Allen v Taylor [1999] NSWCA 135

New South Wales Court of Appeal CITATION : Allen v Taylor [1999] NSWCA 135 revised - 11/06/99 FILE NUMBER(S) : CA 40081/98 HEARING DATE(S) : 29 March 1999 JUDGMENT DATE : 13 May 1999

PARTIES : Shane Roderick Frederick ALLEN v Joyce Mary TAYLOR JUDGMENT OF : Mason P at 1; Meagher JA at 17; Sheppard AJA at 26

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 86/97 DC at Wagga Wagga LOWER COURT JUDICIAL OFFICER : Mahoney DCJ

COUNSEL : Appellant: I. Wales SC/E. Romanuik Respondent: J.D. Hislop QC/J. Sewell SOLICITORS : Appellant: Walsh & Blaire Respondent: Curwood & Partners CATCHWORDS : Negligence - duty of care - breach of duty - causation. Hackshaw v Hackshaw (1984) 155 CLR 614 Australian Safeway Stores Pty Limited v Zaluzna (1987) 162 CLR 479 CASES CITED: Wyong Shire COuncil v Shirt (1980) 146 CLR 40 Romeo v Conservation COmmission of the Northern Territory [1998] HCA 5 Phillis v Daly Morgan (1988) 15 NSWLR 65 Morgan v Sherton Pty LImited [1999] NSWCA 60 DECISION : Appeal allowed.

- 16 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA: 40081/98 DC(Wagga Wagga) 86/97

