Duty+of+Care+and+the+Civil+Liability+Act+2002.pdf

DUTY OF CARE AND THE CIVIL LIABILITY ACT 2002 (NSW)

RECENT CASES

Presented by Scott Holmes and Manal Hamdan

17 May 2012

NOVAKOVIC v STEKOVIC [2012] NSWCA 54

JOVANOVSKI v BILLBERGIA PTY LIMITED [2011] NSWCA 135

STRONG v WOOLWORTHS LIMITED [2012] HCA 5

LAOULACH v IBRAHIM [2011] NSWCA 402

TURJMAN v STONEWALL HOTEL PTY LTD [2011] NSWCA 392

www.holmanwebb.com.au

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1. NOVAKOVIC V STEKOVIC [2012] NSWCA 54

1.1 Facts

(a) The Respondents, Mr and Mrs Stekovic, were the brother and sister-in-law of the Appellant, Ms Novakovic.

(b) Mr and Mrs Stekovic owned and occupied the premises (the Premises ) where Ms Novakovic slipped. They were also the owner of a bull mastiff/kelpie dog called “Cougar” (the Dog ).

(c) As at 19 January 2008, Mr and Mrs Stekovic had lived at the Premises for a couple of years, during which time Ms Novakovic had visited fortnightly. The Dog was usually kept in the backyard of the Premises, although Ms Novakovic was aware that approximately one week before 19 January 2008, there had been a break-in at the Premises and Mr and Mrs Stekovic had brought the Dog back to the house to protect it.

(d) Ms Novakovic had a general fear of dogs. There was no evidence that Mr and Mrs Stekovic were aware of her fear.

(e) On 19 January 2008 Ms Novakovic, accompanied by three females, one of which was a child, visited the Premises on invitation from Mr and Mrs Stekovic. Mrs Stekovic opened the door and they all entered the Premises. When they entered the Premises the Dog was in the lounge. Ms Novakovic had not been told the Dog was in the house. Ms Novakovic had never seen the Dog in the house before.

(f) The three other friends ran to the other side of the lounge, leaving Ms Novakovic isolated. The Dog stood up and moved towards Ms Novakovic, it did not bark or run.

(g) Ms Novakovic went to the front door of the Premises and left, closing the screen door behind her. As Ms Novakovic closed the door, she slipped on the tiled patio floor and fell, injuring herself (the Accident ). The whole incident took 2 or 3 seconds.

1.2 The Legislation

(a) The relevant principles are those contained in Section 5B of the Civil Liability Act 2002 (NSW) (CLA), which provides as follows:

Duty of Care

5B General principles

(1) A person is not negligent in failing to take precautions against a risk of harm unless:

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

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(b) the risk was not insignificant, and

(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a) the probability that the harm would occur if care were not taken,

(b) the likely seriousness of the harm,

(c) the burden of taking precautions to avoid the risk of harm,

(d) the social utility of the activity that creates the risk of harm.

1.3 The District Court Judgment

(a) Ms Novakovic initially framed her case on the patio floor having been too slippery, however, there was a joint experts’ report that the tiles on the patio floor afforded adequate slip resistance for normal circumstances. The most significant factor was Ms Novakovic’s reaction to the Dog.

(b) Ms Novakovic submitted that the Court should consider whether the Accident was foreseeable and if so, then find that Mr and Mrs Stekovic had a duty of care to take reasonable precautions to restrain the Dog to ensure it did not move towards Ms Novakovic and cause her to retreat rapidly. Ms Novakovic submitted that what occurred was not far fetched and it could have been anticipated that she would have left the Premises quickly and slipped as she was doing so.

(c) Ms Novakovic also submitted that the Judge should find that she was in a class of persons who were scared of dogs who might be expected to visit the Premises and react as she did, and that it was reasonable for her to “bid a hasty retreat . . . upon seeing a dog of that nature with her knowledge of it”.

(d) Mr and Mrs Stekovic submitted that it was not reasonable for them to expect Ms Novakovic’s reaction. They submitted that Ms Novakovic could have reacted in other, reasonable, ways such as by asking Mr and Mrs Stekovic to do something about the Dog, or move away in a slow and safe manner given the distance between her and the Dog and the fact it was not moving aggressively.

(e) On 20 April 2011 Knox DCJ found in favour of Mr and Mrs Stekovic. His Honour found that what occurred was not foreseeable, nor was the risk of the events occurring foreseeable. Moreover, the risk of the harm occurring was insignificant. Further, that Mr and Mrs Stekovic neither could, nor should have, anticipated Ms Novakovic’s reaction, even if they had considered the position of a person invited to the Premises who was afraid of dogs. His Honour found

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that it could not have been anticipated that a person in the position of Ms Novakovic would react in the way she did and then slip and fall when she left the Premises. It was not reasonable for Mr and Mrs Stekovic to have taken precautions against the risk of harm having regard to the factors set out in Section 5B(2)(a) of the CLA.

1.4 On Appeal

(a) On Appeal Ms Novakovic submitted that the primary Judge had erred in the following three respects:

(i) failing to determine whether the Dog represented a danger in respect of which it was foreseeable and reasonable for Ms Novakovic to take urgent evasive action;

(ii) finding that Mr and Mrs Stekovic neither could, nor should have anticipated an urgent attempted departure because the risk was insignificant;

(iii) finding that it was not reasonable to expect Mr and Mrs Stekovic to remove the Dog from the house before inviting the entry of Ms Novakovic.

(b) Ms Novakovic submitted that Mr and Mrs Stekovic knew, or ought to have known, that there was a foreseeable risk that an entrant to the house, with the knowledge that the Dog was a “dangerous dog”, would, upon seeing the Dog in the house, fear it and run from the house in panic and could be injured in the course of flight. Ms Novakovic further contended that the risk was “not insignificant” and that a reasonable person in the position of Mr and Mrs Stekovic would have taken the simple precaution of keeping the dog outside.

(c) Ms Novakovic accepted that her reaction to seeing the Dog was not because of anything the Dog did, but was because of her fear of dogs and she contended it was also because of what she had been told about the Dog prior to the Accident. She accepted that her panicked reaction was not rational.

