DUTY OF CARE AND THE CIVIL LIABILITY ACT 2002 (NSW)

RECENT CASES


Presented by Scott Holmes and Manal Hamdan
17 May 2012




NOVAKOVIC v STEKOVIC [2012] NSWCA 54
JOVANOVSKI v BILLBERGIA PTY LIMITED [2011] NSWCA 135
STRONG v WOOLWORTHS LIMITED [2012] HCA 5
LAOULACH v IBRAHIM [2011] NSWCA 402
TURJMAN v STONEWALL HOTEL PTY LTD [2011] NSWCA 392

www.holmanwebb.com.au



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1. NOVAKOVIC V STEKOVIC [2012] NSWCA 54
1.1 Facts
(a) The Respondents, Mr and Mrs Stekovic, were the brother and sister-in-law of
the Appellant, Ms Novakovic.
(b) Mr and Mrs Stekovic owned and occupied the premises (the Premises) where
Ms Novakovic slipped. They were also the owner of a bull mastiff/kelpie dog
called Cougar (the Dog).
(c) As at 19 January 2008, Mr and Mrs Stekovic had lived at the Premises for a
couple of years, during which time Ms Novakovic had visited fortnightly. The
Dog was usually kept in the backyard of the Premises, although Ms Novakovic
was aware that approximately one week before 19 January 2008, there had
been a break-in at the Premises and Mr and Mrs Stekovic had brought the Dog
back to the house to protect it.
(d) Ms Novakovic had a general fear of dogs. There was no evidence that Mr and
Mrs Stekovic were aware of her fear.
(e) On 19 January 2008 Ms Novakovic, accompanied by three females, one of
which was a child, visited the Premises on invitation from Mr and Mrs Stekovic.
Mrs Stekovic opened the door and they all entered the Premises. When they
entered the Premises the Dog was in the lounge. Ms Novakovic had not been
told the Dog was in the house. Ms Novakovic had never seen the Dog in the
house before.
(f) The three other friends ran to the other side of the lounge, leaving
Ms Novakovic isolated. The Dog stood up and moved towards Ms Novakovic, it
did not bark or run.
(g) Ms Novakovic went to the front door of the Premises and left, closing the screen
door behind her. As Ms Novakovic closed the door, she slipped on the tiled
patio floor and fell, injuring herself (the Accident). The whole incident took 2 or
3 seconds.
1.2 The Legislation
(a) The relevant principles are those contained in Section 5B of the Civil Liability
Act 2002 (NSW) (CLA), which provides as follows:
Duty of Care
5B General principles
(1) 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




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(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the persons
position would have taken those precautions.
(2) 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.
1.3 The District Court Judgment
(a) Ms Novakovic initially framed her case on the patio floor having been too
slippery, however, there was a joint experts report that the tiles on the patio
floor afforded adequate slip resistance for normal circumstances. The most
significant factor was Ms Novakovics reaction to the Dog.
(b) Ms Novakovic submitted that the Court should consider whether the Accident
was foreseeable and if so, then find that Mr and Mrs Stekovic had a duty of care
to take reasonable precautions to restrain the Dog to ensure it did not move
towards Ms Novakovic and cause her to retreat rapidly. Ms Novakovic
submitted that what occurred was not far fetched and it could have been
anticipated that she would have left the Premises quickly and slipped as she
was doing so.
(c) Ms Novakovic also submitted that the Judge should find that she was in a class
of persons who were scared of dogs who might be expected to visit the
Premises and react as she did, and that it was reasonable for her to bid a hasty
retreat . . . upon seeing a dog of that nature with her knowledge of it.
(d) Mr and Mrs Stekovic submitted that it was not reasonable for them to expect
Ms Novakovics reaction. They submitted that Ms Novakovic could have
reacted in other, reasonable, ways such as by asking Mr and Mrs Stekovic to do
something about the Dog, or move away in a slow and safe manner given the
distance between her and the Dog and the fact it was not moving aggressively.
(e) On 20 April 2011 Knox DCJ found in favour of Mr and Mrs Stekovic. His Honour
found that what occurred was not foreseeable, nor was the risk of the events
occurring foreseeable. Moreover, the risk of the harm occurring was
insignificant. Further, that Mr and Mrs Stekovic neither could, nor should have,
anticipated Ms Novakovics reaction, even if they had considered the position of
a person invited to the Premises who was afraid of dogs. His Honour found




