BARDSLEY v BATEMANS BAY BOWLING CLUB LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY P, COLE JA and WADDELL AJA 10 April 1996, 25 November 1996 [1996] NSWCA 44 Negligence — whether Club liable when person trapped crossing crowded room. Mahoney P This case illustrates the practical difficulties involved in the law of negligence. The plaintiff, Mrs Ethel Bardsley, was injured in the premises of the defendant, Batemans Bay Bowling Club Ltd. She was present, as she was entitled to be, during the activities on a Friday evening conducted by the Club. She had been playing at a poker machine. She went from that machine to the bar to change money and obtain "some ten cent pieces". She had to go only a short distance, on one view about eighteen or twenty feet. She had to go through a group of people, she said they were two or three deep, near the bar to change her money and go back to the poker machine. There were, she said, at least three rows of tables, some metre or so apart. People were seated at the tables. She had to "squeeze" her way between the tables and the people to go where she was going. At one of the tables was a Mr Donald Green. She thought he was sitting at the table but in fact he was kneeling beside it. Because he was kneeling, the lower part of his legs was on the floor. As she "squeezed" her way through, she did not see his legs on the floor, tripped over them and fell. She suffered the injuries for which she has sued the Club. This case illustrates the practical difficulties involved in the law of negligence. For the reasons to which I shall refer, I am in substantial agreement with the submission made for the appellant plaintiff that, if the terms of the law are as they conventionally are stated to be, the facts of the present case show negligence on the defendant's part. Yet I agree with the trial judge and with Cole JA and Waddell AJA that the appeal should be dismissed. The function of a law in this area is to determine when (I shall use the terms of litigation) a defendant is to be liable in damages for a plaintiffs injuries. Of a law which has this function, two things may be expected: it will in content be just; and it will be in such a form as to operate effectively and efficiently. In this area, justice is - at least in the present social contest it may be - an ambiguous concept. It will involve that the law determine what is, and attribute to each person, his or her due. But what is a person's due may, in a given social context, be determined by or at least significantly influenced by, social expediency. Thus it may be just to require the proof of negligence before a defendant is held liable if the defendant must bear (as is now the case) damages (which may be unlimited in amount). It may be just to hold a defendant liable without negligence or serious negligence if, for example, there is a readily available (or a compulsory) insurance scheme to protect a defendant against such damages. In cases other than motor vehicle injuries and industrial injuries, a defendant ordinarily will bear the burden of damages and must, if he can, obtain insurance, at whatever expense, against that liability. Therefore it may be appropriate that default of an appropriate kind be a condition of liability. 2 UNREPORTED JUDGMENTS It is the form of the law with which I am here concerned. A good law, that is, one which is effective and efficient, will do at least two things: it will define clearly the circumstances in which it operates to impose liability on the defendant so that he may know in advance what it is that he should or should not do; and it will be in terms such that, after the event, it will appear with reasonable clearness whether or not the defendant is liable for the plaintiffs damage. In my respectful opinion, the law of negligence as it is presently formulated does neither of these. The tests or criteria by which it operates are not, in form, such as to do either of these things. A defendant will be liable for a plaintiffs injuries if he has a duty of care to safeguard the plaintiff against injury; and if he has not taken the care which that duty requires of him. A law so formulated does not, with the appropriate degree of certainty, allow a defendant to determine in advance whether he must take precautions against injury to the plaintiff or what precautions he must take. After the accident, as the present case illustrates, it leaves uncertain whether and to what extent the defendant is liable. These things are, of course, obvious. But, in deference to the claims of Mrs Bardsley and the submissions of her counsel Mr Guihot, it is, in my opinion, proper to draw out the difficulties which exist and the basis upon which this appeal falls to be decided. The test for determining when a defendant must take precautions at all is now, or includes, the test of proximity. Foreseeability as the sole test, as suggested by Donoghue v Stevenson (1932) AC 562 and earlier cases, is now seen as not being satisfactory, ie, as not being a test which is necessary and sufficient to determine whether a duty of care exists. The proximity test is now the correct formulation of the principle. Mr Guihot, in