New South Wales Court of Appeal CITATION : Seiko Australia Pty Ltd v Da Rin [2001] NSWCA 84 FILE NUMBER(S) : CA 41033/99 HEARING DATE(S) : 26 March 2001 JUDGMENT DATE : 10 April 2001 PARTIES : Seiko Australia Pty Ltd - Appellant Eugene Da Rin - Respondent JUDGMENT OF : Stein JA at 1; Giles JA at 2; Ipp AJA at 26 LOWER COURT JURISDICTION : District Court LOWER COURT DC 4018/98 FILE NUMBER(S) : LOWER COURT Gamble ADCJ JUDICIAL OFFICER : COUNSEL : S G Campbell - Appellant A J Bartley SC & F Toscano - Respondent SOLICITORS : Hunt & Hunt - Appellant Adrian F Guido & Co - Respondent CATCHWORDS : NEGLIGENCE - occupier - whether in breach of duty of care to entrant - entrant took short cut from car park down grassed bank to building - obvious and convenient pathways available - insignificant additional travel - no breach. RESTITUTION - defendant paid successful plaintiff - appeal then upheld - entitled to repayment - and interest. D Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; Baulkham Hills Shire Council v Pascoe (2000) NSWCA 322; CASES CITED: Production Spray Painting and Panel Beating Pty Ltd v Newman (No 2) (1991) 27 BSWLR 659; Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431; TCN Channel 9 Pty Ltd v Antoniadis (No 2) (1999) 48 NSWLR 381; Wyong Shire Council v Shirt (1980) 146 CLR 40. DECISION : Orders made on 26 March 2001 upholding the appeal, setting aside the verdict and judgment below and substituting a verdict and judgment for the appellant, and for the respondent to receive a certificate under the Suitors Fund Act if otherwise entitled. Order that there be judgment for the appellant for $162,526.12 in this Court. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41033/99 DC 4018/98 STEIN JA GILES JA IPP AJA Tuesday 10 April 2001 SEIKO AUSTRALIA PTY LTD v DA RIN JUDGMENT 1 STEIN JA: I agree with the reasons for judgment of Giles JA and with the further order which he proposes. 2 GILES JA: The appellant was the occupier of land at North Ryde. The respondent's building company was carrying out renovation work in a building on the land. On 15 June 1995 the respondent was injured when he slipped and fell on a grassed bank, part of the landscaped gardens on the land, while making his way from a car park within the land to the entrance to the building. Gamble ADCJ found that the appellant had breached the duty of care which it owed to the respondent and was liable to him in negligence, and assessed his damages at $397,628.40. She found the respondent to have been contributorily negligent, and reduced his damages by 40 per cent. On 16 November 1999 her Honour ordered that there be a verdict and judgment for the respondent for $238,577.04. 3 The appellant appealed and the respondent cross-appealed. The appeals came on for hearing on 26 March 2001. The Court first heard the parties on liability. At the conclusion of submissions on liability the Court ordered that the appeal be upheld with costs, that the verdict and judgment below be set aside, and that there be substituted a verdict and judgment for the appellant; the respondent to receive a certificate under the Suitors Fund Act if otherwise entitled. The Court said that reasons would be delivered later. 4 The appellant had sought a further order that there be judgment in its favour for $150,793.17 and interest by way of restitution of an amount paid in satisfaction of the judgment in the District Court. The respondent was not in a position to deal with that matter, and leave was given to file written submissions. 5 These reasons provide my reasons for joining in the orders made on 26 March 2001 and for the making of the further order sought by the appellant. Liability 6 Access to the appellant's land was obtained from Epping Road and from Giffnock Avenue. Three car parks were laid out within the land, broadly between the principal building on the land (being the building in which the renovation work was being carried out) and Epping Road and to the south-east and south-west of the building. The entrance to the building was on its south-westerly side near the south-easterly end of the building. 7 Assuming entrance from Giffnock Avenue, the first car park was adjacent to the south-easterly end of the building. Its size and the number of cars it could hold were clearly not established, but the evidence suggested it could hold about twenty cars. About three car parking spaces reserved for managerial staff were marked out at the point closest to the entrance to the building. Another part of the car park was designated by signage as visitors' parking, and another part again - that part closest to Giffnock Avenue - was undesignated and was available for staff parking. 8 A short internal roadway, turning about 45 degrees broadly at the south-westerlysouth-easterly corner of the building, led to a second car park. It was described as having ten to twelve parking spaces, but appears from photographs in evidence to have been of a size to contain about twenty cars. It was approximately opposite and a short distance from the entrance to the building but, because of the 45 degree turn, aligned at an angle of about 45 degrees from the south-westerly side of the building. The second car park was used as visitors' parking and staff parking. 9 A very short link then led to a third car park, about the same size as the second car park, aligned similarly to the second car park and a little more distant from the building and from the entrance to the building. The third car park was also used for visitors' parking and staff parking. 