(d) Mr and Mrs Stekovic submitted that the primary Judge did not err. They emphasised that His Honour found the Accident was caused by Ms Novakovic’s sudden exit from the Premises. They contended that Ms Novakovic’s complaint that the primary Judge failed to find that the Dog was “dangerous” was misconceived in light of the evidence that Ms Novakovic had a morbid fear of dogs and avoided any contact with them.

(e) Mr and Mrs Stekovic submitted that Ms Novakovic’s analysis of what happened was retrospective and was not supported by the objective circumstances. They submitted that on a prospective analysis, there was nothing in the evidence that suggested the Dog was dangerous or that Ms Novakovic believed that she was encountering a dangerous dog on the day of the Accident. They pointed out that the Dog had not reacted in an aggressive manner when Ms Novakovic entered the house.

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(f) Mr and Mrs Stekovic contended that the fact that the precautions that could have been taken were simple did not mean that they were a reasonable response in the circumstances. Mr and Mrs Stekovic submitted His Honour Knox DCJ was correct in finding that Ms Novakovic’s reaction was unreasonable and unforeseeable.

(g) McColl JA, with Whealy JA and Tobias JA agreeing, confirmed that as occupiers of the Premises, Mr and Mrs Stekovic owed Ms Novakovic a duty to take reasonable care to prevent injury to her on the assumption she was using reasonable care for her own safety. What was reasonable turned on the circumstances of Ms Novakovic’s entry upon the Premises. The duty to take reasonable care required Mr and Mrs Stekovic to protect Ms Novakovic, or the class of person of which she was a member, from a “not insignificant” risk which could reasonably be foreseen and avoided. The measure of the discharge of duty was what a reasonable would, in the circumstances, do by way of response to the foreseeable risk.

(h) The Court of Appeal confirmed that whether Mr and Mrs Stekovic ought to have taken precautions turned upon the foreseeability of the risk, whether the risk was not insignificant and whether in the circumstances, a reasonable person in Mr and Mrs Stekovic’s position would have taken those precautions. The inquiry must be answered prospectively, before the Accident occurred, not in hindsight.

(i) The Court of Appeal held that the inquiry was not confined to what could have been done to eliminate or reduce the risk, but that it was necessary to ask whether it would have been reasonable for Mr and Mrs Stekovic to take those measures. The knowledge of how Ms Novakovic came to be injured had to be excluded when considering whether Mr and Mrs Stekovic were obliged to take any precautions in the circumstances of having the Dog in the Premises to which Mr and Mrs Stekovic were invited.

(j) The Court of Appeal pointed out that a person does not breach his or her duty of care merely because there are steps that he or she could have taken to avert the risk that actually materialised.

(k) Sections 5B(1)(a) and (b) of the CLA required consideration of whether the presence of the Dog in the house posed a foreseeable and not insignificant risk in the circumstances. It was only necessary to consider what a reasonable person would have done by way of response to the risk if Section 5B(1)(a) and (b) were satisfied.

(l) The Court of Appeal noted that there was no evidence from Ms Novakovic that she feared the Dog because “it had been described to her as dangerous”. It was Ms Novakovic’s evidence at trial that she did not like dogs in general and would “take steps to avoid any dog”. The Court of Appeal noted that there was no evidence that Mr and Mrs Stekovic were aware of that tendency.

(m) The Court of Appeal stated that approaching the Accident prospectively, it was significant that Mr and Mrs Stekovic were prepared to allow Ms Novakovic and the other attendees to enter the house while the Dog was in the lounge. The

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Court of Appeal found that it might be inferred that Mr and Mrs Stekovic were of the view that the Dog posed no risk to entrants in such a situation. The inference was borne out by the fact that the Dog did not act aggressively to Ms Novakovic before she fled.

(n) The Court of Appeal did not accept that Mr and Mrs Stekovic ought to have foreseen that an entrant might have a general fear of dogs, or, confining the inquiry to Ms Novakovic, that they ought reasonably to have foreseen her reaction.

(o) The Court of Appeal held that the primary Judge was entitled to conclude in the circumstances that it was not incumbent on Mr and Mrs Stekovic to foresee that there was a risk that Ms Novakovic would, upon seeing the Dog in the house, fear it and run from the house in panic. The Court of Appeal found that “the Appellant’s submissions appear to be shaped more through the prism of hindsight than foresight”.

(p) As the requirements of Sections 5B(1)(a) and (b) were not satisfied, it was not necessary to consider Section 5B(1)(c), namely, whether a reasonable person in the position of Mr and Mrs Stekovic would have taken precautions to guard against a foreseeable and not insignificant risk.

1.5 Discussion

(a) The decision demonstrates the fact that if a risk was not foreseeable and was not insignificant, there is no need to consider whether a reasonable person would have taken precautions in the circumstances.

(b) Just because it is apparent that action could have been taken to avert the risk, it does not necessarily follow that the duty of care owed in the circumstances had been breached.

(c) Consideration of whether a risk was foreseeable and not insignificant has to be viewed prospectively from at the time that the precautions ought to have been taken, not with the benefit of hindsight once the circumstances of the incident in question have unfolded.

2. JOVANOVSKI V BILLBERGIA PTY LIMITED [2011] NSWCA 135

2.1 Facts

(a) The Respondent, Billbergia Pty Limited (the Respondent ), was engaged in a building project at Meadowbank in Sydney (the Site ). There were major excavation works being conducted at the Site.

(b) Mr Jovanovski (the Appellant ) was one of 3 drivers who drove trucks owned by the Respondent. There were up to 10 other drivers and trucks engaged by the Respondent. There were up to 15 trucks at the Site on some occasions. Apart from truck drivers, there were also operators of excavators, “backhoes” and a bobcat. There were also other staff on Site such as labourers and builders.

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The project at the Site was a large project involving the construction of about 680 home units.

(c) The Appellant was unfortunately not a popular man on the Site. In either November or December 2003 he was involved in an incident with another driver called Mr Ricky Denton. Mr Denton asked the Appellant to swap a cartage allocation and when the Appellant refused, Mr Denton punched him in the face. The Appellant reported the incident to the foreman on the Site, Mr Brendan Cronin.

