Stanton & Anor v Marino [2000] NSWCA 134

New South Wales Court of Appeal

CITATION : Stanton & Anor v Marino [2000] NSWCA 134 FILE NUMBER(S) : CA 40880/98 HEARING DATE(S) : 23 May 2000 JUDGMENT DATE : 25 May 2000

PARTIES : Harry Tennyson Stanton & Patricia Betty Stanton - Appellants Anthony John Marino - Respondent JUDGMENT OF : Powell JA at 1; Giles JA at 2; Fitzgerald JA at 17

LOWER COURT JURISDICTION : District Court LOWER COURT 9704/97 FILE NUMBER(S) : LOWER COURT Garling DCJ JUDICIAL OFFICER :

COUNSEL : R C Tonner - Appellants H G Shore - Respondent SOLICITORS : Adrian Batterby, Sydney - Appellants Graham Jones, Sydney - Respondent CATCHWORDS : NEGLIGENCE - occupier's liability - turns on own facts. CASES CITED: Australian Safeway Stores Ltd v Zaluzna (1987) 162 CLR 479; Stannus v Graham (1994) Aust Tort Reports 61,561. DECISION : Appeal dismissed with costs.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40880/98 DC 9704/97

POWELL JA GILES JA FITZGERALD JA Thursday 25 May 2000 STANTON & ANOR v MARINO JUDGMENT

1 POWELL JA: I agree with Giles JA. 2 GILES JA: This was an appeal from a verdict and judgment for the plaintiff in an occupiers liability case. Quantum was not in issue, but the defendants said that they should not have been found to have been negligent or that the plaintiff should have been found to have been contributorily negligent. 3 The defendants owned and occupied a property at Revesby. In the back yard of the property was a swimming pool. The ground fell away so that the rear part of the pool was elevated above the ground. The pump for the pool was at the lower level, behind the pool. 4 The plaintiff was a swimming pool serviceman employed by Swimart at Padstow. One of the defendants asked Swimart to look at the operation of the pool cleaner, and on 6 November 1995 the plaintiff went to the property to do so. He had been told that no one would be home, and found his own way around when he got to the property. 5 The plaintiff looked at the pool cleaner in the pool and at the skimmer box, and went to check the pump. To get to the pump he had to go out of the pool enclosure and along a grassed area at the side of the pool, following a track through long grass towards the back of the property. He came to a rock wall beyond which there was a drop, variously estimated from 40 centimetres to a little under a metre, to the lower level. He put his foot on a rock at the top of the wall, on the edge of the track, in order to step down. The rock tilted forward slightly, and the plaintiff lost his balance and fell forward onto the lower level. He twisted his knee severely. The rock was not dislodged. 6 The defendants used to follow the same path to the lower level, but because of bad hips in one case and small stature in the other case they negotiated the rock wall holding onto the pool fence while stepping up or down. The plaintiff was young and fit and did not hold onto the pool fence; he tried to grab it as he fell, but it was too far away. 7 The defendants said that there was no rock where the plaintiff said he stepped, and that there was a gap in the sense of a lower part in the stone wall at that place. The trial judge found that there was a rock there, but accepted that the defendants were not aware that the rock was loose. 8 The defendants were held to have been negligent in that they failed to provide to the plaintiff as an entrant on the property a safe means of access to the pump. The trial judge said that if the case depended on the loose rock the plaintiff would "have difficulty in succeeding, because of [the] principles set out in Stannus v Graham". But he went on - "However, in my view, the defendants did not provide a safe means of access. They asked a representative of the pool company to attend at their premises while they were not there. They knew that it was likely that that person would proceed from the pool area along the very path the plaintiff took to the pump. There was, in effect, only one means of access. The plaintiff has to cross long grass, with some hidden rocks, and step down a steep step as shown in the photographs. In fact, both defendants, whilst I accept they were a little infirm, had to use the side of the pool to step down. When I put all these circumstances together, I conclude that this was not a safe means of access, and where people, particularly this plaintiff was required to go into this area, in my view he should have been warned of the possible problems, in my view, looking at the photographs, a handrail should have been provided. I am of the opinion that it was quite foreseeable that someone in the plaintiff's position may have fallen and injured themself."