10 Another internal roadway led out from the third car park to Epping Road. Entrance could also be had from Epping Road, which was in fact the principal entrance, in which case the car parks would be encountered in reverse order. I refer to the car parks as the first, second and third car parks only for identification, and in conformity with the way they were often referred to in the appeal. 11 In 1995 the link between the second car park and the third car park was usually blocked off with a chain at about 8.30 am, to stop use of the car parks and internal roadways for through travel from Giffnock Avenue to Epping Road or vice versa. This was not done, however, while the renovation work was being carried out by the respondent's company, it seems because it was thought that access to the building would be unduly impeded for those involved in carrying out the renovation work ("workmen") and for the delivery of construction materials and removal of construction debris. The workmen, including the respondent, parked in the undesignated area in the first car park and the visitors' area in that car park, and in the second and third car parks: one witness said that "cars were parked all over the car parking spots when it came to tradesmen". 12 The first car park was at approximately the same level as the building. The second and third car parks were at higher levels than the building, by approximately one to one and a half metres. 13 A person parking in the first car park could walk directly from it to a pathway running along the south-westerly side of the building ("the side pathway"), and down that pathway for a short distance to the entrance to the building. A person parking in the second car park could walk to the entrance of the building in one of two ways. He could go to the end of the car park closer to the first car park and a very short distance along the internal road, then turn down a paved pathway leading directly to the side pathway at the entrance to the building ("the lower pathway"). Or he could go to the link between the second car park and the third car park, and then down a paved pathway curving around parallel with the long access of the second car park again leading to the side pathway at the entrance to the building ("the upper pathway"). The lower pathway and the upper pathway formed an elongated semi-circle within which was the part of the second car park closer to the building. A person parking in the third car park would also go to the upper pathway leading from the link between the second and third car parks. 14 As I have said, the second and third car parks were at higher levels than the building. The grassed bank relevant to this case ran down from the second car park to the lower pathway and the upper pathway, broadly in an elongated half-circle shape formed by the pathways as the arc of a semi-circle and the car park as its diameter. The fall from the car park to the pathways was not uniform, but was of the order of 1 in 15. 15 On 15 June 1995 the respondent parked in the second car park, it seems in about the middle space of the car parking spaces in the part of that car park closer to the building. He had parked in the second car park regularly while the renovation work was under way, arriving before staff and visitors when all the car parks were virtually empty. He did not take either of the lower pathway and the upper pathway to the entrance to the building. Instead, he went in a straight line from where he had parked towards the entrance to the building, going at an angle down and across the grassed bank. He said that he had normally done so when he had parked in the second car park. The grass was wet, probably with dew, and there were some small bare patches. On this occasion the respondent slipped and fell, and was injured. 16 In taking this straight line route the respondent would have walked ten or eleven metres to the upper pathway where it met the side pathway, and another couple of metres along and across that pathway to the entrance to the building. Had he taken the lower pathway route, he would have walked about thirty metres to the entrance to the building. Had he taken the upper pathway route he would have walked about thirty-five to forty metres to the entrance to the building. These figures are approximate, the evidence being deficient, but it was accepted that the differences in walking were of the order of twenty to twenty-five metres and thirty metres. 17 The appellant owed to the respondent a duty to take reasonable care to avoid a foreseeable risk of injury to him (Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479). Gamble ADCJ held that it was in breach of that duty of care, saying - "Counsel for Mr Da Rin, Mr Bartley, suggested Seiko had a responsibility to make special arrangements to ensure safe access for the builders. Because the work was to take some months, Mr Bartley suggested the normal parking arrangements should have been reviewed and perhaps modified by Seiko to ensure safe access for the workers. I agree with this submission. Seiko was aware of the danger posed by the slope and officers of the company were aware of its occasional use as a short cut. Seiko was in a position to do something about the risk to the building workers. It was in a position to make plans for their access to the work site and could have been expected to discuss access arrangements with Mr Da Rin as supervisor of the work. Seiko did nothing to ensure safe access despite evidence of potentially unsafe practices adopted by the workers and their deliverers. Although there were no specific instructions to prevent use of the executive and visitors' car parks, it was implicit that the builders were not welcome to leave their vehicles in those parks. This left the builders to choose to park in the south west car park as the closest and most convenient park to the main entrance, and to use the short cut across the