(d) Mr Cronin later provided a statement to an insurance investigator in which he described the Appellant as having a reputation “as being very short tempered and abrupt in his manner” and “unpopular with other Site staff”. Mr Cronin also stated that the Appellant complained on a regular basis about minor matters that no other drivers complained about.

(e) On a day early in February 2004, the Appellant went to open the door of his truck and found that grease had been placed on the door handle. He told Mr Cronin. A few days, or perhaps a week later, the Appellant found that grease had been placed on the door handle of his truck again and also on the steps behind the truck cabin giving access to the top of the truck. About a week later he found grease smeared in the same locations. He also reported these occurrences to Mr Cronin.

(f) On 18 February 2004, the Appellant slipped on the steps at the back of his truck (the Accident ). After the fall he found grease on the steps at the back of the truck. He had checked for grease on the door handle and the steps behind the truck cabin but not at the back of the truck.

2.2 The Legislation

(a) The relevant principles in assessing whether the Respondent was negligent are those contained in Section 5D of the CLA which provide as follows:

Causation

5D General principles

(1) A determination that negligence caused particular harm comprises the following elements:

(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation ), and

(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability ).

(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm

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should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:

(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.”

2.3 The District Court Judgment

(a) On 31 March 2010 His Honour Davies J found that the Respondent owed to the Appellant the duty of care that would have been owed to him as an employee, involving providing a safe system of work including proper supervision of other persons on the Site for whose behaviour the Respondent was responsible.

(b) It was held that because of the complaints of grease being placed on the door handle and steps of the truck earlier in 2004, the Respondent should have warned all others working on the Site that if they were caught putting grease on any person’s truck, they would be dismissed. This could have been done by a written notice posted at the Site or at a “toolbox meeting” where everyone was called together. His Honour held that Mr Denton should have been specifically warned. The Respondent did not provide any warnings of the nature described by His Honour. Accordingly, the Respondent had breached its duty of care to the Appellant.

(c) His Honour then considered the issue of causation, having regard to the principles in Section 5D of the CLA. His Honour made particular reference to Adeels Palace Pty Limited v Moubarak [2009] HCA 48; (2009) 239 CLR 420, that the Appellant “does not succeed merely by showing that particular conduct might have deterred or prevented the harm”. His Honour stated that Adeels Palace made it clear that the breach of duty by the Respondent could not be regarded as a necessary condition of the occurrence of the harm for the purposes of Section 5D of the CLA. His Honour held that “the matter can be put no higher than the appropriate warning might have deterred or prevented the occurrence which caused the injury to the Plaintiff”.

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(d) His Honour found that he could not be satisfied on the balance of probabilities that a warning coupled with a threat of dismissal would have been more likely than not to have deterred the perpetrator from further acts of grease smearing. His Honour had regard to the amount and nature of other persons on the Site and the fact that the majority of drivers were not direct employees of the Respondent, and dismissal from the Site would not have had the same implications for subcontractors as it would have done for employees.

(e) Factual causation was not established and His Honour found in favour of the Defendant (the Respondent).

2.4 On Appeal

(a) On 2 June 2011 the NSW Court of Appeal dismissed the appeal.

(b) The Appellant did not submit that the case was an “exceptional case” to which Section 5D(2) of the CLA applied, whereby factual causation should have been found even though the Respondent’s negligence was not established as a necessary condition of the occurrence of harm.

(c) The Appellant submitted that the trial judge should have found that it was more probable than not that, had the warning been given, the grease smearing which caused the Accident would not have occurred.

(d) The Appellant accepted that it could not properly be submitted that Mr Denton was the likely perpetrator, but he urged upon the Court the deterrent effect of a warning, by notice or at a “toolbox meeting”, pointing out the risk of injury from smearing grease on the truck and the perpetrator’s possible exposure to criminal liability and certainty of instant dismissal.

(e) The Appellant submitted that there was no reason to believe that the perpetrator intended to injure the Appellant or was more than a prankster and that persons on the Site “would have been grown-ups who could be expected to act rationally”.

(f) Giles JA, with Hodgson JA and MacFarlan JA agreeing, found that the risk of injury to the Appellant from grease on the steps was plain and it was “difficult to accept that whoever applied the grease was a mere prankster, or was unaware of the seriousness of what he or she was doing”. The Appellant’s unpopularity was not limited to Mr Denton or the excavator operators. A number of persons on the Site could have been determined to apply grease to the truck. That class of persons was left open-ended on the evidence and contained members over which the Respondent had a varying degree of sway over.

(g) The Court of Appeal held that in light of the series of applications of grease in 2004, the perpetrator “had departed from fully rational conduct” and was intent on “something of a campaign against the Appellant”. The Court considered that it was likely that the perpetrator already appreciated his or her exposure to criminal liability and to dismissal from his employment if discovered.

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(h) Although a warning may have deterred the person from the last application of grease, this would have depended on the person’s resolve and the likelihood of discovery. The Court considered the resolve appeared to have been firm and there were opportunities for application of grease without discovery. It was not enough that the warning might have deterred the person.

(i) The Respondent submitted that the grease that had been applied to the steps at the back of the truck could have been applied early in February, so that even if a warning had been given after the second or third grease application, it would not have prevented the Accident. In light of the Court’s finding that it was not enough that a warning might have deterred the perpetrator from applying grease to the truck, it was not necessary for the Court to decide this issue.

(j) The Court of Appeal agreed with His Honour Davies J’s conclusion as to causation and the appeal was dismissed. Section 5D(1)(a) CLA was not satisfied. Factual causation was not established.

(k) The most that could be said about an appropriate warning was that it might have prevented the perpetrator from applying the grease which caused the Accident. Section 5D(1)(a) of the CLA required the Appellant to establish, on the balance of probabilities, that the negligence of the Respondent was a necessary condition of the occurrence of the harm. The range of possibilities as to who applied the grease and when, and the effect any warning would have had, had it been made, could not lead the Court to make such a finding on the balance of probabilities.

2.5 Discussion

(a) The decision demonstrates that although a duty owed may have been breached, Section 5D(1)(a) of the CLA requires that the breach must be a necessary condition of the occurrence of harm. It highlights the principle in Adeels Palace that the Appellant “does not succeed merely by showing that particular conduct might have deterred or prevented the harm”. (emphasis added)

(b) Although a preventative measure might have prevented the cause of a particular incident, it must be found that, having regard to the particular circumstances, the preventative measure would, on the balance of probabilities, have prevented the cause of that incident. A mere possibility is insufficient.