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that it could not have been anticipated that a person in the position of
Ms Novakovic would react in the way she did and then slip and fall when she left
the Premises. It was not reasonable for Mr and Mrs Stekovic to have taken
precautions against the risk of harm having regard to the factors set out in
Section 5B(2)(a) of the CLA.
1.4 On Appeal
(a) On Appeal Ms Novakovic submitted that the primary Judge had erred in the
following three respects:
(i) failing to determine whether the Dog represented a danger in respect of
which it was foreseeable and reasonable for Ms Novakovic to take
urgent evasive action;
(ii) finding that Mr and Mrs Stekovic neither could, nor should have
anticipated an urgent attempted departure because the risk was
insignificant;
(iii) finding that it was not reasonable to expect Mr and Mrs Stekovic to
remove the Dog from the house before inviting the entry of
Ms Novakovic.
(b) Ms Novakovic submitted that Mr and Mrs Stekovic knew, or ought to have
known, that there was a foreseeable risk that an entrant to the house, with the
knowledge that the Dog was a dangerous dog, would, upon seeing the Dog in
the house, fear it and run from the house in panic and could be injured in the
course of flight. Ms Novakovic further contended that the risk was not
insignificant and that a reasonable person in the position of Mr and Mrs
Stekovic would have taken the simple precaution of keeping the dog outside.
(c) Ms Novakovic accepted that her reaction to seeing the Dog was not because of
anything the Dog did, but was because of her fear of dogs and she contended it
was also because of what she had been told about the Dog prior to the
Accident. She accepted that her panicked reaction was not rational.
(d) Mr and Mrs Stekovic submitted that the primary Judge did not err. They
emphasised that His Honour found the Accident was caused by Ms Novakovics
sudden exit from the Premises. They contended that Ms Novakovics complaint
that the primary Judge failed to find that the Dog was dangerous was
misconceived in light of the evidence that Ms Novakovic had a morbid fear of
dogs and avoided any contact with them.
(e) Mr and Mrs Stekovic submitted that Ms Novakovics analysis of what happened
was retrospective and was not supported by the objective circumstances. They
submitted that on a prospective analysis, there was nothing in the evidence that
suggested the Dog was dangerous or that Ms Novakovic believed that she was
encountering a dangerous dog on the day of the Accident. They pointed out
that the Dog had not reacted in an aggressive manner when Ms Novakovic
entered the house.




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(f) Mr and Mrs Stekovic contended that the fact that the precautions that could
have been taken were simple did not mean that they were a reasonable
response in the circumstances. Mr and Mrs Stekovic submitted His Honour
Knox DCJ was correct in finding that Ms Novakovics reaction was
unreasonable and unforeseeable.
(g) McColl JA, with Whealy JA and Tobias JA agreeing, confirmed that as occupiers
of the Premises, Mr and Mrs Stekovic owed Ms Novakovic a duty to take
reasonable care to prevent injury to her on the assumption she was using
reasonable care for her own safety. What was reasonable turned on the
circumstances of Ms Novakovics entry upon the Premises. The duty to take
reasonable care required Mr and Mrs Stekovic to protect Ms Novakovic, or the
class of person of which she was a member, from a not insignificant risk which
could reasonably be foreseen and avoided. The measure of the discharge of
duty was what a reasonable would, in the circumstances, do by way of response
to the foreseeable risk.
(h) The Court of Appeal confirmed that whether Mr and Mrs Stekovic ought to have
taken precautions turned upon the foreseeability of the risk, whether the risk
was not insignificant and whether in the circumstances, a reasonable person in
Mr and Mrs Stekovics position would have taken those precautions. The
inquiry must be answered prospectively, before the Accident occurred, not in
hindsight.
(i) The Court of Appeal held that the inquiry was not confined to what could have
been done to eliminate or reduce the risk, but that it was necessary to ask
whether it would have been reasonable for Mr and Mrs Stekovic to take those
measures. The knowledge of how Ms Novakovic came to be injured had to be
excluded when considering whether Mr and Mrs Stekovic were obliged to take
any precautions in the circumstances of having the Dog in the Premises to
which Mr and Mrs Stekovic were invited.
(j) The Court of Appeal pointed out that a person does not breach his or her duty of
care merely because there are steps that he or she could have taken to avert
the risk that actually materialised.
(k) Sections 5B(1)(a) and (b) of the CLA required consideration of whether the
presence of the Dog in the house posed a foreseeable and not insignificant risk
in the circumstances. It was only necessary to consider what a reasonable
person would have done by way of response to the risk if Section 5B(1)(a) and
(b) were satisfied.
(l) The Court of Appeal noted that there was no evidence from Ms Novakovic that
she feared the Dog because it had been described to her as dangerous. It
was Ms Novakovics evidence at trial that she did not like dogs in general and
would take steps to avoid any dog. The Court of Appeal noted that there was
no evidence that Mr and Mrs Stekovic were aware of that tendency.
(m) The Court of Appeal stated that approaching the Accident prospectively, it was
significant that Mr and Mrs Stekovic were prepared to allow Ms Novakovic and
the other attendees to enter the house while the Dog was in the lounge. The




