Supreme Court New South Wales Medium Neutral Citation: Richardson v Mt Druitt Workers Club [2011] NSWSC 31 Hearing dates: 9 December 2010 Decision date: 10 February 2011 Jurisdiction: Common Law Before: Adams J Decision: Statement of claim dismissed with costs. Catchwords: NEGLIGENCE - Civil Liability Act 2002 ss 5G & 5S - plaintiff member of defendant club - plaintiff climbed locked gate on defendant's premises rather than return to the clubhouse for a key and fell sustaining injury - no duty of care - plaintiff's actions not reasonably foreseeable - no duty to protect against plaintiff's actions - contributory negligence - no reasonable cause of action - proceedings dismissed. Legislation Cited: Civil Liability Act 2002 ss 5B, 5C, 5D, 5G & 5S Uniform Civil Procedure Rules r 14.28 Cases Cited: Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 69 ALR 615 Caterson v Commissioner of Railways [1973] HCA 12; (1973) 128 CLR 99 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 March v E and M H Stramare Pty Ltd (1991) 171 CLR 506 Modbury Triangle Shopping Centre Pty Ltd v ANZIL [2000] HCA 61; (2000) 176 ALR 411 Nagle v Rottnest Island Authority (1993) 177 CLR 423 Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330; (2007) 238 ALR 761 Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; (1998) 192 CLR 431; (1998) 151 ALR 263 The Council of the Shire of Wyong v Shirt (1980) 146 CLR 40 Category: Principal judgment Parties: John Richardson (Plaintiff) Mt Druitt Workers Club (Defendant) Representation: Counsel: M Cranitch SC and A D Campbell (Plaintiff) J E Sexton SC (Defendant) Solicitors: Carro & Associates (Plaintiff) Lee & Lyons (Defendant) File Number(s): 2010/00100912 Judgment Introduction 1The plaintiff was seriously injured when he slipped and fell whilst climbing over a closed and locked gate otherwise giving access to the rear of the defendant's premises. The defendant is a club of which the plaintiff was a member. He frequently attended the club for social activities and, for that purpose, used the gate for access to the club and when going home. The gate, which had been installed perhaps a year or so before the accident, was only about 200 metres from his house and about 150 metres from the clubhouse. The plaintiff entered the premises through the gate but it was locked when he attempted to use it to go home. He had never found it locked before. It was raining. Rather than go back to the clubhouse to get a member of the club staff to unlock the gate to let him out, he decided to climb over it and unfortunately slipped and fell. 2The plaintiff has commenced an action against the club in negligence and breach of contract. The defendant applies for an order under r 14.28 of the Uniform Civil Procedure Rules striking out the statement of claim as disclosing no reasonable cause of action. The circumstances alleged 3It is not necessary to set out all the allegations of fact. In substance, the negligence is said to arise from the following matters - (i) this was the first time the plaintiff had found the gate closed and locked; (ii) the main entrance to the club premises was closed and the only open entrance was on the other side of the building, which was signed "No pedestrian access" [but it is not alleged that there was any physical impediment to its use]; (iii) it was raining on the night in question; (iv) the defendant knew that patrons would expect to use the rear entrance; (v) steel bollards were in place close to the gate that allowed the plaintiff to climb onto the gate when otherwise it might not have been possible and the gate was slippery because it was constructed of metal and was wet; (vi) it was foreseeable that someone in the position of the plaintiff would attempt to climb over the gate; (vii) the defendant failed to ensure that the gate was not locked before closing time and to provide an open pedestrian rear access for the use of club patrons, when it encouraged the plaintiff and other patrons to walk to and from their homes at the rear of the premises; (viii) the defendant placed "the plaintiff in a position where the only means of egress available to him was to climb the fence"; (ix) there was no intercom at the gate to enable persons such as the plaintiff to call for assistance to unlock the gate when the defendant knew that it was remote from the club and was, at the time, the only authorised pedestrian access from the club; (x) the defendant failed to warn the plaintiff, by announcement of the club's public address system that the gate had been locked; and (xi) res ipsa loquitur . 4So far as the claim in contract is concerned, it is alleged that there was an agreement between the parties that, in consideration of his membership fees, the club would provide access to and from its premises through the rear entrance and, for this purpose, the gate would be kept unlocked whilst the club was open. It is alleged that the club breached this agreement by locking the gate before the club had closed so that the plaintiff was unable to leave the premises except by climbing the gate. 5The amended statement of claim, in effect, merely alleges that there was no other means of "authorised" egress than the locked gate. However, since, the gate was locked, it is difficult to see how it could possibly be regarded as an "authorised" or, indeed, any mode of egress. Reading the pleading as a whole it is not alleged (despite the language of paragraph 21(i) of the amended statement of claim, quoted in sub-paragraph (viii) above) that there was no mode of physical egress from the premises, so that the plaintiff had to climb a fence, or the gate in order to get out. Nor is it suggested that a member of the club staff would not have unlocked the gate upon request. Additional facts 6Mr Cranitch SC for the plaintiff referred to several additional matters of fact upon which the plaintiff relied. He said there were two side entrances which were signed "not for pedestrian access". He submitted that the path back to the clubhouse was dark and potentially dangerous and thus it was reasonable for the plaintiff to attempt to climb the gate. 7A photograph tendered by Mr Cranitch shows that the gate forms part of a fence which takes the form of vertical parallel bars with a horizontal bar near the top and the bottom. Each of the vertical parallel bars has a "spear" top, obviously to prevent or hinder persons from climbing over the fence. He submitted that the bollards, which served no apparent purpose, invited someone to use them to climb the fence; the photograph shows this submission to be without merit. Discussion 8In Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; (1998) 192 CLR 431; (1998) 151 ALR 263 Kirby J stated at [115]: [u]nless particular issues are conceded, it is highly desirable that trial courts should approach such disputes [disputed claims in negligence] by considering, in turn, the standard questions [omitting 5]: 1 Is a duty of care established? (The duty of care issue.) 2 If so, what is the measure or scope of that duty in the circumstances? (The scope of duty issue.) 3 Has it been proved that the defendant is in breach of the duty so defined? (The breach issue.) 4 If so, was the breach the cause of the plaintiff's damage? (The causation issue.) 6 (Where relevant) has contributory negligence on the part of the plaintiff been proved and, if so, with what consequences? (The contributory negligence issue.) 9This incremental approach was impliedly approved by Gummow J in Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330; (2007) 238 ALR 761and it is convenient to follow the steps set out by Kirby J. The duty of care issue 10The authorities clearly establish that an occupier owes a duty to all entrants who are lawfully present on the occupier's land: Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 69 ALR 615 per Mason, Wilson, Deane and Dawson JJ at 621; cf Modbury Triangle Shopping Centre Pty Ltd v ANZIL [2000] HCA 61; (2000) 176 ALR 411 per Gleeson CJ at [17]. The real question is the scope of the duty. 11In Australian Safeway Stores , the majority described the duty of care owed by the occupier of land to a lawful entrant as being to "take reasonable care to avoid a foreseeable risk of injury to the respondent" (at 621). This view was cited with approval by Hayne J in Modbury at [112]. There is nothing in the relationship between the plaintiff and the defendant to suggest that any "special relationship" existed between the two so as to give rise to a more onerous duty. It may be fairly said that the mere existence of a fence (for such the locked gate became) shows that the attempted climbing of it was foreseeable, it being constructed in such a way as to indicate not only the boundary of the defendant's property but also to make it difficult and, indeed, dangerous to climb. Its height and the sharpened post tops comprised an unmistakeable sign that an attempt to climb it was fraught with danger of serious injury. Since it was not designed to absolutely prevent the possibility that it could be climbed, that someone might do so was plainly foreseen and, given its construction, likely to be hazardous. It may therefore be arguable, but only just, someone might try to climb the gate and, in this sense, it might be that the risk of injury sustained by the plaintiff was not far-fetched or fanciful and therefore was reasonably foreseeable ( The Council of the Shire of Wyong v Shirt (1980) 146 CLR 40 at [48] (Mason J)). However, as Toohey and Gummow JJ commented in Romeo (at [53]), "the risk existed only in the case of someone ignoring the obvious". 12Here, the plaintiff contends, in substance, that the defendant should have foreseen that, if it did not warn him before he left to go home that the gate was locked or provide an intercom at the gate, he would try to climb it and thus risk injury. So understood such a possibility would in my view be rightly dismissed as far-fetched or fanciful. Scope of Duty 13If there were a duty here, its scope needs to be identified, in the context of the duties owed by an occupier to lawful entrants. 14In Romeo , the plaintiff entered a reserve controlled and managed by the respondent Conservation Commission and fell off the edge of a cliff. The High Court, in dismissing her claim, considered the nature of the duty owed by the defendant. Toohey and Gummow JJ at [50] considered that, whilst the Defendant owed the plaintiff a duty of care by virtue of the relationship of occupier and entrant, its scope depended on "the action that a reasonable person in the respondent's situation would have taken to guard against the foreseeable risk of injury which existed" on the footing that the occupier had to take into account "the possibility that one or more of the persons to whom the duty is owed might fail to take proper care for his or her own safety" (quoting Nagle v Rottnest Island Authority (1993) 177 CLR 423 at 431). But this does not mean that the occupier "was obliged to ensure, by whatever means, that those coming onto the Reserve would not suffer injury by ignoring an obvious danger". This view was adopted by Gummow J (with whom Heydon J agreed) in Dederer [2007] HCA 42, where his Honour stated at [18]: Secondly, whatever its scope, a duty of care imposes an obligation to exercise reasonable care; it does not impose a duty to prevent potentially harmful conduct. 