Lee Ann Ridgway v Narooma Sport and Game Fishing Club [2013] NSWDC 248

District Court New South Wales

Medium Neutral Citation: Lee Ann Ridgway v Narooma Sport and Game Fishing Club [2013] NSWDC 248 Hearing dates: 16, 17, 18 September 2013 Decision date: 29 October 2013 Before: Judge MJ Finnane QC DCJ Decision: See paragraphs [50] and [51] Catchwords: CIVIL - liability - negligence - no contributory negligence by plaintiff - injury - accident - ongoing pain - indignation suffered from accident Damages - heads of damage - no award for gratuitous care Legislation Cited: Civil Liability Act 2002 Cases Cited: Hill v Forrester [2010] NSWCA 170 Zanner v Zanner [2010] NSWCA 343 Adeels Palace v Moubarak (2009) 239 CLR 420 Calvert v Stollznow [1982] 1 NSWLR 175 Watson v George (1953) 89 CLR 409 Maclenan v Segar 1917 KB 325-33 Category: Principal judgment Parties: Lee Ann Ridgway (Plaintiff) Narooma Sport and Game Fishing Club (Defendant) Representation: JE Rowe (Plaintiff) J Gracie LHD Lawyers (Plaintiff) Colin Biggers & Paisley (Defendant) File Number(s): 2012/266123

Judgment 1The plaintiff sues for damages for personal injury suffered on 11 February 2012

Facts of the accident 2She was injured at about 9pm on 11 February 2012, when she was walking back on a jetty at Narooma. 3She had been attending a function at the Narooma Sport and Game Fishing Club. The club had premises that opened out onto a jetty. Anybody wanting to walk on the jetty who was at the club would first walk out onto a platform and then on to the jetty. There was a gate on the platform, but it was open. At 9pm, there was dim lighting on the jetty. 4The plaintiff and two of her friends wanted to smoke cigarettes. This was not permissible at the function and they left the club, she walked onto the platform and then on to the jetty. The plaintiff gave evidence that she wanted to ensure that any smoke from the cigarettes did not get into the premises during the party and so she decided that they should walk to the end of the jetty where they would smoke their cigarettes. Some distance along the jetty, there was a step down onto a lower level. There was evidence, that I accept, that this step was a heavy piece of marble placed on what appeared to be two wooden supports. The marble was not secured in any way on these supports and merely rested on them. There was no sign warning that the step was loose or insecure. 5The plaintiff and her two friends walked along the jetty under the step and down to the end of the jetty where they had their cigarettes. When she was walking back, she stepped on the marble step and it shifted so that she was flung down onto the deck of the jetty on her right side and then into the water. She said that the step "literally threw me off like a seesaw" (T 16.9.13 p 11 line 42). She suffered bruising along her right side and most significantly fractured her left wrist. As well as this, she suffered shock, and pain along her left side, right up her left arm and along her neck while she was immersed in the water and had her clothes filled with sand. She noticed that her left wrist was displaced while she was in the water and within a few days it was diagnosed as fractured. 6Her body struck the structure of the jetty as she fell. When she was being taken from the water she felt great pain, particularly on her left side and at her left wrist. 7She had been at the party since 6:40pm and in that time had consumed three glasses of champagne in which there were also cut strawberries. As well as this, she had eaten food and had drunk some soft drink. In the 50 minutes or so before she went out onto the jetty, she had not consumed any alcoholic drinks because she was taking photographs. Was the defendant negligent? 8As long ago as 1917 (Maclenan v Segar [1917] KB 325-33, per McCardie J) it was accepted that: "where the occupier of premises agrees for reward that a person shall have the right to enter and use them for a mutually contemplated purpose, the contract between the parties (unless it provides to the contrary) contains an implied warranty that the premises are as safe for that purpose as reasonable care and skill on the part of anyone can make them." (See also Watson v George (1953) 89 CLR 409 at 424 per Fullagar J; Calvert v Stollznow [1982] 1 NSWLR 175 at 177 per Samuels JA). 9Section 5B of the Civil Liability Act 2002 also has application here, since it deals with the duty of care. It is in the following terms: "5B General principles A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and in the circumstances, a reasonable person in the person's position would have taken those precautions. In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm." 10Causation is also dealt with in section 5D of the Civil Liability Act. The relevant parts of the section are in the following terms: A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm ("factual causation"), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ("scope of liability"). ... (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party." 11In Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420, a unanimous bench of the High Court decided that questions of breach of duty must be considered by reference to the provisions of section 5B (p 437 para 27) and that "the first of the two elements identified in section 5D(1) (factual causation) is determined by the "but for" test: but for the negligent act or omission, would the harm have occurred?" (p 440 para 45). See also Zanner v Zanner [2010] NSWCA 343. 12These are the tests I must apply in this case because clearly the Civil Liability Act applies to this case. 13In the present case, the defendant owned the premises at which the party was being held and it can be presumed, hired the premises to the persons who conducted the party. The plaintiff thus entered the premises as a contractual entrant. The defendant made available to those at the party the deck outside the main hall and the jetty adjacent to the deck. The plaintiff, like her companions, lawfully walked on the jetty but the defendant failed to make the premises as safe for the purpose of walking on the jetty as reasonable care and skill could make them. 14The defendant either knew or ought to have known that the step was loose and that anyone walking on the jetty was likely to step on it. It was foreseeable that there was a real risk of injury to someone stepping on that step. That is what the plaintiff did. She did not know that the step was loose. She was given no warning that it was loose. It would have been a simple matter for the defendant to secure the step and it would have been reasonable for it to do so. Equally easily, the defendant could have given a warning that the step was loose. It failed to do so. Any reasonable person in the place of the defendant would have taken steps to secure the step and thus prevent the likely risk of harm occurring to anyone who stepped on it and/ or given an appropriate warning. The defendant did not do anything to secure the step, nor did it give any warning. The Plaintiff suffered injury as a result of stepping on the step. 15But for the failure of the defendant to secure the step or at the least to warn the plaintiff it was loose and dangerous, the accident would not have happened and thus the provisions of sec 5D are satisfied. Contributory negligence 16Section 5R of the Civil Liability Act 2002 is in these terms: "5R Standard of contributory negligence The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time." 17It was suggested by the defendant that the plaintiff's drinking of champagne some time before this accident occurred should cause me to find contributory negligence on the basis that she was under the influence to some extent, but I am not persuaded that this is so. As I have pointed out earlier in this judgment, the unchallenged evidence of the plaintiff was that she ceased drinking champagne 50 minutes or so before she went outside to smoke a cigarette. There was no evidence that she was unsteady on her feet, slurring her words or doing anything suggestive of her being adversely affected by alcohol. 18In my opinion, the defendant has not discharged the onus upon it of establishing contributory negligence on the part of the plaintiff because it has failed to establish in what way the plaintiff was negligent. The evidence does not show that the plaintiff was intoxicated, nor does the evidence show that any intoxication that may have been present contributed in any way to the plaintiff placing her foot on the loose step. 19The defendant has not shown that the manner of the plaintiff's putting of her foot on the step, was in some way negligent. She was clearly entitled to assume that the step was properly secured and it was not. 20The plaintiff is entitled to succeed against the defendant with no discount for contributory negligence.