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Court of Appeal found that it might be inferred that Mr and Mrs Stekovic were of
the view that the Dog posed no risk to entrants in such a situation. The
inference was borne out by the fact that the Dog did not act aggressively to
Ms Novakovic before she fled.
(n) The Court of Appeal did not accept that Mr and Mrs Stekovic ought to have
foreseen that an entrant might have a general fear of dogs, or, confining the
inquiry to Ms Novakovic, that they ought reasonably to have foreseen her
reaction.
(o) The Court of Appeal held that the primary Judge was entitled to conclude in the
circumstances that it was not incumbent on Mr and Mrs Stekovic to foresee that
there was a risk that Ms Novakovic would, upon seeing the Dog in the house,
fear it and run from the house in panic. The Court of Appeal found that the
Appellants submissions appear to be shaped more through the prism of
hindsight than foresight.
(p) As the requirements of Sections 5B(1)(a) and (b) were not satisfied, it was not
necessary to consider Section 5B(1)(c), namely, whether a reasonable person
in the position of Mr and Mrs Stekovic would have taken precautions to guard
against a foreseeable and not insignificant risk.
1.5 Discussion
(a) The decision demonstrates the fact that if a risk was not foreseeable and was
not insignificant, there is no need to consider whether a reasonable person
would have taken precautions in the circumstances.
(b) Just because it is apparent that action could have been taken to avert the risk, it
does not necessarily follow that the duty of care owed in the circumstances had
been breached.
(c) Consideration of whether a risk was foreseeable and not insignificant has to be
viewed prospectively from at the time that the precautions ought to have been
taken, not with the benefit of hindsight once the circumstances of the incident in
question have unfolded.
2. JOVANOVSKI V BILLBERGIA PTY LIMITED [2011] NSWCA 135
2.1 Facts
(a) The Respondent, Billbergia Pty Limited (the Respondent), was engaged in a
building project at Meadowbank in Sydney (the Site). There were major
excavation works being conducted at the Site.
(b) Mr Jovanovski (the Appellant) was one of 3 drivers who drove trucks owned by
the Respondent. There were up to 10 other drivers and trucks engaged by the
Respondent. There were up to 15 trucks at the Site on some occasions. Apart
from truck drivers, there were also operators of excavators, backhoes and a
bobcat. There were also other staff on Site such as labourers and builders.




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The project at the Site was a large project involving the construction of about
680 home units.
(c) The Appellant was unfortunately not a popular man on the Site. In either
November or December 2003 he was involved in an incident with another driver
called Mr Ricky Denton. Mr Denton asked the Appellant to swap a cartage
allocation and when the Appellant refused, Mr Denton punched him in the face.
The Appellant reported the incident to the foreman on the Site, Mr Brendan
Cronin.
(d) Mr Cronin later provided a statement to an insurance investigator in which he
described the Appellant as having a reputation as being very short tempered
and abrupt in his manner and unpopular with other Site staff. Mr Cronin also
stated that the Appellant complained on a regular basis about minor matters that
no other drivers complained about.
(e) On a day early in February 2004, the Appellant went to open the door of his
truck and found that grease had been placed on the door handle. He told
Mr Cronin. A few days, or perhaps a week later, the Appellant found that
grease had been placed on the door handle of his truck again and also on the
steps behind the truck cabin giving access to the top of the truck. About a week
later he found grease smeared in the same locations. He also reported these
occurrences to Mr Cronin.
(f) On 18 February 2004, the Appellant slipped on the steps at the back of his truck
(the Accident). After the fall he found grease on the steps at the back of the
truck. He had checked for grease on the door handle and the steps behind the
truck cabin but not at the back of the truck.
2.2 The Legislation
(a) The relevant principles in assessing whether the Respondent was negligent are
those contained in Section 5D of the CLA which provide as follows:
Causation
5D General principles
(1) 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
persons liability to extend to the harm so caused (scope
of liability).
(2) In determining in an exceptional case, in accordance with
established principles, whether negligence that cannot be
established as a necessary condition of the occurrence of harm




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should be accepted as establishing factual causation, 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.
(3) If it is relevant to the determination of factual causation to
determine what the person who suffered harm would have done
if the negligent person had not been negligent:
(a) the matter is to be determined subjectively in the light of
all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the
harm about what he or she would have done is
inadmissible except to the extent (if any) that the
statement is against his or her interest.
(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.
2.3 The District Court Judgment
(a) On 31 March 2010 His Honour Davies J found that the Respondent owed to the
Appellant the duty of care that would have been owed to him as an employee,
involving providing a safe system of work including proper supervision of other
persons on the Site for whose behaviour the Respondent was responsible.
(b) It was held that because of the complaints of grease being placed on the door
handle and steps of the truck earlier in 2004, the Respondent should have
warned all others working on the Site that if they were caught putting grease on
any persons truck, they would be dismissed. This could have been done by a
written notice posted at the Site or at a toolbox meeting where everyone was
called together. His Honour held that Mr Denton should have been specifically
warned. The Respondent did not provide any warnings of the nature described
by His Honour. Accordingly, the Respondent had breached its duty of care to
the Appellant.
(c) His Honour then considered the issue of causation, having regard to the
principles in Section 5D of the CLA. His Honour made particular reference to
Adeels Palace Pty Limited v Moubarak [2009] HCA 48; (2009) 239 CLR 420,
that the Appellant does not succeed merely by showing that particular conduct
might have deterred or prevented the harm. His Honour stated that Adeels
Palace made it clear that the breach of duty by the Respondent could not be
regarded as a necessary condition of the occurrence of the harm for the
purposes of Section 5D of the CLA. His Honour held that the matter can be put
no higher than the appropriate warning might have deterred or prevented the
occurrence which caused the injury to the Plaintiff.