3. STRONG V WOOLWORTHS LIMITED [2012] HCA 5

3.1 Facts

(a) At around 12:30pm on 24 September 2004, Kathryn Strong (Strong ), who required the use of crutches to walk, was shopping in a sidewalk area (the Sidewalk ) near a food court in a shopping centre (the Premises ) for which Woolworths Limited (Woolworths ) was responsible, when she moved to her right to inspect a pot plant causing the tip of her crutch to come into contact with a chip, or grease deposited by the chip, causing the crutch to slip from under her and for her to fall (the Accident ).

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(b) A company called CPT had a contract with a cleaning services company which included an obligation to ensure “floors are to be free of any rubbish or spillages”, however, the area for which it was responsible did not include the Sidewalk. That company retained a second cleaner between 11:00 a.m. and 2:00 p.m. i.e. the lunchtime period.

(c) Woolworths employed a person as a “people greeter”. That person was required to stand in the entrance of Woolworths’ Big W store. It was part of her duties to keep an eye out for spillages in the Sidewalk area. Woolworths did not have a periodic system of inspection and cleaning in place on the day of the Accident.

3.2 The legislation

(a) The relevant principles in assessing whether Woolworths was negligent are those contained in Section 5D of the CLA which provide as follows:

Causation

5D General principles




(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.




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3.3 District Court Judgment

(a) Strong alleged that Woolworths was negligent in failing to institute and maintain a cleaning system to detect spillages and foreign objects. The Trial Judge, Robison J, held that Woolworths was the occupier of the Premises and owed a duty of care to persons coming within it.

(b) The District Court Trial Judge found in favour of Strong, the essence of his reasoning being “if other people could see [the grease marks] apart from the Plaintiff after the event, then it begs a serious question as to why it was not seen by an employee of [Woolworths] in those particular circumstances and it should have been removed either by [Woolworths] or [Woolworths] alerting a cleaner to remove it which was entirely open to [Woolworths] to do and if that had been done the [Plaintiff] simply would not have come to grief. I can put it no more simply than that. So therefore [Woolworths] is guilty of negligence”.

3.4 The Court of Appeal Judgment

(a) Although the Court of Appeal noted that the District Court Judge had not addressed either the issues of breach of duty or causation, Woolworths did not challenge the finding that it was negligent, the sole ground of the Appeal was whether Woolworths’ negligence was a cause of the Accident.

(b) The Court of Appeal found that proof of negligence did not of itself make it likely that had Woolworths not been negligent, the Accident would not have occurred. All that reasonable care required was periodic inspection and cleaning. This conclusion gave rise to the possibility that, “even if periodical inspections and cleaning had been carried out, with the minimum frequency required …, the chip fell between the last such inspection and the time [Strong] encountered it”.

(c) The Court of Appeal approached the matter on the basis that reasonable care required periodic inspection and cleaning of the area at 15 minute intervals. The Court of Appeal found on the facts that there was no basis for concluding that the chip had been on the ground for long enough for it to be detected and removed by the operation of a reasonable system of inspection and cleaning.

(d) It was held that in the absence of evidence supporting an inference that the chip had been there for some time, such that the chip was dirty or cold to touch, there was no basis for concluding that it was more likely than not that it had not been dropped shortly before the Accident.

(e) The Court of Appeal noted that the Sidewalk was very close to the food court and that the Accident occurred at lunch time. The fact that a second cleaner was engaged between the hours of 11:00am to 2:00pm provided a basis for an inference that there was an increased risk of things being dropped in the area of the food court during that time period. In light of this, the Court of Appeal held

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that it could not be concluded that it was more likely than not that, had there been a dedicated system of cleaning and inspection of the location of the Accident at 15 minute intervals, the Accident would not have occurred.

(f) The Court of Appeal found in favour of Woolworths. The Appeal was allowed.

3.5 The High Court Decision

(a) The majority of French CJ, Gummow, Crennan and Bell JJ observed that the Court of Appeal correctly held that causation is to be determined by reference to the statutory test in Section 5D of the CLA. The question for consideration was whether, as required by Section 5D(1)(a) of the CLA, Woolworths’ negligence was a necessary condition of the occurrence of the Accident.

(b) The majority of the High Court rejected Woolworths’ submission that it was necessary for Strong to point to some evidence permitting an inference to be drawn concerning when the chip was deposited. It held it was for the Strong to prove that it was more probable than not that Woolworths’ negligence was a necessary condition of the Accident, but this onus could be discharged by consideration of the probabilities in circumstances in which the evidence did not establish when the chip was deposited. The Court of Appeal had rejected this reasoning because it found the deposit of the chip on the floor was not a hazard with an approximate equal likelihood of occurrence throughout the day based on 3 factors:

(i) chips are a type of food some people eat for lunch;

(ii) the Accident occurred at lunchtime; and

(iii) the fact a second cleaner was engaged between 11am and 2pm was suggestive of an increased risk of things being dropped during that period.

(c) The majority of the High Court rejected the engagement of a second cleaner as support for a conclusion that the probabilities were against the chip being deposited before 12:15pm, i.e. 15 minutes prior to the Accident. It was also held that there was no basis for concluding that chips are more likely to be eaten for lunch than in the morning. The conclusion that the chip had been deposited at a particular time rather than any other time was speculation.

(d) The majority of the High Court held the evidence did not permit a finding of when between 8am and 12:30pm the chip came to be deposited. The Court of Appeal erred in holding it could not be concluded that the chip had been on the ground for long enough for it to be detected and removed by the operation of a reasonable cleaning system. The probabilities favoured the conclusion that the chip was deposited in a 4 hour 10 minute period prior to when an inspection ought reasonably to have been conducted as opposed to the 20 minute period immediately prior to the Accident.

(e) The High Court allowed the appeal, finding in favour of Strong.

