Civil Liability legislation: Increasingly uniform approach to the question of reasonable precautions

Legal Directions

Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy; FBIS International Protective Services (Aust) Pty Ltd v Hennessy [2015] NSWCA 253

In each state and territory, there now exists very similar legislation that prescribes how courts are to determine whether a duty of care exists and whether it has been breached.

It is noteworthy that section 48 of the Wrongs Act 1958 (Vic) (as amended) is, for all intents and purposes, identical to section 5B of the Civil Liability Act 2002 (NSW).

Recently, we reported on a decision of the Victorian Court of Appeal delivered on 25 August 2014 in Erickson v Bagley [2015] VSCA 220 (‘Erickson’).

In Erickson, the plaintiff fell on a gravel driveway in the dark and the Court concluded that it was a matter of abundant common sense that any person who chose to traverse a gravel driveway in darkness, without using artificial lighting, took a risk that they might fall and further, that the duty to take reasonable care imposed upon an occupier in those circumstances did not require the occupier to take precautions for the plaintiff against any such obvious risk.

On 27 August 2015, the NSW Court of Appeal delivered its decision in Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy; FBIS International Protective Services (Aust) Pty Ltd v Hennessy [2015] NSWCA 253 (‘Hennessy’).

In Hennessy, the plaintiff fell on what was described as an ‘awkward’ step while at work. The step was from the ground up into a hut which the plaintiff was entering. It was said to be ‘too high’ and the plaintiff alleged that his employer (FBIS) and the occupier (Patrick Stevedores) were in breach of their respective duties of care.

The Court of Appeal rejected the finding that the step was ‘awkward’ and was somewhat critical of the fact that there was no evidence before the court as to what a range of ‘normal’ heights of steps were. A finding by the trial judge that the step was simply ‘higher than normal’ was criticised.

Relevantly, in considering section 5B of the Civil Liability Act, the Court addressed the question of reasonable precautions in response to the risk and at [63] asked, ‘what was there to establish that it was reasonable for Patrick Stevedores to install a step (and an awning) in respect of the ‘higher than normal step?’’

The Court found that it would not have been reasonable for the occupier to have installed a further step. The Court also concluded that it was Mr Hennessy who had to adduce evidence to show that the additional risk posed by the step from the ground up into the demountable hut, considered prospectively, would have prompted a person in the position of Patrick Stevedores to take some precaution.

The plaintiff’s failure to adduce evidence determining more precisely the height of the step or its other characteristics meant that there was a failure to adduce evidence which could sustain a finding as to the extent of the additional risk and that, of itself, was sufficient to sustain a conclusion that section 5B(1)(c) of the Civil Liability Act was not satisfied (at [80]).

The decisions in Erikson or in Hennessy are not earth-shattering, however, they continue an advancement of appellate courts’ approaches to the issue of breach of duty and affirm a growing body of case law highlighting:

  1. That plaintiffs must do more than merely identify a risk
  2. That having identified the risk of injury as well as identifying reasonable precautions, a plaintiff must establish that the taking of those reasonable precautions would have prevented the risk of injury materialising
  3. That in circumstances where the risk of injury is obvious, not only is there no liability for a failure to warn, but in circumstances where a plaintiff fails to take reasonable care for their own safety, there is a substantial chance of a court concluding that as the risk was obvious and foreseeable to the plaintiff, it can hardly be said that the probability of harm would have occurred because the precautions were not taken. In other words, the plaintiff vested with knowledge of the risk, essentially took steps exposing the plaintiff to their injury
  4. In those circumstances, even if it can be established that a risk was foreseeable and was not insignificant and that a reasonable person would have taken precautions, the risk of injury arises irrespective of the precautions, such that the plaintiff cannot establish the probability that the harm would occur if the care were not taken. The result therefore is a failure on the part of the plaintiff to establish negligence in a defendant for failing to take precautions against the risk of harm.

In essence, the legal principles in the above cases are not new law and follow the High Court’s decision in Adeels Palace Pty Ltd v Moubarak [2009] HCA 48. However, the cases clearly highlight that the obligation on a plaintiff to exercise reasonable care for their own safety is now to be considered a specific element contained, as a matter of law, in determining the scope of the duty of care owed by occupiers.

These cases continue a trend by appellate courts to strictly apply the statutory provisions with the resultant effect being that in a growing number of cases, plaintiffs could struggle to establish liability. This trend also seems to be consistent across Australia, particularly between New South Wales and Victoria.

Authored by Geoff Connellan, Partner, and Brian Moroney, Partner, Sydney.

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