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(d) His Honour found that he could not be satisfied on the balance of probabilities
that a warning coupled with a threat of dismissal would have been more likely
than not to have deterred the perpetrator from further acts of grease smearing.
His Honour had regard to the amount and nature of other persons on the Site
and the fact that the majority of drivers were not direct employees of the
Respondent, and dismissal from the Site would not have had the same
implications for subcontractors as it would have done for employees.
(e) Factual causation was not established and His Honour found in favour of the
Defendant (the Respondent).
2.4 On Appeal
(a) On 2 June 2011 the NSW Court of Appeal dismissed the appeal.
(b) The Appellant did not submit that the case was an exceptional case to which
Section 5D(2) of the CLA applied, whereby factual causation should have been
found even though the Respondents negligence was not established as a
necessary condition of the occurrence of harm.
(c) The Appellant submitted that the trial judge should have found that it was more
probable than not that, had the warning been given, the grease smearing which
caused the Accident would not have occurred.
(d) The Appellant accepted that it could not properly be submitted that Mr Denton
was the likely perpetrator, but he urged upon the Court the deterrent effect of a
warning, by notice or at a toolbox meeting, pointing out the risk of injury from
smearing grease on the truck and the perpetrators possible exposure to
criminal liability and certainty of instant dismissal.
(e) The Appellant submitted that there was no reason to believe that the perpetrator
intended to injure the Appellant or was more than a prankster and that persons
on the Site would have been grown-ups who could be expected to act
rationally.
(f) Giles JA, with Hodgson JA and MacFarlan JA agreeing, found that the risk of
injury to the Appellant from grease on the steps was plain and it was difficult to
accept that whoever applied the grease was a mere prankster, or was unaware
of the seriousness of what he or she was doing. The Appellants unpopularity
was not limited to Mr Denton or the excavator operators. A number of persons
on the Site could have been determined to apply grease to the truck. That class
of persons was left open-ended on the evidence and contained members over
which the Respondent had a varying degree of sway over.
(g) The Court of Appeal held that in light of the series of applications of grease in
2004, the perpetrator had departed from fully rational conduct and was intent
on something of a campaign against the Appellant. The Court considered that
it was likely that the perpetrator already appreciated his or her exposure to
criminal liability and to dismissal from his employment if discovered.




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(h) Although a warning may have deterred the person from the last application of
grease, this would have depended on the persons resolve and the likelihood of
discovery. The Court considered the resolve appeared to have been firm and
there were opportunities for application of grease without discovery. It was not
enough that the warning might have deterred the person.
(i) The Respondent submitted that the grease that had been applied to the steps at
the back of the truck could have been applied early in February, so that even if a
warning had been given after the second or third grease application, it would not
have prevented the Accident. In light of the Courts finding that it was not
enough that a warning might have deterred the perpetrator from applying grease
to the truck, it was not necessary for the Court to decide this issue.
(j) The Court of Appeal agreed with His Honour Davies Js conclusion as to
causation and the appeal was dismissed. Section 5D(1)(a) CLA was not
satisfied. Factual causation was not established.
(k) The most that could be said about an appropriate warning was that it might have
prevented the perpetrator from applying the grease which caused the Accident.
Section 5D(1)(a) of the CLA required the Appellant to establish, on the balance
of probabilities, that the negligence of the Respondent was a necessary
condition of the occurrence of the harm. The range of possibilities as to who
applied the grease and when, and the effect any warning would have had, had it
been made, could not lead the Court to make such a finding on the balance of
probabilities.
2.5 Discussion
(a) The decision demonstrates that although a duty owed may have been
breached, Section 5D(1)(a) of the CLA requires that the breach must be a
necessary condition of the occurrence of harm. It highlights the principle in
Adeels Palace that the Appellant does not succeed merely by showing that
particular conduct might have deterred or prevented the harm. (emphasis
added)
(b) Although a preventative measure might have prevented the cause of a particular
incident, it must be found that, having regard to the particular circumstances, the
preventative measure would, on the balance of probabilities, have prevented the
cause of that incident. A mere possibility is insufficient.
3. STRONG V WOOLWORTHS LIMITED [2012] HCA 5
3.1 Facts
(a) At around 12:30pm on 24 September 2004, Kathryn Strong (Strong), who
required the use of crutches to walk, was shopping in a sidewalk area (the
Sidewalk) near a food court in a shopping centre (the Premises) for which
Woolworths Limited (Woolworths) was responsible, when she moved to her
right to inspect a pot plant causing the tip of her crutch to come into contact with
a chip, or grease deposited by the chip, causing the crutch to slip from under
her and for her to fall (the Accident).




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(b) A company called CPT had a contract with a cleaning services company which
included an obligation to ensure floors are to be free of any rubbish or
spillages, however, the area for which it was responsible did not include the
Sidewalk. That company retained a second cleaner between 11:00 a.m. and
2:00 p.m. i.e. the lunchtime period.
(c) Woolworths employed a person as a people greeter. That person was required
to stand in the entrance of Woolworths Big W store. It was part of her duties to
keep an eye out for spillages in the Sidewalk area. Woolworths did not have a
periodic system of inspection and cleaning in place on the day of the Accident.
3.2 The legislation
(a) The relevant principles in assessing whether Woolworths was negligent are
those contained in Section 5D of the CLA which provide as follows:
Causation
5D General principles
(1) 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
persons liability to extend to the harm so caused (scope
of liability).
(2) In determining in an exceptional case, in accordance with
established principles, whether negligence that cannot be
established as a necessary condition of the occurrence of harm
should be accepted as establishing factual causation, 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.
(3) If it is relevant to the determination of factual causation to
determine what the person who suffered harm would have done
if the negligent person had not been negligent:
(a) the matter is to be determined subjectively in the light of
all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the
harm about what he or she would have done is
inadmissible except to the extent (if any) that the
statement is against his or her interest.