MASON P MEAGHER JA SHEPPARD AJA

Thursday, 13 May 1999 Shane Rodney Frederick ALLEN v Joyce Mary TAYLOR JUDGMENT

1 MASON P: The appellant was injured while driving a four-wheeled motorcycle across a paddock in a property belonging to his grandmother, the respondent. She had asked him to go across to a paddock visible in the distance and to look at some heifers that she thought were ready to go to the bull. It was daylight. She invited him to "take the bike", which he had ridden before. 2 The appellant drove straight across towards the paddock. He noticed that "the ground cover was very tall, so therefore I had to be careful" (Black AB 9). There was rye grass, up to about thigh height for a person of average height. 3 The appellant was travelling at a speed which he estimated as between 12 and 15 kms per hour. The bike dipped into a hole or gully and, as this happened, the appellant's leg slipped forward off the peg and between the wheels of the bike. The appellant said that he was looking ahead when the accident occurred and that he did not see the hole due to the long grass. "[It] just looked like a nice straight smooth route to take" (Black AB 11). 4 What was initially described as a hole was identified as an indentation or gully by reference to a photo taken after the grass had been cleared. Upstream of the place where the accident occurred the gully is more visible, due to obvious erosion. At the relevant point, the terrain was generally flat. The gully was grassed at the point of impact and the ground surface was not broken. It was a gully rather than a hole, about 1 foot deep at the point of the accident, the same as the diameter of the bike wheels. 5 Duty of care is not in issue. But the appeal raised two questions: (1) whether the respondent was shown to have breached her duty; and (2) whether any breach caused or contributed to the appellant's injury. Breach not established 6 In the context of the liability of public authorities, the High Court has recently emphasised that the general duty of care requires the taking of reasonable steps. The occupier must take into account the possibility that entrants might fail to take proper care for their own safety, but the defendant is not an insurer (see Romeo v Conservation Commission of the Northern Territory [1998] HCA 5 at 22-3 (Brennan CJ), 50-53 (Toohey and Gaudron JJ), 123 (Kirby J)). In this, as in other areas including the ordinary occupier's duty of care "the 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" (Hackshaw v Shaw (1984) 155 CLR 614 at 663 per Deane J). In responding to a perceived risk of injury, the reasonable person is required to consider and balance the range of factors adverted to in the oft-cited passage from the judgment of Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-8. 7 The appellant was an experienced rider of four-wheeled motorcycles. He was also familiar with the property belonging to his grandmother. He had visited it fairly often over the previous four years and traversed it extensively both in times of drought and by good ground cover. 8 The appellant was also well versed in rural matters. He knew that water courses or gullies were very common in the Tarcutta area. The long grass in his grandmother's property was obvious and the appellant acknowledged that he knew this could make it extremely difficult to see gullies or creek beds, and that it was therefore necessary to be careful (Black AB 38). The gully in question was visible in its upper reaches on the day of the accident. 9 The appellant did not press the submission that negligence lay in failure to fill in the watercourse. Rather, it was said that there should have been a warning, to the effect of : "Be careful. There is a gully or watercourse if you take the direct route across to the cows." 10 I agree with the learned trial judge that the absence of such a warning did not involve negligence. It was not unreasonable to expect and assume that this experienced rider, familiar with the property in question and aware of the need to exercise care when traversing a bumpy terrain in which gullies or watercourses might be expected, would take proper care in relation to the inherent risks of the exercise upon which he was embarking. No express warning was called for in the circumstances. I agree generally with the trial judge's reasons. 11 The mere foreseeability of the possibility that injury might occur if the bike hit a concealed rock or gully did not require such particular risks to be drawn expressly to the appellant's attention. Failure to do so was not an unreasonable response having regard to the calculus in the well-known passage in Wyong Shire Council v Shirt at 47 which is set out in the judgment of Meagher JA. 12 This was a situation where the magnitude of the risk was such that the occupier was entitled to assume that the appellant would take reasonable care for his own safety in traversing terrain with which he was generally familiar. See Phillis v Daly Morgan (1988) 15 NSWLR 65; Morgan v Sherton Pty Ltd [1999] NSWCA 60. 13 I recognise that the gully into which the appellant drove the bike was concealed (at the point of the accident) by the rye grass, and that the appellant did not know of its existence. But the respondent was not to know the precise route which the appellant might choose in his traverse of the property. In any event, the respondent did not act unreasonably in the circumstances, in assuming the appellant would drive in a manner appropriate to the particular terrain he was crossing, having regard to its inherent dangers. 14 There are cases where it is beyond the bounds of reason to hold the defendant to be in breach for failure to adopt a suggested precaution. (Glass, McHugh and Douglas The Liability of Employers 2nd ed p44). In this context, Kitto J once remarked that: When I am asked to hold that a jury may reasonably think it negligent of an employer not to give a grown man instructions in looking after himself while cutting pieces of bush timber with a tomahawk, I feel obliged to decline on the ground of common sense to do so. (Electric Power Transmission Pty Ltd v Cuiuli (1961) 104 CLR 177 at 180-1.) Unnecessary to decide causation issue 15 It becomes unnecessary to decide the second issue. I content myself with remarking that it was far from self evident that the putative warning would or might have made any difference to the way the appellant set about his traverse. 