15In Romeo Toohey and Gummow JJ went on to conclude at [54] that there was: a duty of care on the respondent [the Commission] to take any steps that were reasonable to prevent the foreseeable risk becoming an actuality. But reasonable steps did not extend to fencing off or illuminating the edge of the cliff which was about two kilometres in length. McHugh J at [82], pointed to the catastrophic consequences of a fall from the cliff and the likelihood that, considering the proximity of a car park, many persons might come close to the cliff edge by virtue of its scenic attractions, and concluded that, unlike other parts of the cliff where the possibility of a fall "might fairly be regarded as so unlikely that a reasonable person would disregard it", the defendant was negligent for failing to fence that part where the plaintiff fell. 16It is, in effect, the case of the plaintiff that the scope of the duty of the defendant was either not to lock the gate or to provide a more convenient mode of getting a staff member to unlock it than requiring the plaintiff to walk back to the clubhouse to obtain assistance, especially at night in the rain. Breach of Duty 17The test for determining whether a defendant has breached his duty to a plaintiff was stated by Mason J (as he then was) in Shirt (1980) 146 CLR 40 at 47 - 48: 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. 18In the instant case, the breach is said in substance to arise from locking the gate and, because there was no warning to patrons in the clubhouse or an intercom at the gate, failing to take reasonable steps to obviate the risk that the plaintiff would injure himself by attempting to climb the gate. 19During the course of submissions Mr Cranitch SC referred to Caterson v Commissioner of Railways [1973] HCA 12; (1973) 128 CLR 99 to support the plaintiff's claim. In Caterson the High Court found that it was open to a jury to find that it was reasonably foreseeable that an occupant of a train who was assisting a passenger aboard the train might jump off the train in order to avoid being conveyed a significant distance, approximately 80 miles, so that it was negligent not to warn such a person that the train was about to leave the station and give adequate time to alight. Gibbs J said (128 CLR 99 at 111) - Where a plaintiff has by reason of the negligence of the defendant been so placed that he can only escape from inconvenience by taking a risk, the question whether his action in taking the risk is unreasonable is to be answered by weighing the degree of inconvenience to which he will be subjected against the risk that he takes in order to try to escape from it ... 20It is rarely useful to cite other factual examples in this area. Caterson is significantly different to the instant case. The inconvenience faced by the plaintiff here was not in any sense comparable to that faced by a person in the position of the shanghaied passenger in Caterson . Causation 21In a sense, the fact that the gate was closed and locked gave rise to the attempt of the plaintiff to climb it, slip and fall and suffer injury. However, it could not be said in any commonsense way that locking the gate caused the plaintiff's injuries. They were caused by his attempt to climb the fence or, to put it slightly differently, by the decision to climb the fence rather than return to the clubhouse to get a member of the defendant's staff to go with him to open the gate. The failure of the defendant to warn him that the gate was locked before he left the clubhouse or to provide an intercom at the fence to enable an employee with a key to be summoned (or, perhaps, to unlock the gate by electronic means), was not in any commonsense way the cause of his decision to climb the fence or the resulting injury from the subsequent fall. (Cf March v E and M H Stramare Pty Ltd (1991) 171 CLR 506 per Mason CJ at 515 - 516, Deane J at 521 - 523, Toohey J at 524). An instructive discussion is contained in the judgment of Mason CJ dealing with novus actus interveniens ( ibid at 517 - 518, omitting most references) - The facts of, and the decision in, M'Kew [v Holland & Hannen & Cubitts [1970] SC (HL) 20] illustrate the same deficiency in the ["but for"] test. The plaintiff would not have sustained his ultimate injury but for the defendant's negligence causing the earlier injury to his left leg. His subsequent action in attempting to descend a steep staircase without a handrail in the normal manner and without adult assistance resulted in a severe fracture of his ankle. This action was adjudged to be unreasonable and to sever the chain of causation. The decision may be explained by reference to a value judgment that it would be unjust to hold the defendant legally responsible for an injury which, though it could be traced back to the defendant's wrongful conduct, was the immediate result of unreasonable action on the part of the plaintiff. But in truth the decision proceeded from a conclusion that the plaintiff's injury was the consequence of his independent and unreasonable action. The fact that the intervening action is deliberate or voluntary does not necessarily mean