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(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.
3.3 District Court Judgment
(a) Strong alleged that Woolworths was negligent in failing to institute and maintain
a cleaning system to detect spillages and foreign objects. The Trial Judge,
Robison J, held that Woolworths was the occupier of the Premises and owed a
duty of care to persons coming within it.
(b) The District Court Trial Judge found in favour of Strong, the essence of his
reasoning being if other people could see [the grease marks] apart from the
Plaintiff after the event, then it begs a serious question as to why it was not seen
by an employee of [Woolworths] in those particular circumstances and it should
have been removed either by [Woolworths] or [Woolworths] alerting a cleaner to
remove it which was entirely open to [Woolworths] to do and if that had been
done the [Plaintiff] simply would not have come to grief. I can put it no more
simply than that. So therefore [Woolworths] is guilty of negligence.
3.4 The Court of Appeal Judgment
(a) Although the Court of Appeal noted that the District Court Judge had not
addressed either the issues of breach of duty or causation, Woolworths did not
challenge the finding that it was negligent, the sole ground of the Appeal was
whether Woolworths negligence was a cause of the Accident.
(b) The Court of Appeal found that proof of negligence did not of itself make it likely
that had Woolworths not been negligent, the Accident would not have occurred.
All that reasonable care required was periodic inspection and cleaning. This
conclusion gave rise to the possibility that, even if periodical inspections and
cleaning had been carried out, with the minimum frequency required , the chip
fell between the last such inspection and the time [Strong] encountered it.
(c) The Court of Appeal approached the matter on the basis that reasonable care
required periodic inspection and cleaning of the area at 15 minute intervals.
The Court of Appeal found on the facts that there was no basis for concluding
that the chip had been on the ground for long enough for it to be detected and
removed by the operation of a reasonable system of inspection and cleaning.
(d) It was held that in the absence of evidence supporting an inference that the chip
had been there for some time, such that the chip was dirty or cold to touch,
there was no basis for concluding that it was more likely than not that it had not
been dropped shortly before the Accident.
(e) The Court of Appeal noted that the Sidewalk was very close to the food court
and that the Accident occurred at lunch time. The fact that a second cleaner
was engaged between the hours of 11:00am to 2:00pm provided a basis for an
inference that there was an increased risk of things being dropped in the area of
the food court during that time period. In light of this, the Court of Appeal held




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that it could not be concluded that it was more likely than not that, had there
been a dedicated system of cleaning and inspection of the location of the
Accident at 15 minute intervals, the Accident would not have occurred.
(f) The Court of Appeal found in favour of Woolworths. The Appeal was allowed.
3.5 The High Court Decision
(a) The majority of French CJ, Gummow, Crennan and Bell JJ observed that the
Court of Appeal correctly held that causation is to be determined by reference to
the statutory test in Section 5D of the CLA. The question for consideration was
whether, as required by Section 5D(1)(a) of the CLA, Woolworths negligence
was a necessary condition of the occurrence of the Accident.
(b) The majority of the High Court rejected Woolworths submission that it was
necessary for Strong to point to some evidence permitting an inference to be
drawn concerning when the chip was deposited. It held it was for the Strong to
prove that it was more probable than not that Woolworths negligence was a
necessary condition of the Accident, but this onus could be discharged by
consideration of the probabilities in circumstances in which the evidence did not
establish when the chip was deposited. The Court of Appeal had rejected this
reasoning because it found the deposit of the chip on the floor was not a hazard
with an approximate equal likelihood of occurrence throughout the day based on
3 factors:
(i) chips are a type of food some people eat for lunch;
(ii) the Accident occurred at lunchtime; and
(iii) the fact a second cleaner was engaged between 11am and 2pm was
suggestive of an increased risk of things being dropped during that
period.
(c) The majority of the High Court rejected the engagement of a second cleaner as
support for a conclusion that the probabilities were against the chip being
deposited before 12:15pm, i.e. 15 minutes prior to the Accident. It was also
held that there was no basis for concluding that chips are more likely to be
eaten for lunch than in the morning. The conclusion that the chip had been
deposited at a particular time rather than any other time was speculation.
(d) The majority of the High Court held the evidence did not permit a finding of
when between 8am and 12:30pm the chip came to be deposited. The Court of
Appeal erred in holding it could not be concluded that the chip had been on the
ground for long enough for it to be detected and removed by the operation of a
reasonable cleaning system. The probabilities favoured the conclusion that the
chip was deposited in a 4 hour 10 minute period prior to when an inspection
ought reasonably to have been conducted as opposed to the 20 minute period
immediately prior to the Accident.
(e) The High Court allowed the appeal, finding in favour of Strong.