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(f) Heydon J, dissenting, pointed out that it was for Strong to prove that the chip was deposited before 12:15pm on the balance of probabilities. The balance of probabilities is not a mere weighing exercise of two probabilities, there must also be a belief of the reality of the fact i.e. the Court must be “actually persuaded” or “reasonably satisfied” of that fact. Heydon J did not subjectively believe that the chip was deposited before 12:15pm and therefore held that Woolworths must succeed.

3.6 Discussion

(a) In many cases the reality is that the duration for which a deposit or spillage has been allowed to remain on a floor surface is not known. It is often the case that the fact that the deposit or spillage was not previously observed by anyone is what led to the circumstances eventuating in the basis of the claim.

(b) Although there may be no direct evidence as to the duration for which a deposit or spillage has been allowed to remain on a floor surface, there may be circumstantial evidence available in that regard. In Strong v Woolworths such evidence could have been the temperature or appearance of the chip. If available, such evidence may lead a Court to find that it was more probable that a deposit or spillage occurred at one time rather than another. In the absence of such evidence, the timing of the occurrence of the deposit or spillage may have an approximately equal likelihood of occurrence throughout the day. An assessment of probabilities as to when the deposit or spillage occurred will be conducted. As in Strong v Woolworths, the time outside the scope of a reasonable system of cleaning and inspection may be far greater than the time within it, leading to a finding that, on the balance of probabilities, the deposit or spillage occurred at a time prior to when the last inspection ought reasonably to have been conducted prior to the incident, thereby rendering the failure to inspect and clean to be causative of the incident in question.

(c) In Strong v Woolworths the High Court rejected as speculation the conclusion the chip had been deposited at a particular time rather than any other time on the day of the Accident, however, in another case, such a finding may not be mere speculation. For example, where a nearby café sells hot breakfast items only up until 11am and one of those breakfast items is subsequently the cause of a slip, it may be open to infer that the item had been there since no later than shortly after 11am.

(d) Every case will turn on its own facts and circumstances but the decision of Strong v Woolworths demonstrates the approach a Court will adopt in circumstances where there is no evidence as to when a deposit or spillage of a slippery substance occurred.

(e) The balance of probabilities is the standard of proof in civil proceedings set out in Section 140(1) of the Evidence Act 1995. The dissenting minority judgment of Heydon J further illustrates the long established principle as highlighted by Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 that while a mechanical balance of the probabilities may favour one finding, the Court must also be “actually persuaded” or “reasonably satisfied” of it.

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4. LAOULACH V IBRAHIM [2011] NSWCA 402

4.1 Facts

(a) The Appellant, Robert Laoulach (Appellant ), was a passenger on board a Mustang Sports Cruiser which was moored off Brighton-le-Sands in Botany Bay. He was looking to purchase the vessel from the owner, Mr El Khoury.

(b) The Appellant arranged a test drive of the vessel and the owner asked that he ensure that licensed boat drivers operated the vessel during the test drive. The Appellant organised some associates of his, Danny and Mickey, to drive the vessel during the test drive and he along with Danny, Mickey, his brothers and cousin commenced the test drive on that day.

(c) At approximately 1.30pm they arrived at Brighton-le-Sands and moored the vessel about 40 metres from the shore line. The weather was fine and they commenced diving off the boat into the water.

(d) At one stage, one of the persons on the vessel hit his shoulder diving into the water as it was becoming shallower, so they decided to move the position of the vessel to allow everybody to keep diving and swimming safely.

(e) The vessel was then moved some 15 to 20 metres further out to sea. The water at this stage was a dark blue colour and it appeared to be deep enough to safely dive into.

(f) The Appellant’s evidence was that he and the other persons on the boat dived off the bow towards the open ocean and swam to shore.

(g) After returning to the vessel the others dived back into the water and a few minutes later the Appellant dived into the area which he believed was the same place that he previously dived. At that stage the wind had picked up so the visibility of the ocean was not as good however it still seemed dark blue.

(h) The Appellant began to dive and felt his head strike the sand and at the same instance heard a loud crack. The Appellant suffered severe injuries which included becoming incomplete C4 tetraplegic (the Accident ).

4.2 Legislation

(a) The principles relevant to this judgment included the following sections of the Civil Liability Act 2002 (NSW) (CLA)

Section 5F - Meaning of “Obvious Risk ”

(1) For the purposes of this Division, an "obvious risk" to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.

(2) Obvious risks include risks that are patent or a matter of common knowledge.

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(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.

(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.

Section 5H - No proactive duty to warn of obvious r isk

(1) A person (the defendant ) does not owe a duty of care to another person (the plaintiff ) to warn of an obvious risk to the plaintiff.

(2) This section does not apply if:

(a) the plaintiff has requested advice or information about the risk from the defendant, or

(b) the defendant is required by a written law to warn the plaintiff of the risk, or

(c) the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant.

(3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection.

Section 5K – meaning of “Dangerous Recreational Act ivity”

"dangerous recreational activity" means a recreational activity that involves a significant risk of physical harm.”

Section 5L – No liability for harm suffered from ob vious risks of dangerous recreational activities

(1) A person (the defendant ) is not liable in negligence for harm suffered by another person (the plaintiff ) as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff.

(2) This section applies whether or not the plaintiff was aware of the risk.

4.3 Supreme Court Judgment

(a) The Appellant alleged that his injuries resulted from the negligence of the four Defendants who included the two operators of the vessel, the owner of the vessel, and his cousin Charbel Ibrahim.

(b) The Appellant claimed that all relevant times the vessel and those on board were under the control of the Defendants/Respondents and that he was reliant on their expertise for safety.

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(c) Although the Respondents were responsible for moving and anchoring the vessel in the second anchor position, the His Honour found that neither of them controlled the Appellant’s own assessment that the water depth was safe to dive into. The Respondents by saying “that’s far enough” or “that’s deep enough” were expressing their own opinion as to the depth of the water. The Respondents were not creating the risk or encouraging or enticing those on board into a dangerous situation.

(d) His Honour noted that where the posited duty was novel, it was important to analyse the nature of the relationship between the Appellant and the person whom was charged with having breached their duty of care, as observed by Justice Simpson in Caltex Refineries (QLD) Pty Ltd v Stavar [2009] NSWCA 258. These ‘salient’ features to be measured, included, among other things:

(i) the forseeability of harm;

(ii) the nature of the alleged harm;

(iii) the degree and nature of control able to be exercised by the defendant to avoid harm;

(iv) the degree of vulnerability of the plaintiff to harm from the defendant’s conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself; and

(v) the degree of reliance by the plaintiff upon the defendant.

