Part 1A - Negligence

In 2013 the respondent was delivering supplies to a building site. The builder’s supervisor directed him where to unload. In clearing the ground by removing an empty pallet, the first respondent fell into a stormwater retention pit, suffering severe injuries. The respondent sued the appellant in negligence. The appellant alleged contributory negligence on the part of the respondent and made several cross-claims seeking contribution.

On s 5R: In order to identify “the risk of that harm”, it is necessary to have regard to the harm in fact suffered. It is not sufficient to identify the risk as the possibility of personal injury. The court must have regard to the care taken by “a reasonable person in the position of” the claimant, knowing what the claimant knew or ought to have known at the time: [30]. No basis was provided to establish that a reasonable person knowing these circumstances would have taken one of the precautions posited by the appellant. The trial judge did not err in dismissing the defence of contributory negligence: [33].

Mr Williams was injured when he fell down the first of three individual steps along a downhill path to the public toilets. The primary judge accepted that he simply did not see the step as he did not expect to find one on the path towards a disabled toilet.

His Honour found that negligence was established on the basis of an absence of cues that would indicate to an ordinary user of the path taking reasonable care for his or her own safety the location of the steps. Hi Honour then also concluded that contributory negligence had been established. The Council appealed against liability and Mr Williams cross-appealed against the finding

of contributory negligence. The Court of Appeal dismissed the appeal and allowed the cross-appeal.

On s 5R: Obviously a finding of negligence on the part of a defendant does not of itself contradict a finding of contributory negligence on the part of a plaintiff: [8]. This is reflected in the scope of the duty owed to pedestrians, which is a duty to make a path safe not in all circumstances but for users taking reasonable care for their own safety: [9]. However, having identified that the step was not readily visible to a person exercising reasonable care for her own safety, it was necessary to identify a basis for the conclusion that Mr Williams in part failed to see the step because he was not exercising such reasonable care: [10]. In the present case, there was no evidence to that effect.

Any assumption made by Mr Williams (to the effect that there were no steps along the path) was based on his perception of the pathway and was an assumption that, for the reasons relied on for the primary finding of liability, could have been reached by a person exercising reasonable care for his or her own safety: [12]-[14].

The appellant’s farm, “Myack”, was extensively damaged by fire in September 2012. The appellant claimed that the fire started on the adjoining property, “Doran”, resulting from a controlled burn conducted there in August 2012 at the request of the owners, the respondents. The respondents  acknowledged that they would remain responsible for preventing the spread or escape of the fire and ensuring that it was properly extinguished, and for notifying adjoining landowners of the burn, which they did not do. The RFS identified that a tree on the boundary of Doran was the source of the 5 September fire, reigniting after not having been fully extinguished after the controlled fire.

The owners were not present at the August controlled fire or at the 5 September fire. No steps were taken to establish that there was no risk of the fire reigniting on Doran in the unusual weather conditions of 5 September, either by the owners or the RFS. The appellant also did not go to Myack to take any precautions after becoming aware of the high fire risk prevailing on 5 September.

The appellant sought damages in negligence and nuisance from the respondents, claiming that they owed him a non-delegable duty of care to prevent the foreseeable risk of harm which arose from the potential spread of fire from Doran to Myack, which was breached when the controlled fire was not properly extinguished and later reignited. The respondents denied the claims and alleged contributory negligence on the appellant’s part.

On s 5R: Because the respondents’ duty to the appellant was non-delegable, s 5Q requires that the extent of the respondents’ liability for such negligence be determined as if they were vicariously liable for the RFS’ acts or omissions: [249]. However, s 5C does not make the owners vicariously liable for negligence on the part of the RFS: [252]. The non-delegable duty which the respondents owed the appellant required them to ensure that the RFS exercised reasonable care, in the sense that they would be liable if the RFS failed to do so, even if the RFS itself would have no liability in negligence to the appellant: [255].

The appellant was injured when a motor vehicle driven by the respondent ran over her foot. The appellant brought proceedings against the respondent for negligence and, in the alternative, on the basis that her injuries were the result of a “blameless motor accident” pursuant to the Motor Accidents Compensation Act 1999 (NSW).

The primary judge found that it was a “blameless accident” and assessed contributory negligence at 100 per cent.

Section 138(1) of the Motor Accidents Compensation Act provides that the “common law and enacted law as to contributory negligence” apply to an award of damages in respect of a motor accident. This includes s 5S.

Section 5S provides that in apportioning

responsibility a court may determine a reduction of 100 per cent in the claimant’s damages by reason of contributory negligence. This overcomes the decision in Wynbergen v Hoyts Corporation Pty Ltd [1997] HCA 52; 72 ALJR 65. Contributory

negligence was assessed at 80%. [23], [29],

[43]

High Court cases cited in discussion:

Wynbergen v Hoyts Corporation Pty Ltd

[1997] HCA 52; 72 ALJR 65