Up the garden path: VWA stumbles in recovery claim against university
May 17, 2016
VWA v Monash University  VSC 178 (McDonald J., 22 April 2016)
This recent Supreme Court of Victoria decision exemplifies that it does not necessarily follow that an occupier who is aware of the existence of a certain risk is negligent if it does not take steps to remove or lessen the risk.
On 1 September 2010, Janis Lonie (‘the Worker’) commenced employment as the manager of the Gryph Inn Bar and Bistro (‘the Bar’) at Monash University’s Caulfield Campus (‘Monash’). On 6 October 2010, the Worker slipped and fell on a pathway through a garden bed (the ‘Path’) while walking from the Bar to her car in wet weather.
The Worker commenced common law proceedings against Monash which settled on a compromised basis for $100,000 – a modest sum, given the circumstances of the Worker’s injuries.
The VWA, the worker’s compensation insurer of the Bar, commenced separate proceedings against Monash under s138 of the Accident Compensation Act 1985 (Vic) (‘the ACA’), seeking recovery of workers compensation payments made to the Worker.
There were two principal issues to be decided by the Court:
- Were the injuries sustained by the Worker on 6 October 2010 caused in circumstances creating a liability in Monash to pay her damages (that is, was Monash liable in negligence)
- If so, what is the amount which Monash is required to indemnify the VWA in accordance with the formula prescribed by s 138(3) of the ACA.
To gain access to her parking spot on Queens Road (an internal road at Monash), the Worker could use a concrete ramp immediately outside the Bar. However, the Worker used the Path as a shortcut to access Queens Road after being shown its location by another staff member. The Path consisted of dirt, tanbark and some twigs, and had been formed by repetitive use as a walkway.
The Worker testified that, prior to her fall, she had used the Path without difficulty on many occasions, irrespective of weather conditions, and that she had also seen multiple other people using the Path.
On the day of the accident, the Worker completed a morning shift, used the Path to reach her car, returned later to undertake an evening shift, used the Path to access the Bar, and, after completing the evening shift at about midnight, was walking to her car again via the Path when she slipped and fell.
All parties agreed that that lighting was not a factor and that Monash was an occupier of the garden bed and consequently owed the Worker a duty of care under s14B(3) of the Wrongs Act 1958 (Vic) to take care to see that she would not be injured by the state of the premises.
Justice McDonald held that the Worker’s injuries were not sustained in circumstances which created any liability in Monash to pay damages. As such, Monash was not liable to indemnify the VWA under s 138 for payments made by way of compensation to the Worker.
His Honour held that the likelihood of injury is not to be assessed with hindsight. That is, the fact that the worker was injured is not of itself sufficient to establish that it was probable that an injury may be sustained.
Noting that Monash was aware that pedestrians used the Path rather than the (safer) ramp as a ‘short-cut’, His Honour accepted VWA’s argument that the slope of the Path, the variable surface, and the fact that the Path was exposed to the weather gave rise to a foreseeable risk of injury albeit that the probability of injury occurring was low.
His Honour also found that the burden of eliminating the risk could have been easily alleviated and was, in fact, alleviated in late 2012 when Monash erected poles to block access to the Path.
Having found that, His Honour accepted Monash’s argument in holding that the risky elements of the Path were plainly visible, apparent and known to the Worker, who was experienced in the use of the Path and accordingly, that the Path did not present a concealed danger. It followed that a person of the Worker’s age and experience had the ability to appreciate the risk. His Honour also noted the relevance of the absence of evidence of anyone else ever having slipped on the Path to the question of foreseeability that the state of the Path gave rise to a risk of injury occurring.
His Honour, in applying s 14B of the Wrongs Act , noted that a consideration of breach required an analysis of what a reasonable person in Monash’s place would have done. He also noted the reasoning of Justice Hayne of the High Court in Vairy v Wyong Shire Council  HCA 62 that an occupier’s duty does not extend to preventing every injury possible and that it may be reasonable for an occupier to do nothing.
His Honour held that a reasonable person in Monash’s position would have done nothing to prevent access to the Path, finding that the risks of the Path to users was obvious, as was the proximity of the safe means of ingress and egress from the Bar via the concrete stairs and a ramp.
Lessons from this decision
Although this case, similar to analogous decisions, was decided primarily on its facts, it confirms the developing trend in Victorian courts that assessment of the common law liability of occupiers requires consideration of the reasonable expectation of the conduct of the injured person when assessing whether it is foreseeable that the state of premises presents a risk of injury. Courts in Australia are showing a tendency to take a common-sense approach in finding in favour of an occupier in accidents where the risk of injury is so obvious to be objectively appreciated by the injured party.
Authored by Michael Martin, Partner, and Rory Hudson, Lawyer, Melbourne.
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