(e) His Honour found that whilst the Respondents had a boating licence and had control of the vessel, their boating experience was limited and they had no experience in measuring the depth of water. Despite that fact that the Respondents were responsible for driving and anchoring the vessel, no one on board expressed their reliance on their opinion as to whether it was safe to dive and all on board were able to exercise reasonable care, as adults, to visually assess the safety of the water level.

(f) The Trial Judge did nevertheless find that the relationship between the Respondents and the Appellant gave rise to a duty of care as operators of the vessel between the first and second anchor points, they owed a duty to those on board an obligation to exercise reasonable care in locating that position and then ensuring that the vessel was not brought back by winds or currents. The scope of this duty was, however, measured against by the Appellant exercising reasonable care for his own safety.

(g) On 16 September 2010, Justice Price entered a Verdict and Judgment against the Appellant in favour of the Defendants/Respondents.

4.4 The Appeal

(a) The appeal brought in 2011 was on the issue of liability and the Respondents were Danny and Mickey, the drivers of the vessel. The Appellant alleged that the Respondents were in breach of their duty of care to him, by failing to take

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reasonable care to ensure that the vessel was anchored and remained in a location where the water was deep enough to enable the Appellant to dive from it safely.

(b) Alternatively, it was alleged that the Respondents were in breach of their duty of care by failing to warn the Appellant of the risk of injury if he dived off the vessel and the water depth was inadequate to enable him to do so safely. In their Defences’, the Respondents pleaded that the risk of injury from diving from the vessel was obvious in terms of section 5F(1) of the Civil Liability Act 2002 (NSW) (CLA) and that by reason of section 5H(1), they did not owe him a duty of care to warn him of that risk.

(c) The Respondents further pleaded that in diving from the vessel the Appellant was undertaking a dangerous recreational activity as defined by section 5K of the CLA and that they were not liable for the harm suffered by him caused by the materialisation of an obvious risk, section 5L(1) of the CLA.

The existence of a duty of care

(a) It was contended by the Appellant that a person who operates a vessel has a duty to all those on board and those in the near vicinity to exercise reasonable care in the vessel’s management and operation. The scope of the duty was defined by the Appellant by the specific purpose communicated to all on board, of moving the vessel to a position where the water was sufficiently deep to enable diving from the vessel to take place safely. At the very least, the Appellant contended that the scope of the duty was to take reasonable care to ensure that the position to which the vessel had been moved was safe for diving and that the position was maintained unless the Respondent’s advised otherwise.

(b) On appeal, Justice Tobias agreed with the Trial Judge that on the balance of probabilities, the Respondents were in control and operation of the vessel at the times that they each drove it. The issue was whether having moved the vessel for the sole purpose of finding a position where they considered that the water was deep enough to dive safely, the Respondents had a duty to exercise reasonable care to ensure that the vessel did not move backwards towards the shore into shallower water.

(c) His Honour disagreed with this assertion on the basis that the Respondents did not continue to exercise some degree of control over the movement of the vessel or that they had assumed responsibility to take steps to ensure that the movement of the vessel did not occur once it was anchored at the second location. Equally His Honour did not see how it could be asserted that the Appellant was in a position of vulnerability with respect to the Respondents or either of them. Certainly, the Appellant had the capacity to protect himself and would be reasonably expected to satisfy himself that the water was of sufficient depth to dive into safely.

(d) His Honour found that the Respondents owed no duty of care to take reasonable care to ensure that the vessel did not drift into shallower water and it was noted that they were not professional operators of a dive boat. They had

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simply been invited to accompany the Appellant on a test drive on the same terms as everybody else on the boat. His Honour quoted the following statement of Justice McHugh in the case of Dovuro Pty Limited v Wilkins [2003] HCA 51; (2003) 215 CLR 317:

"If negligence law is to serve any useful social purpose, it must ordinarily reflect the foresight, reactions and conduct of ordinary members of the community ... To hold defendants to standards of conduct that do not reflect the common experience of the relevant community can only bring the law of negligence, and with it the administration of justice, into disrepute. ..."

Was the risk an “obvious risk”?

(a) His Honour accepted the finding of the Trial Judge that for the purposes of section 5B(1)(a) and (b), the risk of harm to the Appellant by diving into water of uncertain depths was foreseeable and was not insignificant . His Honour also found that the likely seriousness of harm was undoubtedly grave and that the burden of taking precautions to avoid the risk of harm was not significant in the circumstances. It was held that a reasonable response to the risk did not require a warning to those on board the vessel that there was a likelihood or possibility that the water depth could change or that there was a risk of diving into a shallow bank.

(b) His Honour in the first instance held that the Respondents were entitled to act on the expectation that an adult, would exercise reasonable care for his own safety before diving. Although the likely seriousness of the harm was grave, the probability that the harm would occur if care was not taken was low. A reasonable response to the risk did not require warning to those on board the vessel that there was a likelihood or possibility that the water depth could change or that there was a risk of diving into a shallow bank.

(c) The Appellant disagreed with the Trial Judge’s finding that the risk was an obvious risk within the meaning of section 5F(1) of the CLA on the following bases:

(i) The vessel was moved from the first anchor position to the second anchor position for the sole purpose of ensuring the depth of the water was such to enable diving to be carried out safely and all on board were aware of that purpose;

(ii) There was no change in the conditions that the Appellant or any other person on board had detected once the vessel was anchored at the second anchor position;

(iii) All who dived from the boat in that position had done so safely including the Appellant;

(iv) To the Appellant’s knowledge when he was about to undertake his second dive there were others in the water in the near vicinity who had

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dived prior and had, to his observation, dived safely do that there was nothing to alert the Appellant of any change in the depth of the water.

In the first instance His Honour found that a reasonable person in the position of the Appellant would have thought that the water was sufficiently deep and safe to dive into, however they would not have considered that there was no risk of injury when diving into the water. This could not be compared to, for example, diving into a swimming pool where there was absolute certainty as to the depth of the water. A reasonable person in this situation would have concluded that the risk of harm was low.

