Part 1A - Negligence

Mr Khanna brought proceedings in negligence against Woolworths for personal injuries which he allegedly suffered when his wife tripped on the leg of a chair that had been negligently misplaced in a Woolworths store. While attempting to stop her fall, Mr Khanna himself fell and suffered injury. The primary judge found the risk of harm was an obvious risk, meaning there was no proactive duty to warn Mr or Mrs Khanna. Mr Khanna sought leave to appeal that decision. The Court of Appeal refused leave to appeal.

On s 5F: The Court of Appeal upheld the finding that the risk of harm in the present case was an obvious risk within s 5F.The stack of chairs was clearly visible to any approaching customer, and it was obvious that, from the stack, chair legs might protrude at an angle and low to the ground .

: [15].

Mr Cox was injured when the light aircraft that he was piloting collided with a Ferris wheel during an attempted landing at the Old Bar Aircraft Landing Area (‘ALA’), an unlicensed aerodrome not subject to any regulatory oversight. The Ferris wheel had been erected by the Mid-Coast Council two days earlier and encroached on the splay of the grass airstrip (the area through which aircraft may travel when taking off or landing). The Council was found to have been negligent in a claim by a passenger on the Ferris wheel, but the primary judge held that Mr Cox’s claim was precluded by s 5L of the Civil Liability Act as the harm suffered was the result of the materialisation of an obvious risk of a dangerous recreational activity. Mr Cox appealed and the Court of Appeal dismissed the appeal.

On s 5F: the identified risk, being that of a collision with an obstruction in the splay of the ALA, was obvious within the meaning of s 5F. Though reasonable to expect that the splay would be clear of obstacles, it remained a pilot’s responsibility to ensure that it was in fact clear: [64]. The fact that others landing at the ALA on the day had seen the Ferris wheel was relevant to the assessment of obviousness. Though Mr Cox did not see the Ferris wheel on his flyover, the reason for the flyover was the obvious risk that an obstacle might be in the splay: [65]-[66]. That a risk was not ‘expected’, in the sense that it had a low probability of occurring, does not affect the characterisation of that risk as obvious: [68].

The plaintiff participated in a campdraft event organised by the defendant. She fell from her horse whilst completing late on the second day of a three day event and suffered a significant spinal injury. She is wheelchair bound. The plaintiff alleged that her fall was caused by the negligence of the defendant.

The primary judge found in favour of the defendant and she brought an appeal.

On s 5F: The appellant was an experienced campdrafter. Her age was a characteristic to be attributed to a reasonable person in her position for the purpose of s 5F(1): [150].

Mr Capar was employed as a security guard at Lidcombe Power Centre. In March 2010 an intruder entered the premises by climbing through a gap above an external roller door and up the fire stairs. In February 2010 an intruder had accessed the premises in the same way. Mr Capar, having seen the intruder outside the premises on CCTV and subsequently lost sight of him, left the control room to investigate. The intruder, when found, was carrying an axe and approached Mr Capar threatening to kill him. Mr Capar returned safely to the control room, but subsequently suffered psychiatric harm as a result of the incident. The primary judge dismissed Mr Capar’s claims against the owner of the premises, the company providing security services to the premises and his own employer on the basis that Mr Capar, by leaving the safety of the control room, had voluntarily assumed the risk in question.

On s 5G: section 5G creates a presumption of knowledge in the case of obvious risks, but for the purposes of the defence of voluntary assumption of risk this presumed knowledge alone is not sufficient; voluntariness must still be shown: [43]-[44]. For these purposes, attendance at an unsafe workplace will not establish consent to unsafe work conditions: [49]-[53].

The plaintiff participated in a campdraft event organised by the defendant. She fell from her horse whilst completing late on the second day of a three day event and suffered a significant spinal injury. She is wheelchair bound. The plaintiff alleged that her fall was caused by the negligence of the defendant.

On s 5G: Section 5G can exculpate a defendant where a plaintiff asserts “negligence” by a defendant for failing to warn a plaintiff where the risk was obvious: [146].

The plaintiff participated in a campdraft event organised by the defendant. She fell from her horse whilst completing late on the second day of a three day event and suffered a significant spinal injury. She is wheelchair bound. The plaintiff alleged that her fall was caused by the negligence of the defendant.

On s 5H: The defendant established that in the circumstances, it had no obligation to inform the plaintiff of the risk of falling from her horse during the campdraft event. The risk was obvious, involving riding at speed on a horse and corralling a beast, in a particular required configuration, in a relatively confined space where the activity itself is known to entail a risk of falling: [145].

Mr Capar was employed as a security guard at Lidcombe Power Centre. In March 2010 an intruder entered the premises by climbing through a gap above an external roller door and up the fire stairs. In February 2010 an intruder had accessed the premises in the same way. Mr Capar, having seen the intruder outside the premises on CCTV and subsequently lost sight of him, left the control room to investigate. The intruder, when found, was carrying an axe and approached Mr Capar threatening to kill him. Mr Capar returned safely to the control room, but subsequently suffered psychiatric

harm as a result of the incident. The primary judge dismissed Mr Capar’s claims against the owner of the premises, the company providing security services to the premises and his own employer on the basis that Mr Capar, by leaving the safety of the control room, had voluntarily assumed the risk in question.

On s 5I: reliance on the concept of “inherent risk” is misguided where breach of a duty of care has been established. In a case such as the present it is doubtful that s 5I serves any independent purpose. While it is perhaps not impossible that a person may owe a duty of care in respect of a risk which cannot be avoided by the exercise of reasonable care (if the formulation of the duty and the identification of the risk occur at different levels of particularity) the possibility of a defendant being held liable for a breach of a duty of care in respect of a risk the materialisation of which could not be avoided by the exercise of reasonable care is incoherent. In short, s 5I adds nothing to the analysis of breach required by s 5B: [172].