Are the Defences Available to Highway Authorities Equally Relevant to Private Occupiers? Melanie Cox | January 2006
The New South Wales Court of Appeal recently overturned a decision in favour of a defendant because the trial judge applied the same tests that apply to highway authorities to a private occupier. The case raises the question of just how far the defences that are available to highway authorities are relevant to private occupiers and also examines the role played by the concept of an “obvious risk” in the process of determining the occupier’s liability. The case of Bartolo v Owners of Strata Plan No. 10535 & 2 Ors [2005] NSWCA 256...
Facts For five years before his accident the plaintiff, David Bartolo, had been working as a cable television installer and had fitted cables at a range of locations. However, he had never visited the particular premises in question before. To get to where he was to do the installation, the plaintiff had to walk up the right hand side of a driveway situated between two blocks of units and used by both pedestrians and vehicles. He was walking behind his two co-workers, carrying a 10-foot ladder over his shoulder. The driveway was constructed of different sized concrete sections and contained a number of raised lips at the junction where each of the concrete sections met. The plaintiff caught his foot in a 51mm raised lip and fell, sustaining significant injuries. During the trial the plaintiff gave evidence that in the course of his work he had walked along many driveways and that if there were imperfections such as height differentials, they were usually marked in a way that would draw his attention to them by devices such as yellow lines. The plaintiff also alleged that he had had to avoid cars coming down the driveway and those that were parked on its right-hand side. He was also taking care that the ladder did not strike his co-workers who were walking in front of him, so he was not always able to keep a lookout for the surface of the pathway.
At first instance The trial judge based his conclusions primarily on Ghantous v Hawkesbury City Council1 and Hastings Council v Giese2; cases dealing with the duties of highway authorities to persons using public roads and footpaths. The trial judge drew no distinction between a highway authority and a private occupier, with regards to the extent of the duty of care owed to a person in the plaintiff’s position. In the District Court of NSW, Judge O’Reilly at first instance concluded that:
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(a) In a general sense, there could be “a foreseeability” that somebody might trip, however people are regularly required to walk on uneven surfaces on both public and private land3 and the plaintiff failed to show that the driveway was dangerous. (b) Pedestrians are generally more able to see and avoid imperfections in a road surface4, and it was “quite obvious” that the concrete driveway was “not in good condition at all”. Furthermore, the imperfections in the driveway were of a kind that were common across the country and it was reasonable to expect the plaintiff to have seen the imperfections as he walked along in daylight5. (c) Pedestrians are ordinarily required to exercise reasonable care for their own safety by keeping a proper lookout and avoiding obvious hazards such as uneven paving stones, tree roots or holes6. (d) There was no breach of duty because the concrete lip was an obvious danger and readily perceived, unlike a situation where there may be a foreseeable risk of harm even to persons taking reasonable care for their own safety.
On Appeal The Court of Appeal allowed the plaintiff’s appeal, and ordered a new trial on both the issues of liability and damages, holding that the trial judge: (a) Had not addressed what kind of risk is reasonably foreseeable by an occupier with respect to a privately owned shared internal driveway, as opposed to a highway authority. (b) Had incorrectly considered the relevant risk exclusively by reference to the obviousness of the risk, but had not considered the relevant risk by reference to the factors in Wyong Shire Council v Shirt7 which determine what should be a reasonable person’s response to that risk in view of: • • • •
the magnitude of the risk; the degree of probability of its occurrence; the expense, difficulty and inconvenience of taking alleviating action; any other conflicting responsibilities which the defendant may have, properly balanced out..
The Court concluded that the nature of the risk was not far-fetched or fanciful. But whether the risk was reasonably foreseeable would depend upon factors properly the subject of a re-trial. In particular in commenting upon the reliance placed by the trial judge on the decision in Gantous, Justice Santow, (with whose judgment the other members of the bench agreed) said; “The passage quoted (from Gantous) ought not to be understood as equating the content of the present duty of care to that of a highway authority with responsibility for kilometres of roadway. It must be clearly borne in mind that we are here dealing with the duty of care of a private owner with respect to a relatively short internal driveway and in relation to an invitee using it. While the reasonable steps to be taken in relation to a pedestrian on a public roadway by a statutory authority brings to bear the same Shirt calculus factors, they are applied to a very different factual context, namely what may consist of hundreds of kilometres in a particular municipality or shire...”8
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Implications The Court of Appeal’s decision is a clear indication that it considers that a higher standard of care is to be applied to occupiers of commercial and private premises when it comes to the condition of a roadway or footpath that they are in charge of. The rationale for this appears to be that private occupiers have less area under their control that public highway authorities and hence are expected to take better care. Specifically in addressing liability in situations such as this a distinction must be drawn between decisions relating to the liability of highway authorities and those dealing with the liability of private and commercial occupiers and the degree of reasonable care required of occupiers in each situation. The decision is a further confirmation that the obviousness of a risk is but one factor to consider in the factual scenario in the course of determining liability. It indicates that it is not, as it might appear from other recent instances where the concept has been applied, a kind of threshold test the plaintiff must surmount before the extent of the defendant’s duty of care is examined. Though the provisions of the Civil Liability Act 2002 were not material to the decision the Act may still have a bearing when the case is submitted for retrial.
Footnotes (2001) 206 CLR 512 [2003] NSWCA 178 3 Ghantous (supra) per Gleeson CJ at 526 4 Ghantous (supra) per Gaudron, McHugh and Gummow JJ at 581. 5 Richmond Valley Council v Standing (2002) NSWCA 359 per Heydon JA at [54] 6 Ghantous per Gaudron, McHugh and Gummow JJ at 581 7 (1980) 146 CLR 40 8 at par 27. 1 2
For more information please contact Melanie Cox Lawyer T: 02 8257 5700 melanie.cox@turkslegal.com.au
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