that the plaintiff's injuries are not a consequence of the defendant's negligent conduct. In some situations a defendant may come under a duty of care not to expose the plaintiff to a risk of injury arising from deliberate or voluntary conduct or even to guard against that risk: see Chomentowski v Red Garter Restaurant Ltd (1970) 92 WN (NSW) 1070. To deny recovery in these situations because the intervening action is deliberate or voluntary would be to deprive the duty of any content. It has been said that the fact that the intervening action was foreseeable does not mean that the negligent defendant is liable for damage which results from the intervening action ... But it is otherwise if the intervening action was in the ordinary course of things the very kind of thing likely to happen as a result of the defendant's negligence. In Dorset Yacht [Co v Home Office [1970] AC 1004], Lord Reid observed [(at p 1030)]: "But if the intervening action was likely to happen I do not think that it can matter whether that action was innocent or tortious or criminal. Unfortunately, tortious or criminal action by a third party is often the 'very kind of thing' which is likely to happen as a result of the wrongful or careless act of the defendant." Much the same approach was adopted by this Court in Caterson [ infra ] where Gibbs J (with whom Barwick CJ, Menzies and Stephen JJ agreed) pointed out [(at p 110)] that, if the plaintiff's action in jumping from the train was, in the ordinary course of things, the very kind of thing likely to happen as a result of the defendant's negligence and was not unreasonable, the jury was entitled to find that the plaintiff's injuries were caused by the defendant's negligence. The finding that the plaintiff's action was not unreasonable was then essential to that conclusion because contributory negligence was a defence in New South Wales at the relevant time ... As a matter of both logic and common sense, it makes no sense to regard the negligence of the plaintiff or a third party as a superseding cause or novus actus interveniens when the defendant's wrongful conduct has generated the very risk of injury resulting from the negligence of the plaintiff or a third party and that injury occurs in the ordinary course of things. In such a situation, the defendant's negligence satisfies the "but for" test and is properly to be regarded as a cause of the consequence because there is no reason in common sense, logic or policy for refusing to so regard it. In no sense here could the decision of the plaintiff to climb the gate be regarded as in the ordinary course of things the very kind of thing likely to happen as a result of the defendant's negligence. Civil Liability Act 2002 22The above discussion does not materially differ from that which would be engaged by ss 5B, 5C, 5D and 5G of this Act. 23In my view, the risk that someone in the position of the plaintiff might attempt to climb the gate rather than obtain assistance to open it was not foreseeable in the relevant sense, the risk that such a person might attempt to climb the fence was inconsequential and, whilst a reasonable person in the position of the defendant might well have warned patrons about the locking of the gate, this would have been a mere courtesy as a precaution against inconvenience and not as a precaution against the risk that an attempt might be made to climb the fence. The probability that someone in the position of the plaintiff might climb the gate rather than seek assistance to open it in the absence of being informed before he left the clubhouse that the gate was locked was so slight as to be negligible, the failure to warn or place an intercom at the gate would have given rise to the likelihood of an inconvenient walk back to the clubhouse but would not have led a reasonable person to apprehend that a patron such as the plaintiff might attempt to climb the fence, the cost of warning was trivial and the expense of provision of an intercom is to be contrasted with inconvenience, not the potential injuries from a failure to successfully climb the gate. No question of social utility arises. 24It is not necessary further to discuss the application of the principles of causation as provided in s 5D. 25So far as s 5G is concerned, it is inevitable that the plaintiff must be presumed to have been aware of the risk of slipping and falling as he attempted to climb the gate. There is nothing alleged in the amended statement of claim that could give rise to the possibility that he was unaware of this risk. Warning is immaterial. At all events, the gate was, by its very construction, a warning that any attempt to climb it was dangerous. 26I should mention the terms of s 5S, providing that a court may determine contributory negligence at 100% and thus the claim be defeated. In this case, the plaintiff's injuries must be regarded as entirely resulting from his own foolish decision to climb the gate, an action which would have been obviously dangerous even in daylight but which must have been even more obvious at night and in the rain. Conclusion 27The plaintiff's action is doomed to fail. It is "so obviously untenable that it cannot possibly succeed": General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. In the language of UCPR r 14.28 there is "no reasonable cause of action" disclosed. Accordingly, the statement of claim is dismissed with costs. ********** 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. Decision last updated: 10 February 2011