16 In my view the appeal should be dismissed with costs. 17 MEAGHER JA: On 24 October 1995 Mr Allen sustained injuries when he was riding a motor cycle across a gully in one of his grand mother's paddocks in order to inspect that lady's cows. He sued her in negligence, but lost in a trial heard by Mahony DCJ. He now appeals. In my view his appeal should succeed. 18 The following facts are not in dispute: 1. The plaintiff's grandmother, the defendant Mrs Taylor, was the owner of the land on which the gully was situate. She had lived on the land for four years. She did not give evidence. One must infer that she knew the gully existed. 2. It was at her request that the plaintiff drove across her paddocks, at her suggestion he used a motorbike. The journey was undertaken for her purposes. 3. The gully was concealed beneath very tall grass. 4. Mr Taylor also knew that. 5. The plaintiff did not know of the existence of the gully at the point of the accident. He knew, of couse, that similar gullies existed in the country thereabouts; and he knew that a gully existed further up the hill (in fact being the very gully in question, although he did not know that). 6. The defendant, one must infer, knew that a risk of injury existed; that is, there existed a foreseeable risk of injury which was not merely fanciful. 19 In these circumstances, Mrs Taylor owed a duty of care to her grandson Mr Allen. So much was conceded by the respondent. 20 What is the content of that duty? Surely to warn the plaintiff of the existence of the gully. In the well-known words of Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47: "In deciding whether there has been a breach of duty of care a 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 might have. It is only when these matters balance 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." 21 Applying this principle to the current facts, in my view in circumstances where the appellant had not previously traversed the gully, was not previously aware of its existence, was provided with a motorised vehicle to travel to a paddock containing the respondent's cattle with a view to inspecting those cattle and reporting to the respondent that the failure of the respondent who knew or ought to have been aware of the presence of the gully to warn the Appellant of the presence of the gully, its general locality and the need to take care when approaching it constituted a breach of duty which is consistent with the modern law of negligence. In the terms of the criteria referred to in Wyong Shire Council v Shirt the risk of injury to the plaintiff was of a sufficient magnitude to warrant a response by the respondent; the degree of its probability of occurrence was not so insignificant as to justify no response by the respondent; there was no expense, difficulty nor inconvenience associated with the provision of the warning and there was no conflicting duty or responsibility owed by the respondent to any other party which permitted a failure to warn the appellant. 22 To render the respondent liable his Honour held would require him to provide "some sort of grid reference". It would not. All it would require was for the respondent to inform the appellant that a gully traversed the paddock and was hidden by grass. 23 His Honour said he was not prepared to hold that it was reasonable for Mrs Taylor to tell the appellant "how to ride a motorcycle through some rye grass pasture". That is true enough, but irrelevant. It was not the plaintiff's case. All he wanted was a minimal reference to the existence of the gully. 24 Finally, his Honour laid great stress on the plaintiff's general knowledge of local topography. I cannot see that this avails the defendant unless it amounts to knowledge of the existence of the gully in question, which it did not. 25 I would make the following orders: 1. Appeal allowed; 2. Verdict for the defendant set aside; 3 In lieu thereof order a new trial limited to damages; 4 Order the respondent to pay the appellant's costs of the appeal, but to have a certificate under the Suitors Fund Act . 5 The costs of the trial to abide the trial on damage. 26 SHEPPARD AJA: I confess to having found the answer to the question raised by this appeal elusive. At bottom I think the case is one concerning occupiers liability but I confess to thinking at times that the reality is that it is a case involving a casual act of negligence. Fortunately the distinction which there used to be between these two types of case is no longer of relevance. That is because of the approach adopted by Deane J in Hackshaw v Shaw (1984) 155 CLR 614 where his Honour said (at 662-3) that, in an action in negligence against an occupier, it was unnecessary to go through the procedure of considering whether either one or both of a special duty qua occupier and an ordinary duty of care was owed. His Honour continued: 0 27 That passage was adopted by the majority of the High Court in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488. Accordingly, the approach which the Court should adopt here is to determine whether, in all the relevant circumstances including the fact of the respondent's occupation of the premises and the manner of the appellant's entry upon them, the respondent 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 between the two and the touchstone of its existence in this case is that there was a reasonable foreseeability of a real risk of injury to the appellant. 