(d) Juxtaposing this with section 5F(3) of the CLA, a risk of something occurring can be an obvious risk even though the probability of that risk is low and in accordance with section 5F(4) even if that risk is not prominent, conspicuous or physically observable.

Once the risk existed and was known to the Appellant it fell within the definition of “obvious risk”. His Honour maintains that low risk of probability would still be readily apparent to the reasonable person in the position of the Appellant and it was apparent to the Appellant himself.

Would a reasonable person in the position of the Re spondents have taken precautions to prevent the risk from materialisatio n?

(a) His Honour rejected the submission by the Appellant that the Respondents should have warned the Appellant that they could not be sure that the water was deep enough to dive in safely. His Honour held that the Appellant was in just as good a position as the Respondents to judge the depth of the water. Furthermore, when the vessel was moved to the second anchored position before he dived in, he visually assessed the depth of the water.

(b) Based on this evidence it was clear that the Appellant was at all times aware of the risks of diving into the water of unknown depth. His Honour then concluded that the Respondents warning the Appellant of the potential risk of diving into the water would not have informed the Appellant of anything that he did not already know. There was therefore no duty to provide these precautions.

Was the activity a dangerous recreational activity?

(a) The Trial Judge held that the activity was a dangerous recreational activity within the meaning of section 5K of the CLA as it involved the significant risk of physical harm. On appeal, His Honour stated that the risk could not be significant unless there was a real chance of it materialising and this was assessed on the question of whether there was a real chance of a risk of what would clearly be significant harm occurring, if the Appellant proceeded with the dive from the vessel at the time he did. Justice Tobias disagreed with the Trial Judge’s finding, on the basis that the correct measure for whether or not the activity was dangerous was not the potential catastrophic consequences, in line with the submissions of the Respondents. His Honour did not agree that there was a real chance of the risk materialising and for these reasons did not define the activity as a dangerous recreational activity within the meaning of the Act.

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(b) On 16 December 2011, Justice Tobias held that, although the Appellant was successful in contesting the question of whether the activity was a dangerous recreational activity within the meaning of the CLA, the Appellant failed on all other points and the appeal was dismissed.

Discussion

(a) The Court has upheld that a duty of care will not be found to exist, unless each of the elements set out in the CLA have been satisfied, including each of the general principles in section 5B(1).

(b) This finding is useful for insurers, as it clarifies that in novel situations, unless the claimant can satisfy the court that a reasonable person would have either provided the necessary warnings or exercised control over the safety of a situation, a finding of negligence or that a duty has been breached, is unlikely.

(c) Of course, an examination of the facts of each situation will need to be conducted, to determine whether or not the salient features which would give rise to a relationship of reliance and a duty would need to take place.

5. TURJMAN V STONEWALL HOTEL PTY LIMITED [2011] NSW CA 392

5.1 Facts

(a) This matter relates to the collapse of the first floor of the Stonewall Hotel in Oxford Street, Darlinghurst on 24 November 2002.

(b) Some months prior to the collapse, Mr Creighton, a director of Stonewall Hotel Pty Ltd (Stonewall ), wrote to South Sydney Council on 1 May 2002 requesting a renewal of the establishment’s place of public entertainment licence (POPE licence ).

(c) On 11 June 2002 an email was sent by Mr Mark Harper to Stonewall and the Mayor of the Council, Mr John Farrer, which read as follows:

"Dear Stonewall/John,

I would like to bring to your attention an ongoing concern which may or may not require further action.

My partner and I (architect and landscape architect) having some feeling for structural/engineering related issues have on a number of occasions discussed our unease at the "flex" or bounce movement in the floor boards on the top floor dance level at Stonewall.

We guessed 200 plus people were dancing/jumping up and down on Sunday 1-2am. I would say that the centre of the room was moving under weight at a measurable magnitude, and the question would be:

1. Has a structural engineer certified the licence loading for the purpose of a nightclub.

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2. If so, should it be regularly reviewed.

3. Has sufficient attention been given to the fact that the building is old and the materials of construction would be deteriorating over time - possibly hastened by its current use.

My obvious concern and worry is that the third level of Stonewall is going to collapse one day.

Mark" (the Harper email)

(d) On 18 June 2002, the Council replied to Mr Creighton’s request for a renewal of a licence by requiring that a structural engineer assess the nature and condition of the building. Specifically, the Council required that a form be submitted by a structural engineer which states that the premises are structurally sound and capable of withstanding the loads which arise from the use (particularly reference is directed to the floor loading/deterioration from dancing/jumping over the years).

(e) Mr Creighton engaged an engineer, Mr John Byatt, asking that he provide advice regarding the structural adequacy of the suspended floors at the hotel. He did not mention the renewal of the POPE licence nor did he read out the relevant paragraph from the Council’s letter, or the Harper email.

(f) Mr Byatt provided a report which stated the floor structures of the first and second levels were adequate to support the maximum anticipated loading and that the results of the investigation concerned that the original structural appraisal which certified the use of the building as a hotel was structurally adequate to support the anticipated loading. The report did not comment on the ceilings of the ground and first levels.

(g) In September 2002, the POPE licence was renewed on the basis of Mr Byatt’s report and on 24 November 2002, a number of patrons were injured by the collapse of the first floor ceiling.

5.2 The Legislation

(a) Section 5D of the Civil Liability Act 2002 (NSW) provides general principles in relation to causation as follows:




(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a

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necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.





5.3 The Primary Judgment

(a) Eight sets of proceedings were brought claiming damages for injuries suffered as a result of the ceiling collapse. The lead proceedings were brought by Mr Al Mousawy and the other seven cases were to be determined on liability at the same time. Proceedings were brought against the owner of the building, Presdate Pty Limited, the lessee from Presdate who conducted the hotel business, Stonewall, the engineer whose report had been submitted in support of the renewal of the POPE licence, J A Byatt Pty Limited (Byatt ) and the town planning consultancy which applied for the renewal of the POPE licence, Australian Town Planning Consultants Pty Limited.