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(f) Heydon J, dissenting, pointed out that it was for Strong to prove that the chip
was deposited before 12:15pm on the balance of probabilities. The balance of
probabilities is not a mere weighing exercise of two probabilities, there must
also be a belief of the reality of the fact i.e. the Court must be actually
persuaded or reasonably satisfied of that fact. Heydon J did not subjectively
believe that the chip was deposited before 12:15pm and therefore held that
Woolworths must succeed.
3.6 Discussion
(a) In many cases the reality is that the duration for which a deposit or spillage has
been allowed to remain on a floor surface is not known. It is often the case that
the fact that the deposit or spillage was not previously observed by anyone is
what led to the circumstances eventuating in the basis of the claim.
(b) Although there may be no direct evidence as to the duration for which a deposit
or spillage has been allowed to remain on a floor surface, there may be
circumstantial evidence available in that regard. In Strong v Woolworths such
evidence could have been the temperature or appearance of the chip. If
available, such evidence may lead a Court to find that it was more probable that
a deposit or spillage occurred at one time rather than another. In the absence
of such evidence, the timing of the occurrence of the deposit or spillage may
have an approximately equal likelihood of occurrence throughout the day. An
assessment of probabilities as to when the deposit or spillage occurred will be
conducted. As in Strong v Woolworths, the time outside the scope of a
reasonable system of cleaning and inspection may be far greater than the time
within it, leading to a finding that, on the balance of probabilities, the deposit or
spillage occurred at a time prior to when the last inspection ought reasonably to
have been conducted prior to the incident, thereby rendering the failure to
inspect and clean to be causative of the incident in question.
(c) In Strong v Woolworths the High Court rejected as speculation the conclusion
the chip had been deposited at a particular time rather than any other time on
the day of the Accident, however, in another case, such a finding may not be
mere speculation. For example, where a nearby caf sells hot breakfast items
only up until 11am and one of those breakfast items is subsequently the cause
of a slip, it may be open to infer that the item had been there since no later than
shortly after 11am.
(d) Every case will turn on its own facts and circumstances but the decision of
Strong v Woolworths demonstrates the approach a Court will adopt in
circumstances where there is no evidence as to when a deposit or spillage of a
slippery substance occurred.
(e) The balance of probabilities is the standard of proof in civil proceedings set out
in Section 140(1) of the Evidence Act 1995. The dissenting minority judgment
of Heydon J further illustrates the long established principle as highlighted by
Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 that
while a mechanical balance of the probabilities may favour one finding, the
Court must also be actually persuaded or reasonably satisfied of it.




15
4. LAOULACH V IBRAHIM [2011] NSWCA 402
4.1 Facts
(a) The Appellant, Robert Laoulach (Appellant), was a passenger on board a
Mustang Sports Cruiser which was moored off Brighton-le-Sands in Botany Bay.
He was looking to purchase the vessel from the owner, Mr El Khoury.
(b) The Appellant arranged a test drive of the vessel and the owner asked that he
ensure that licensed boat drivers operated the vessel during the test drive. The
Appellant organised some associates of his, Danny and Mickey, to drive the
vessel during the test drive and he along with Danny, Mickey, his brothers and
cousin commenced the test drive on that day.
(c) At approximately 1.30pm they arrived at Brighton-le-Sands and moored the
vessel about 40 metres from the shore line. The weather was fine and they
commenced diving off the boat into the water.
(d) At one stage, one of the persons on the vessel hit his shoulder diving into the
water as it was becoming shallower, so they decided to move the position of the
vessel to allow everybody to keep diving and swimming safely.
(e) The vessel was then moved some 15 to 20 metres further out to sea. The water
at this stage was a dark blue colour and it appeared to be deep enough to safely
dive into.
(f) The Appellants evidence was that he and the other persons on the boat dived
off the bow towards the open ocean and swam to shore.
(g) After returning to the vessel the others dived back into the water and a few
minutes later the Appellant dived into the area which he believed was the same
place that he previously dived. At that stage the wind had picked up so the
visibility of the ocean was not as good however it still seemed dark blue.
(h) The Appellant began to dive and felt his head strike the sand and at the same
instance heard a loud crack. The Appellant suffered severe injuries which
included becoming incomplete C4 tetraplegic (the Accident).
4.2 Legislation
(a) The principles relevant to this judgment included the following sections of the
Civil Liability Act 2002 (NSW) (CLA)
Section 5F - Meaning of Obvious Risk
(1) For the purposes of this Division, an "obvious risk" to a person who
suffers harm is a risk that, in the circumstances, would have been
obvious to a reasonable person in the position of that person.
(2) Obvious risks include risks that are patent or a matter of common
knowledge.




16
(3) A risk of something occurring can be an obvious risk even though it
has a low probability of occurring.
(4) A risk can be an obvious risk even if the risk (or a condition or
circumstance that gives rise to the risk) is not prominent, conspicuous
or physically observable.
Section 5H - No proactive duty to warn of obvious risk
(1) A person (the defendant) does not owe a duty of care to another
person (the plaintiff) to warn of an obvious risk to the plaintiff.
(2) This section does not apply if:
(a) the plaintiff has requested advice or information about the risk
from the defendant, or
(b) the defendant is required by a written law to warn the plaintiff of
the risk, or
(c) the defendant is a professional and the risk is a risk of the
death of or personal injury to the plaintiff from the provision of a
professional service by the defendant.
(3) Subsection (2) does not give rise to a presumption of a duty to warn of
a risk in the circumstances referred to in that subsection.
Section 5K meaning of Dangerous Recreational Activity
"dangerous recreational activity" means a recreational activity that involves a
significant risk of physical harm.
Section 5L No liability for harm suffered from obvious risks of
dangerous recreational activities
(1) A person (the defendant) is not liable in negligence for harm suffered
by another person (the plaintiff) as a result of the materialisation of an
obvious risk of a dangerous recreational activity engaged in by the
plaintiff.
(2) This section applies whether or not the plaintiff was aware of the risk.
4.3 Supreme Court Judgment
(a) The Appellant alleged that his injuries resulted from the negligence of the four
Defendants who included the two operators of the vessel, the owner of the
vessel, and his cousin Charbel Ibrahim.
(b) The Appellant claimed that all relevant times the vessel and those on board
were under the control of the Defendants/Respondents and that he was reliant
on their expertise for safety.