28 That suggests that the question at issue is the nature and extent of the duty (if any) owed by the respondent to the appellant in the circumstances of this case. I recognise that that is not the approach of others. In particular, it was not the approach of senior counsel for the respondent who conceded that there was a duty of care owing to the appellant so that the question was whether there had been a breach of that duty rather than the ambit or extent of any duty which applied. In the run of the argument counsel's concession was noted without any reaction from me. I did not myself then perceive what I now perceive to be the correct approach to the problem. It follows that, for my part, I would not hold counsel to his concession. If I am wrong in the approach I have adopted, then what I am about to say will be relevant to the question of breach rather than duty. In that event, however, it is my respectful opinion that there can not be any question about the respondent's liability. 29 Accordingly, on the approach I take, the first question is whether a duty of care was owed the appellant by the respondent. The essential facts are stated in the judgments to be delivered by the other members of the Court. They amount to a simple story. The respondent is the appellant's grandmother. She owned and occupied the property in question. She wished her grandson to inspect cows in a paddock which could be reached most conveniently by approaching it across another paddock in which the grass was very high. The long grass masked the point of danger, and thus the potential source of a risk of injury to the appellant, namely a depression or gully which appears to have been some sort of watercourse, perhaps usually dry, descending from a hill remote from the paddock. To the inexperienced it would not necessarily appear that the gully or depression continued into the paddock which the appellant set out to cross. He did not walk across the paddock. At his grandmother's suggestion he used a four wheel motorcycle for that purpose. 30 The evidence establishes that, although the appellant was young, he was no stranger to country life and to work on the land. He had a degree of experience sufficient to be entrusted with the task of advising his grandmother about the condition of the cattle in the paddock adjoining that which had the long grass. 31 In ordinary circumstances a person crossing a paddock overgrown with long grass, whether on foot or otherwise, would be wise to walk or travel carefully in case there were lurking under the grass any object or condition of the land which might prove dangerous. On a property such as the one in question one would need to look out not only for depressions in the ground but also for other objects such as discarded farm machinery or tools which could be hidden in the long grass. The appellant used the motorcycle to cross the paddock with the long grass at the respondent's suggestion. Those are the fundamental facts. 32 The situation was a family one. The appellant was doing his grandmother a favour. Probably neither thought very much about it. She wanted the cattle looked at. He was capable of making an assessment of their condition and so he went to do what she asked. But there was no question of his being an employee nor of his being in some way in a business relationship or contractual relationship with his grandmother. He did what he did in response to a request made to him by a close relative with whom he was obviously on good terms. 33 When people occupy premises, all sorts of visitors enter them. Some will be tradespeople. Some will be canvassers. Others will be relatives or friends. In the course of one's ordinary dealing with such people, one will often say, "Be careful of that path (or floor). It can be quite slippery", or "Do be careful of the step at the end of the hallway", or "Mind you do not bump your head when you go through the doorway; it is quite low". Countless other examples could be given. All this is done as a consequence of the natural care and concern that we have for visitors to our properties. The question is whether in a given case of that kind there is a legal obligation imposed by the law upon the occupier to warn the visitor or friend of potential danger, no matter how close their relationship may be. In their ordinary dealings with each other people would rarely think of their legal responsibilities in such situations. They act in accordance with ordinary courtesy and concern for the safety of those who are in their houses or their land. 34 The passage cited from the judgment of Deane J in Hackshaw makes it clear that each case must depend upon its own facts and circumstances. One cannot lay down any general rule and I would endeavour to avoid falling into the error of attempting to do so. What must be done in this case is to look at the facts and circumstances here. What I think has worried me about the case is that the taking of the approach advocated by counsel for the appellant may have an air of unreality about it. The appellant carried out what was to him an ordinary everyday task for his grandmother. Neither would have thought of danger or trouble. But the question is whether she nevertheless owed him a duty of care under the ordinary principles of negligence. If she did, the result, in my opinion, is that proposed by Meagher JA. 35 The bare facts are that the appellant was doing his grandmother a favour. It was she who suggested he cross the paddock overgrown with grass and she who suggested that he should use the motorcycle. She apparently knew of the depression. It was a source of potential danger which could lead, and did in fact lead, to the appellant suffering a moderately severe injury. It is not using hindsight to say that that would have been fairly obvious to anyone who thought about the matter. In all those circumstances I think it is correct to conclude that the respondent was under a duty of care to the appellant. I agree with Meagher JA that the duty would have been discharged by a warning that there was the depression running through the paddock and to be careful of it. The precise position of the depression need not have been pointed out. It would have been enough to say, "Do be careful of the gully which runs across the paddock. You cannot see it because it is covered by the grass". 36 In my opinion, the respondent was under a duty to give this warning and that there was accordingly a breach of that duty. It follows that I agree with Meagher JA in thinking that the appeal should be allowed. I agree also with the orders which he proposes.