his submissions, said: "Tn Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488, the majority of the High Court adopted the statement of Deane J, in Hackshaw v Shaw (1984) 155 CLR 614 at 662-3 that, in an action in negligence against an occupier: 'All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant's occupation of the premises and the manner of the plaintiff's entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. A prerequisite of any such duty is that there be the necessary degree of proximity of relationship. The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member. A measure of the discharge of the duty is what a reasonable would, in the circumstances, do by way of response to the foreseeable risk."" Difficulties inherent in the concept of foreseeability alone have been examined in, inter alia, the San Sebastian litigation (1986) 162 CLR 340; (1983) 2 NSWLR 268. It is not necessary to repeat what was there said. In one sense, any accident which occurs will, on reflection, be seen as foreseeable: at least, with the clarity which hindsight gives, this will be so. A defendant would be foolish to assume that, if there be any possibility of injury to another, he should not take steps and expend money and other resources against that possibility. This test does not, in reality, enable a defendant to determine whether he has a duty of care, that is, when he need not take precautions and incur the costs involved; in a practical sense it will lead a prudent defendant to decide in almost every case that care must be taken and cost incurred. URJ BARDSLEY v BATEMANS BAY BOWLING CLUB LTD (Mahoney P) 3 There is more uncertainty in the position of a defendant (and his insurer) when he seeks to determine in advance what that duty requires of him, that is, what he must do and what resources he must apply to it. The accepted formula is that contained in the case to which Mr Guihot has referred, Wyong Shire Council v Shirt (1980) 146 CLR 40. In the much cited observations of Mason J: at 47-8; it is said: "In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position." His Honour then proceeded to give some indication of how "the reasonable man" would respond. His Honour: at 48; said: "The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors." In his submissions, Mr Guihot referred to the statement of Gibbs CJ in Turner v South Australia (1982) 56 ALJR 839 at 840: "Where it is possible to guard against a foreseeable risk which, although not perhaps great, nevertheless cannot be called remote of fanciful, by adopting a means which involves little difficulty or expense, the failure to adopt such means will in general be negligent." It is the adequacy of verbal formulae of this kind which must be judged in determining the effectiveness and the efficiency of the law. As any experienced lawyer will know, what a reasonable person will do or, more accurately, is to be seen for this purpose to do, is measured by what, in the particular case, a judge will do. As Lord Radcliffe observed many years ago, the reasonable person is an anthropomorphic conception of justice in which what the reasonable person says is what the judge says. See Davis Contractors Ltd v Fareham Urban District Council (1956) AC 696 at 728. This means, of course, that what a defendant must do is what, as far as can be predicted, the judge who in due course tries the proceeding will determine that he should have done. What he has done in advance to safeguard the plaintiff will, in reality, be sufficient if his prediction is accurate. This difficulty in the law and in the tests of a defendant's liability which it proposes is illustrated by the facts of the present case. The Club, a members' club, was operating for the benefit of those who were its shareholders and their guests. It did what was popular in the sense that its premises were crowded. Accordingly, a person moving about, as the plaintiff was, would have to "squeeze" between 4 UNREPORTED JUDGMENTS tables and the people at them. People do not merely stand or sit at tables or on chairs; they have the freedom to sit, stand, squat or kneel as their convenience dictates. Mr Green was kneeling for the short time indicated: the plaintiff said three-four minutes. In these circumstances, if one applies in those terms the tests which Mr Guihot has cited, there was, in general, a duty of care. Where a club attracts people in numbers, it must take precautions against the injuries which are apt to arise from what happens in a crowded room. But what precautions? There are, in any situation, foreseeable risks of injury, even contingent risks: see generally March v Stramare Pty Ltd (1991) 171 CLR 506; Phillis v Daly (1988) 15 NSWLR 65 at 75. Where persons have to "squeeze", it is foreseeable that they may not look to see or be able to see what is on the floor and so may trip. A chair or a table leg may be out of alignment, a person's foot or a leg may be stretched out momentarily or for a brief time. Therefore, a defendant giving thought to the matter would see that there was the risk of injury. That risk could be removed by the defendant ensuring that every chair and table leg was always in