17
(c) Although the Respondents were responsible for moving and anchoring the
vessel in the second anchor position, the His Honour found that neither of them
controlled the Appellants own assessment that the water depth was safe to dive
into. The Respondents by saying thats far enough or thats deep enough
were expressing their own opinion as to the depth of the water. The
Respondents were not creating the risk or encouraging or enticing those on
board into a dangerous situation.
(d) His Honour noted that where the posited duty was novel, it was important to
analyse the nature of the relationship between the Appellant and the person
whom was charged with having breached their duty of care, as observed by
Justice Simpson in Caltex Refineries (QLD) Pty Ltd v Stavar [2009] NSWCA
258. These salient features to be measured, included, among other things:
(i) the forseeability of harm;
(ii) the nature of the alleged harm;
(iii) the degree and nature of control able to be exercised by the defendant to
avoid harm;
(iv) the degree of vulnerability of the plaintiff to harm from the defendants
conduct, including the capacity and reasonable expectation of a plaintiff
to take steps to protect itself; and
(v) the degree of reliance by the plaintiff upon the defendant.
(e) His Honour found that whilst the Respondents had a boating licence and had
control of the vessel, their boating experience was limited and they had no
experience in measuring the depth of water. Despite that fact that the
Respondents were responsible for driving and anchoring the vessel, no one on
board expressed their reliance on their opinion as to whether it was safe to dive
and all on board were able to exercise reasonable care, as adults, to visually
assess the safety of the water level.
(f) The Trial Judge did nevertheless find that the relationship between the
Respondents and the Appellant gave rise to a duty of care as operators of the
vessel between the first and second anchor points, they owed a duty to those on
board an obligation to exercise reasonable care in locating that position and
then ensuring that the vessel was not brought back by winds or currents. The
scope of this duty was, however, measured against by the Appellant exercising
reasonable care for his own safety.
(g) On 16 September 2010, Justice Price entered a Verdict and Judgment against
the Appellant in favour of the Defendants/Respondents.
4.4 The Appeal
(a) The appeal brought in 2011 was on the issue of liability and the Respondents
were Danny and Mickey, the drivers of the vessel. The Appellant alleged that
the Respondents were in breach of their duty of care to him, by failing to take




18
reasonable care to ensure that the vessel was anchored and remained in a
location where the water was deep enough to enable the Appellant to dive from
it safely.
(b) Alternatively, it was alleged that the Respondents were in breach of their duty of
care by failing to warn the Appellant of the risk of injury if he dived off the vessel
and the water depth was inadequate to enable him to do so safely. In their
Defences, the Respondents pleaded that the risk of injury from diving from the
vessel was obvious in terms of section 5F(1) of the Civil Liability Act 2002
(NSW) (CLA) and that by reason of section 5H(1), they did not owe him a duty
of care to warn him of that risk.
(c) The Respondents further pleaded that in diving from the vessel the Appellant
was undertaking a dangerous recreational activity as defined by section 5K of
the CLA and that they were not liable for the harm suffered by him caused by
the materialisation of an obvious risk, section 5L(1) of the CLA.
The existence of a duty of care
(a) It was contended by the Appellant that a person who operates a vessel has a
duty to all those on board and those in the near vicinity to exercise reasonable
care in the vessels management and operation. The scope of the duty was
defined by the Appellant by the specific purpose communicated to all on board,
of moving the vessel to a position where the water was sufficiently deep to
enable diving from the vessel to take place safely. At the very least, the
Appellant contended that the scope of the duty was to take reasonable care to
ensure that the position to which the vessel had been moved was safe for diving
and that the position was maintained unless the Respondents advised
otherwise.
(b) On appeal, Justice Tobias agreed with the Trial Judge that on the balance of
probabilities, the Respondents were in control and operation of the vessel at the
times that they each drove it. The issue was whether having moved the vessel
for the sole purpose of finding a position where they considered that the water
was deep enough to dive safely, the Respondents had a duty to exercise
reasonable care to ensure that the vessel did not move backwards towards the
shore into shallower water.
(c) His Honour disagreed with this assertion on the basis that the Respondents did
not continue to exercise some degree of control over the movement of the
vessel or that they had assumed responsibility to take steps to ensure that the
movement of the vessel did not occur once it was anchored at the second
location. Equally His Honour did not see how it could be asserted that the
Appellant was in a position of vulnerability with respect to the Respondents or
either of them. Certainly, the Appellant had the capacity to protect himself and
would be reasonably expected to satisfy himself that the water was of sufficient
depth to dive into safely.
(d) His Honour found that the Respondents owed no duty of care to take
reasonable care to ensure that the vessel did not drift into shallower water and it
was noted that they were not professional operators of a dive boat. They had