slope. The roadway closest to the entrance was used for deliveries and removal of waste, via a safe level path, but this was very temporary parking. I believe Seiko had a responsibility to make more suitable arrangements for the builders' access to their work." 18 The respondent sought to uphold the basis on which he had succeeded before her Honour. He expressly disclaimed a case of breach of the duty of care by failing to put up warning signs or otherwise warn or failing to provide a barrier, in order to discourage or prevent a person parking in the second car park from taking the straight line route down the grassed bank. He did not suggest that something should have been done to make passage down the grassed bank safer. Rather, he submitted that the appellant had breached its duty of care by failing to suspend or modify normal parking arrangements so that the workmen had "unhindered access to those car parks which afforded direct access by path" to the entrance to the building. Specifically, it was said that the appellant should have designated for use by the workmen either the end of the first car park closest to the side pathway or that part of the third car park which was immediately adjacent to the upper pathway. 19 In fact the workmen parked in the first and third car parks, and although Gamble ADCJ considered that was discouraged there is no doubt that the respondent could and would have parked there if the second car park had been full. He did not do so because he found the second car park more convenient. The appellants' submission amounted to a case that the appellant should have forbidden the use of the second car park by the workmen because they might take a short cut down the grassed bank to the entrance to the building, and that this should have been done because it was dangerous to traverse the grassed bank. 20 There being a duty of care, what risk would a reasonable man in the appellant's position have foreseen and what should the reasonable man have done by way of response to the risk? In applying the well-known postulation of these questions and discussion of relevant considerations in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-8, it is established that the duty of care is owed to those who might fail to take proper care for their own safety as well as those who are reasonable and careful. But that does not mean that an occupier must guard against any and every foreseeable risk, or against risk arising from an entrant deliberately behaving in a foolhardy or reckless manner. In Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 emphasis was given to the required response being a reasonable response, not one of absolute protection (see per Brennan CJ at 445, per Toohey and Gummow JJ at 279-80, and per Kirby J at 478-80), and in deciding what is reasonable the occupier can have regard to the fact that most entrants will take reasonable care for their own safety (see especially per Kirby J at 478). 21 In the present case the appellant was aware that persons occasionally took the straight line route from the car park taken by the respondent, but there had not been any report to it of a person slipping on the grassed bank in the five years or so prior to June 1995. Grassed banks of the kind described and revealed in the photographs in this case are an everyday occurrence, and that the grassed bank might be slippery would be as obvious to a person in the position of the respondent as to the appellant. A workman parking in the second car park had obvious and convenient pathways to the main doorway to the building, with insignificant additional travel. In my opinion the appellant's duty of care did not require that it forbid use of the second car park by the workmen. (If use by the workmen should have been forbidden, why not use by everyone?) With respect, I consider that Gamble ADCJ was in error in finding that the appellant breached the duty of care it owed to the respondent. Restitution 22 We were informed that, of the judgment sum of $238,577.04, an amount of $72,150.75 was repayable (and presumably was paid) to GIO Australia Ltd pursuant to the provisions of s 151Z(1) of the Workers Compensation Act 1987. An application by the appellant for a stay of execution of the judgment was refused, and the balance of the judgment sum was paid to the respondent on 30 June 2000. 23 The appellant claimed the order for repayment on the authority of Production Spray Painting and Panel Beating Pty Ltd v Newman (No 2) (1991) 27 NSWLR 659 and TCN Channel 9 Pty Ltd v Antoniadis (No 2) (1999) 48 NSWLR 381. Having had the opportunity to consider the matter, the respondent made no submission against the making of the order. 24 Repayment to the appellant of the amount of the judgment sum paid to the respondent falls within the authority of these cases, and in the circumstances further discussion of the appellant's entitlement to that amount is unnecessary. I take it that the discrepancy between the $150,793.17 claimed by the appellant and the difference between $238,577.04 and $72,150.75 is accounted for by other repayments to third parties made by the appellant. Although the parties did not refer to it, in Baulkham Hills Shire Council v Pascoe (2000) NSWCA 322 it was held that a sum ordered to be repaid to a successful appellant carried interest from the date of payment to the respondent. Interest on $150,793.17 at the rates in Schedule J from 30 June 2000 to the date of these reasons is $11,732.95. 25 The orders disposing of the appeal have already been made. I propose that it also be ordered that there be judgment for the appellant for $162,526.12 in this Court. 26 IPP AJA: I agree with Giles JA. _________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.