(b) In the first instance, Justice Hoeben, found that all claims against each of the Defendants failed. Four of the seven Plaintiffs (Mr Mark Turjman, Mr Corey Butler, Mr Steven McKenzie and Mr Antonino Tati) (Appellants ) appealed against Stonewall only.

(c) The Primary Judge found that the email by Mr Harper was brought to the attention of Mr Creighton. However, His Honour did not accept that the Harper email played such a crucial role in the proceedings and considered that such a position would be an “over reading of the email from Mr Harper”.

(d) His Honour found that the specific breach by Stonewall was having retained an engineer who was not adequately briefed with all of the relevant information. Notwithstanding this, His Honour said that it was not foreseeable that the ceiling on the first level might collapse and that the crucial issue was whether Stonewall’s breach made a material contribution to the collapse of that ceiling in terms of factual causation as set out in section 5D of the CLA.

(e) Byatt in his evidence provided in the primary case stated that he did not know that the loading to the floors would be dynamic or that the floor had undergone

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noticeable deflexion whilst in use. He stated in his evidence that had he been informed of this loading, he would have recommended that a vibration consultant be engaged to check the implications of any potential resonance arising from those loads.

(f) I won't go into the claim against Byatt save to say that the Trial Judge held that the duty of care owed by Byatt did not go beyond a duty to exercise reasonable care in the investigation and assessment of the structural integrity of the floors to the extent that he was limited to examining that in his retainer.

5.4 The Appeal

(a) It is long recognised that Stonewall as the occupier held a duty of care to avoid any foreseeable risks of injury to its patrons. That is, it was obliged to provide premises that were safe for its patrons (Australian Safeway Stores Pty Limited v Zaluzna (1987) 162 CLR 479).

(b) The case against Stonewall was on the basis that Stonewall ought to have conducted a full safety audit of the hotel in light of the email received by Mr Harper. This would have brought to his attention the defective installation of the ceiling on the first level and potentially led to the engagement of a vibration expert to avoid the collapse which ensued.

(c) In the case of Australian Safeway Stores Pty Limited v Zaluzna, referred to above, the Plaintiff slipped and fell in the foyer of the Defendant’s supermarket. The High Court held that retention of the special duties of an occupier to entrants, was no longer justified and that it was sufficient to determine whether in the circumstances a duty of care was owed under the ordinary principles of negligence. In the circumstances of that case, the fact that the Respondent had lawfully entered the Appellants’ land established a relationship between them which did suffice to give rise to a duty to take reasonable care to avoid foreseeable risk.

Note : The Appellants attempted to appeal on a different basis which I don’t go into for the purposes of this seminar paper, as it was disallowed by the Appeal Judge. This would have required a different consideration of duty of care, however the Court maintained that it would give rise to an injustice if Stonewall were permitted to present a different case on appeal.

(d) Stonewall at no stage challenged that it was in breach of a duty of care, in failing to adequately brief its structural engineer with the Harper email and information as to the activities which took place at the hotel.

(e) The issue therefore became one of factual causation which required a consideration of section 5D of the CLA. The critical question was whether the breach of duty by Stonewall materially contributed to the collapse of the ceiling and thus the injuries sustained by the Appellants.

(f) Determining this would depend on what a competent structural engineer would have done if armed with all of the relevant correspondence and information from

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Stonewall in this matter. Quite simply, if on the balance of probabilities, a competent structural engineer would have investigated the structural integrity of the ceiling or recommended that other qualified specialists take part in the assessment process, it would follow that Stonewall’s breach of duty materially contributed to the Appellants’ injuries or was a necessary condition of the occurrence in accordance with section 5D of the CLA.

(g) Mr Alden, an engineering expert retained in the proceedings, pointed out that the Harper email aptly included significant detail which included a suggestion that the area was being used in a manner not contemplated by the development approval and that the age of the materials of the building used in its construction had likely deteriorated over time. In fact his email referred to a possible collapse of the third level of Stonewall rather than the first.

(h) Referring to the Council’s letter which required that the structural engineer provide that “the premises is structurally sound and is capable of withstanding the loadings”, this would appear to refer not merely to the flex or movement of the floor but to the structural integrity of any part of the premises that might pose a significant risk to patrons. In fact it would be reasonable to conclude that a certifier could not certify safety in accordance with the Council’s letter without having taken in to consideration the integrity of the ceilings and the loadings which the building had to withstand.

(i) The written report provided by Mr Alden specifically considered the Harper email as suggesting the following:

(i) the approved occupancy capacity of the second floor was being exceeded;

(ii) the area was being used in a manner not contemplated by the development approval, in fact it is quite different to those indicated in the documentation submitted to the Council; and

(iii) the activities might have been causing deterioration to the building.

(j) Had the email been provided to the engineer, Mr Alden thought that it might have prompted an engineer to recommend the engagement of other specialists to consider whether damage was being caused to non-structural elements of the building. It was also considered by Mr Alden that the Council’s letter was of great significance particularly in directing attention to the possible deterioration resulting from the use of the building.

(k) In light of the correspondence received by Stonewall that the ceiling may collapse, it was reasonably foreseeable that this may occur.

(l) It was held that had a structural engineer been adequately briefed, the integrity of the building and the ceiling would have been investigated appropriately and for this reason Stonewall’s breach of duty was a necessary condition of the occurrence of the harm as intended by section 5D(1)(a).

(m) On 21 December 2011, the appeal was allowed.

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5.5 Discussion

(a) Although the findings in this case deal substantially with the issue of factual causation, it highlights the importance of undertaking a factual investigation into whether or not a breach of a duty materially contributed to the harm;

(b) The case maintains the well established legal principles that an occupier owes a duty of care to its patrons to avoid any foreseeable risks and to provide a safe environment. It followed in this case, that although Stonewall breached this duty of care in failing to provide the necessary information to its engineer, this breach needed to be assessed closely against the general principles espoused in s5D of the CLA, namely, whether that omission materially contributed to the risk.

Disclaimer

The contents of this seminar paper are general in nature and should not be relied on as legal advice. No person should act on the information contained without first consulting

Holman Webb.

Duty+of+Care+and+the+Civil+Liability+Act+2002.pdf

Documents

Transcript of Duty+of+Care+and+the+Civil+Liability+Act+2002.pdf