alignment, that no patron put a foot or a leg out of line and that no patron knelt down at a table, even for a moment or two. Perhaps no great cost would be involved in doing so. Accordingly, a defendant (or his insurer) must predict and so determine what should be done: he must, eg, decide how popular his function should be allowed to be, how many people may be there, and whether they should be permitted to kneel and for how long. The plaintiffs written submissions suggested that the defendant should have instructed its supervising staff and board members on duty "to direct patrons to avoid obstruction of the passage of patrons in the lounge area of the Club and/or, by relocating the tables, to provide a wider path for persons crossing the lounge area". All of these things could have been done and, as the plaintiffs submissions suggested, without great cost or inconvenience to the defendant. The argument suggested that, if the test be that which is, in terms, contained in the cases cited by the plaintiff, that is, the test be that every foreseeable danger should be removed if it could be removed "by adopting a means which involves little difficulty or expense", then the defendant could in this way have prevented Mr Green kneeling on the floor with his lower legs extended. There is, in my submission, force in that submission. But the trial judge held that the defendant was not in breach of its duty to the plaintiff. The other members of the Court are of that opinion. I agree. In my respectful opinion, it cannot be the law that a club holding such a function is in breach of its duty to the persons in the club if it does not remove every such risk of one of them tripping over another in this way. As I suggested in Phillis v Daly, there are risks which are readily foreseeable which the law of negligence does not require to be removed. There are, for example, risks which are part of the ordinary course of living which, notwithstanding the terms in which the law of negligence is conventionally stated - that law does not require a defendant to remove. But if this be so, then the terms in which the law is stated do not do what the terms of a law should do. Ihave referred to these matters because in my opinion it is proper to record that the law of negligence is not functioning well in this area. The difficulties which it imposes on, for example, local authorities in deciding whether facilities are to be provided for swimming, playgrounds or the like, advice is to be given to the public, and other facilities are to be available and what precautions must be taken are substantial. The Court is, I think, entitled to know that difficulties exist in URJ BARDSLEY v BATEMANS BAY BOWLING CLUB LTD (Waddell AJA) 5 obtaining insurance against such liabilities and that those difficulties are influenced by the state of the law. It is, in my respectful opinion, proper that the law in this regard be the subject of review. However, in the present case, I agree with the trial judge and with the other members of the Court. The appeal should be dismissed with costs. Cole JA I agree with Wadded. AJA Waddell AJA The appellant appealed against the dismissal of her claim in the District Court at Moruya, Gallen, DCJ, for damages in respect of injuries which she received when she tripped and fell in the lounge of Batemans Bay Bowling Club Ltd, the respondent. The respondent admitted in its grounds of defence that, as alleged in the statement of claim, it owed a duty of care to the appellant. The respondent denied that the plaintiff tripped and fell by reason of its negligence. The particulars of negligence given in the amended statement of claim are: (a) Failing to ensure that areas used as passageways were clear and free from obstruction. (b) Failing to supervise and control the other patrons and in particular one Donald Green to ensure that no part of his body pertruded onto an area used as a passageway. (c) Permitting the said Donald Green to place his leg into a passageway thus obstructing the same. (d) Failing to warn the plaintiff of the obstruction caused by the said Donald Green. (e) Allowing persons in excess of reasonable levels to occupy part of the said premises. (f) In so far as is necessary the plaintiff relies on the doctrine of res ipsa loquitor. Briefly, the evidence was that the plaintiff had been a member of the Club for about four years. Her husband was also a member and was one of the directors. On 20 April 1990, she and her husband went to the Club which was unusually crowded because that date was in the Easter period. They separated and she went into the lounge where there was a bar on one side of the room and on the opposite side some poker machines with three or four rows of tables and chairs in between. The room was very crowded. The tables were full and additional chairs were being used. She spent some time talking to friends near the poker machines. One became vacant which she "reserved" asking a friend to keep it for her. She then made her way through the tables and chairs to the bar to obtain some ten cent pieces to use in the poker machine. On her way back, again through the tables and chairs, she tripped over