exigencies of the plaintiff’s employment”, those allegations would be liable to be struck out as immaterial and embarrassing to his claim: at 529 [26].

[36] In this case, the plaintiff has pleaded not only that the plaintiff was employed as a salesperson but also that he was at the Centre in his capacity as a salesperson and, further, that he was there as part of his employment duties walking through the car park of the Centre when he “tripped over” a raised lip. But the mere fact of pleading allegations about employment does not satisfy the test. The allegations just mentioned are immaterial to the claim, at least in so far as they allege “employment”. Necessarily, the reason that the plaintiff was on the premises was because the defendant had made the Centre available for the purposes of exhibiting the goods and wares of salespersons; but it is not relevant that the plaintiff was walking through the car park because of the “exigencies” of his employment. In other words, the formulation of the plaintiff’s claim here against the defendant does not require any allegation that the plaintiff’s employment made a material contribution to the injury which resulted from the breach of duty owed to the plaintiff, whether as a contributing factor to the breach of duty or to the occurrence of the injury as a result of that breach of duty: see Keane JA at 529 [25].

[37] Accordingly, since the duty owed by the defendant here to the plaintiff was a duty owed to the plaintiff as a person on the premises who had a commercial interest in attending the premises, the plaintiff’s activities “as an employee” were irrelevant to the duty which was owed, irrelevant to the breach of that duty and irrelevant to the injury caused as a result of that breach: see, again, Keane JA at 530 [28]. Thus, I conclude that this claim is not excluded from the provisions of the CL Act.

[38] Although that outcome could have some effect on the application of Chapter 2 of the CL Act, it was not argued before me that the provisions of that Chapter, particularly those arising from the meaning of “obvious risk” in s 13 or those arising from the standard of care in relation to contributory negligence in s 23 meant that the applicable law in any way differed from that applying under the general common law. On the other hand, it is clear that the application of the Act does have some effect here in so far as Part 3 of Chapter 3 is engaged in the circumstances.

Liability of Defendant

[39] Besides the facts already canvassed with respect to the layout of the Centre where the incident occurred and the circumstances of the plaintiff being injured, I conclude, consistently with the evidence led, that the plaintiff has not established that any other incident of tripping, stumbling or other instability occurred to any other person in the area where a difference in height in this lip between the two concrete slabs existed, it being over a number of metres only. Of course, that in itself does not establish the absence of a risk, although it is indicative of the low magnitude of the risk that did exist and is relevant to the probability of occurrence.

[40] In addition, the defendant, as the evidence of Mr Chalmers indicates, did have a system of inspection of the entire area (for which picking up movement of a joint would be a part of what that system was “looking for”). That system of inspection did not pick up this particular irregular lip. As was observed by Mr Chalmers, he considered that the height of the lip “didn’t jump out and say, yes, there’s a very dangerous situation here”. The addition of such an intensifier does not change the impact of the non-observation about the “danger”, as mere failure of this kind does not of itself bespeak negligence.

[41] As to the rectification undertaken afterwards, Mr Chalmers stated: that, as a result of his inspection of this section of the lip after the accident, it was decided to get a concrete grinder to take some of the height off the higher section of the concrete; and that when that was done was that a small slope was created or, to use a “better term” (according to Mr Chalmers), a small section was battered back as a transition between the two heights. Mr Chalmers added that, had the accident not occurred, it was doubtful that it would have been identified as work required to be done. That is, it was only done because of hindsight.

[42] As to the actual cost of what was effected after the accident, Mr Chalmers estimated that it would have been a few hundred dollars, although he could not recall exactly.

[43] Looking at this issue of negligence with foresight, rather than hindsight, I conclude that the magnitude of the risk in the small area affected – that is, small as relative to the size of the whole of the docking, driveway and parking areas – was slight and the degree of probability of its occurrence was also slight. Firstly, at its highest, the lip was just over 20 mm (being significantly less than 1 inch in height) and it ran from such a “high” point back to being flush over a length of a few metres only. Secondly, this was a parking area where not only cars but also large trucks and, as shown in the photographs, very large vehicles (carrying considerable weights) parked. Thirdly, there was a marked, multi-coloured walkway which was available to the plaintiff and about which there was no contest that it was, relevantly, even over its entire surface. That, at least, has an effect on what should be a reasonable response by an occupier such as the defendant here, although it is noted that drivers, or other persons unloading such vehicles that did park in the dock might, from time to time at least, traverse the area of the lip. Even so, there is no reported case of any incident at all prior to 4 July 2005 (from 1995); and given its purpose it must have been subjected to numerous pedestrian movements. Fourthly, this was a car park, and a docking area, and was not a hallway, or even a large entrance area to the exhibition hall, or halls, itself or themselves. It cannot be unexpected that there might be small differences in height in the various slabs of concrete that are laid in such a vehicle intensive area, which may well move our time to a small degree. As such, any such hazard, if it can be characterised that way, was the kind of hazard that might have been encountered daily by people using car parks such as the one in this Centre. As such, slight unevenness can be said to be a normal hazard of daily life in such a place.

[44] It should also be concluded that such unevenness which did cause the plaintiff to stumble here was not noted during the defendant’s regular inspections (canvassed earlier). I conclude that that was a result of the slightness of the risk that it presented, rather than that it was un-observable.

[45] As for the obviousness of the risk, and its attendant factors, it is my conclusion that even if an occasional person might fail to observe the difference in height, a person awake to the fact that this was a car park would thereby take some steps to observe the areas which were being traversed were discernibly different and thereby would have observed that there was a slight drop from the dock area to the designated walkway area. From the photographs that show the lip, it is clear that the gap is itself highlighted by the break between the single continuous yellow painted line in the docking area and the multi-coloured paintwork on the walkway area. This is particularly so in the photographs in Exhibit 1, which were the photographs taken relatively contemporaneously.

[46] What, then, do these conclusions yield concerning what should have been a reasonable response on behalf of the defendant, as occupier and as having a commercial interest in having persons use these areas for, amongst other things, pedestrian purposes? It is my conclusion that, given the low magnitude of the risk in all of its manifestations, given the degree of probability being low of an accident resulting from this condition of the lip, and given the obviousness of the change of colouration of the surfaces and the remoteness of the likelihood of non-observation when taking the path which the plaintiff did, the reasonableness of response did not require any corrective action, even that undertaken some week, or weeks, later at no greatly significant cost.

[47] In summary, the plaintiff has not established to the relevant standard that the duty of care that the defendant clearly owed to him was breached by permitting or allowing, or failing to remove, the slight lip that existed in the transition from the concrete slab of the docking area to the concrete slab of the walkway and general driving area. Noting that conclusion, and the reasons expressed for it, it would not be helpful to express any views about contributory negligence.

Damages

In the event of an appeal, damages were assessed at:

(a) Past economic loss $6,567.29

(b) Interest on past economic loss $283.21

(c) Superannuation loss on past economic loss $591.96

(d) Past special damages $11,041.72

(e) Future special damages $1,000.00

(f) Fox v Wood damages $2,105.00

(g) General Damages $6,200.00

(h) Future Economic Loss $10,000.00

 Brisbane Barrister – David Cormack

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