the leg of a man who was kneeling on the floor talking to the people at one of the tables and fell and suffered severe injuries to her left arm. She was aged 63 at the time. The appellant's evidence and that of her husband establishes that the room was unusually crowded that evening. Each of the tables had a number of people sitting in chairs around it. The tables were about one metre apart. There was a crowd of people congregated in the area of the concertina doors at the entrance to the room in the wall to the right of the bar. People were two to three deep all along the bar. The man whose leg the appellant tripped over, Donald Green, gave evidence to the effect that he was in the kneeling with one knee on the floor and the lower leg along the floor behind him for three or four minutes before the accident 6 UNREPORTED JUDGMENTS happened. He was kneeling in the way he did because he had a fused hip joint. His leg extended into a space behind him of half a metre or more. The appellant trod on his ankle. The appellant's evidence included that she had made the journey across the room of some 18-20 feet many times previously, that "You don't have a set route. 'You just go where you can see a space", that she clutched her handbag to her body so that it did not bang people's heads that were sitting at the tables when she squeezed through, that she saw Mr Green and thought he was sitting at the table and when she squeezed behind him, tripped over his legs and fell to the ground. When she was going back from the bar to the poker machines she knew she had to watch out for bags and meat trays (prizes in raffles). She was making sure she did not trip over a bag. She did not see Mr Green's legs because she was not looking at the floor in front of her to see that nothing would trip her up. She said that she thought that at the time she was probably watching somebody's head, perhaps because someone was speaking to her or had sung out to her. Mr Bardsley's evidence was to the effect that there was a very large crowd at the Club and he thought that it was too big and that there was no control over the bar whatsoever. There was a man at the bar, who was a member of the Board, whose job it was to maintain watch over the number of people. He told the Chairman, Mr Wilson, straight that he thought the crowd was excessive. As soon as he heard of his wife's accident, he went to the lounge. He saw her to the hospital, and about an hour later went back to the lounge. He found that a very few of the tables had been moved, but there still was not room for anybody to walk through. There was no passageway from the bar direct across to the poker machines which was totally clear. About a week after the accident the bar area was "reconstructed" completely and the tables were placed "well apart". He gave no other details of the reconstruction. In cross-examination, he said that at the time of the accident there was a space between the tables and the bar and between the tables and the poker machines. There was more space between the tables and the wall to the left of the bar than between the tables themselves in the middle of the room. But the number of people at the bar would have been an obstruction to using the space along the left-hand wall as a means of access to the poker machines. The appellant said that she did not give any thought to walking along the left-hand wall but simply set out to cross the room. It was not suggested in evidence that a similar accident had happened before. The conclusion of the learned trial judge on the evidence is expressed as follows: "Unfortunately for the plaintiff, although I have endeavoured to find some evidence against which indicates a breach of duty to take care, I have had to conclude on the plaintiff's own evidence that there is no evidence which would entitle me to find the defendant guilty of the alleged negligence in the plaintiff's amended statement of claim. It appears to me having considered the plaintiff's evidence and the evidence given by her husband and also on the defendant's behalf by Donald Bruce Green, that the cause of the plaintiff's fall from which the injuries arose, was the fact that the plaintiff to use her own words wrote, 'I just went forward through some chairs you know, and then If ell over the man's (sic) feet. I thought he was sitting at a table but he wasn't he was kneeling up." (p2-p3). URJ BARDSLEY v BATEMANS BAY BOWLING CLUB LTD (Waddell AJA) 7 His Honour then goes on to quote the detail of the appellant's evidence which was to the effect that she simply did not look to see whether the space between Mr Green and the adjoining table had any obstructions and did not really know how the accident happened. His Honour then concluded his reasons by saying: "Tt appears to me that although one can understand the difficulty that was encountered by the plaintiff, negotiating a safe passage the cause of the fall should not be properly laid at the door of the defendant, there will be a verdict for the defendant. Any other orders?" (pS). There is no statement in his Honour's reasons why none of the particulars of negligence had been made out except to say that "the cause of the fall should not be properly laid at the door of the defendant" and at the beginning of the reasons, in the passage quoted above, that there was no evidence which would entitle him to find the defendant guilty of the alleged negligence. Counsel for the appellant and the respondent agree that the Club had a duty to take reasonable care for the safety of its members and their guests attending its premises. Counsel for the respondent concedes that it was "strictly foreseeable" that an accident of the kind which the appellant had might occur. In these circumstances it is necessary to consider what was the duty of the respondent to prevent such an accident. In Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488, the majority of the High Court adopted the statement of Deane, J in Hackshaw v Shaw (1984) 155 CLR 614 at 662-3 that, in an action in negligence against an occupier: "All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant's occupation of the premises and the manner of the plaintiff's entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. A prerequisite of any such duty is that there be the necessary degree of proximity of relationship. The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member. A measure of the discharge of the duty is what a reasonable man would, in the circumstances, do by way of response to the foreseeable risk." The appellant relies upon the statement by Gibbs, CJ in Turner v South Australia (1982) ALJR 839 at 840: "Where it is possible to guard against a foreseeable risk which, although not perhaps great, nevertheless cannot be called remote or fanciful, by adopting a means which involves little difficulty or expense, the failure to adopt such means will in general be negligent." The appellant submits that the trial judge fell into error in failing to find that there was a foreseeable risk of significant injury which could have been avoided by minimal effort, inconvenience and expense on the part of the Defendant by either: (a) instructing the supervising staff and the Board member on duty watch to direct patrons to avoid obstruction of the passage of patrons in the lounge area of the club, and/or (b) by relocating the tables to provide a wider path for persons crossing the lounge area (as was done the week after the plaintiffs fall). The respondent submitted that the Court had to take into account any other conflicting responsibilities which the Club had. It was established as a club for its members and their guests to congregate on the premises and enjoy each 8 UNREPORTED JUDGMENTS other's company in a convivial atmosphere "but with due safety". It would not have been regarded as appropriate by persons using the Club to have someone "marching up and down the aisles to keep the aisles clear". In addition, it could be said that such a club and its members would expect that larger than usual crowds on an Easter holiday should be tolerated. The respondent's Counsel emphasises that the risk of tripping was completely obvious to the appellant on what she knew that night and from prior experience. She knew that there was no direct way from the bar to the poker machine area except to move between the ranks of the tables with people sitting at them and that various objects were likely to be on the floor which could trip her unless she avoided them. She knew she had to take care and could only place her feet on the floor where she could see a clear passage. In my opinion, the trial judge was, on the evidence before him, entitled to find that the appellant's injuries were not caused or contributed to by a breach of the respondent's duty of care. The evidence does not justify a conclusion that the risk of injury to a person making her way across the lounge was high enough to require the respondent, as a social club, to have a member of staff constantly observing the room and ensuring that obvious obstacles were removed. While the room was unusually crowded. the evidence goes no further than that there was no way across the room which was "totally dear". The evidence supports a conclusion that the respondent was not negligent in failing to provide a way across the room which was totally clear of obvious obstacles. It is clear that Gallen, DCJ did not give any effect to Mr Bardsley's evidence that a week after the injury, the bar area was reconstructed completely, and the tables were placed well apart. Although he was a director, it would seem that Mr Bardsley was not a party to the decision to do so because he neither gave any evidence as to the purpose of the change nor was he cross-examined about it. It might have been inferred that it was intended to prevent a similar accident. However, it was open to Gallen, DCJ to regard the change as a reaction to an unfortunate accident and as not providing evidence that the respondent's negligence had caused or contributed to the plaintiffs injuries. For the foregoing reasons, I propose the appeal be dismissed with costs. Appeal dismissed with costs. Counsel for the appellant: Mr J Guihot Solicitors for the appellant: Mulholland Hozack and Clisdell Counsel for the respondent: Mr J Russell Solicitors for the respondent: Henry Davis York