19
simply been invited to accompany the Appellant on a test drive on the same
terms as everybody else on the boat. His Honour quoted the following
statement of Justice McHugh in the case of Dovuro Pty Limited v Wilkins [2003]
HCA 51; (2003) 215 CLR 317:
"If negligence law is to serve any useful social purpose, it must ordinarily
reflect the foresight, reactions and conduct of ordinary members of the
community ... To hold defendants to standards of conduct that do not
reflect the common experience of the relevant community can only bring
the law of negligence, and with it the administration of justice, into
disrepute. ..."
Was the risk an obvious risk?
(a) His Honour accepted the finding of the Trial Judge that for the purposes of
section 5B(1)(a) and (b), the risk of harm to the Appellant by diving into water of
uncertain depths was foreseeable and was not insignificant. His Honour also
found that the likely seriousness of harm was undoubtedly grave and that the
burden of taking precautions to avoid the risk of harm was not significant in the
circumstances. It was held that a reasonable response to the risk did not require
a warning to those on board the vessel that there was a likelihood or possibility
that the water depth could change or that there was a risk of diving into a
shallow bank.
(b) His Honour in the first instance held that the Respondents were entitled to act
on the expectation that an adult, would exercise reasonable care for his own
safety before diving. Although the likely seriousness of the harm was grave, the
probability that the harm would occur if care was not taken was low. A
reasonable response to the risk did not require warning to those on board the
vessel that there was a likelihood or possibility that the water depth could
change or that there was a risk of diving into a shallow bank.
(c) The Appellant disagreed with the Trial Judges finding that the risk was an
obvious risk within the meaning of section 5F(1) of the CLA on the following
bases:
(i) The vessel was moved from the first anchor position to the second
anchor position for the sole purpose of ensuring the depth of the water
was such to enable diving to be carried out safely and all on board were
aware of that purpose;
(ii) There was no change in the conditions that the Appellant or any other
person on board had detected once the vessel was anchored at the
second anchor position;
(iii) All who dived from the boat in that position had done so safely including
the Appellant;
(iv) To the Appellants knowledge when he was about to undertake his
second dive there were others in the water in the near vicinity who had




20
dived prior and had, to his observation, dived safely do that there was
nothing to alert the Appellant of any change in the depth of the water.
In the first instance His Honour found that a reasonable person in the position of
the Appellant would have thought that the water was sufficiently deep and safe
to dive into, however they would not have considered that there was no risk of
injury when diving into the water. This could not be compared to, for example,
diving into a swimming pool where there was absolute certainty as to the depth
of the water. A reasonable person in this situation would have concluded that
the risk of harm was low.
(d) Juxtaposing this with section 5F(3) of the CLA, a risk of something occurring
can be an obvious risk even though the probability of that risk is low and in
accordance with section 5F(4) even if that risk is not prominent, conspicuous or
physically observable.
Once the risk existed and was known to the Appellant it fell within the definition
of obvious risk. His Honour maintains that low risk of probability would still be
readily apparent to the reasonable person in the position of the Appellant and it
was apparent to the Appellant himself.
Would a reasonable person in the position of the Respondents have taken
precautions to prevent the risk from materialisation?
(a) His Honour rejected the submission by the Appellant that the Respondents
should have warned the Appellant that they could not be sure that the water was
deep enough to dive in safely. His Honour held that the Appellant was in just as
good a position as the Respondents to judge the depth of the water.
Furthermore, when the vessel was moved to the second anchored position
before he dived in, he visually assessed the depth of the water.
(b) Based on this evidence it was clear that the Appellant was at all times aware of
the risks of diving into the water of unknown depth. His Honour then concluded
that the Respondents warning the Appellant of the potential risk of diving into
the water would not have informed the Appellant of anything that he did not
already know. There was therefore no duty to provide these precautions.
Was the activity a dangerous recreational activity?
(a) The Trial Judge held that the activity was a dangerous recreational activity
within the meaning of section 5K of the CLA as it involved the significant risk of
physical harm. On appeal, His Honour stated that the risk could not be
significant unless there was a real chance of it materialising and this was
assessed on the question of whether there was a real chance of a risk of what
would clearly be significant harm occurring, if the Appellant proceeded with the
dive from the vessel at the time he did. Justice Tobias disagreed with the Trial
Judges finding, on the basis that the correct measure for whether or not the
activity was dangerous was not the potential catastrophic consequences, in line
with the submissions of the Respondents. His Honour did not agree that there
was a real chance of the risk materialising and for these reasons did not define
the activity as a dangerous recreational activity within the meaning of the Act.




21
(b) On 16 December 2011, Justice Tobias held that, although the Appellant was
successful in contesting the question of whether the activity was a dangerous
recreational activity within the meaning of the CLA, the Appellant failed on all
other points and the appeal was dismissed.
Discussion
(a) The Court has upheld that a duty of care will not be found to exist, unless each
of the elements set out in the CLA have been satisfied, including each of the
general principles in section 5B(1).
(b) This finding is useful for insurers, as it clarifies that in novel situations, unless
the claimant can satisfy the court that a reasonable person would have either
provided the necessary warnings or exercised control over the safety of a
situation, a finding of negligence or that a duty has been breached, is unlikely.
(c) Of course, an examination of the facts of each situation will need to be
conducted, to determine whether or not the salient features which would give
rise to a relationship of reliance and a duty would need to take place.
5. TURJMAN V STONEWALL HOTEL PTY LIMITED [2011] NSWCA 392
5.1 Facts
(a) This matter relates to the collapse of the first floor of the Stonewall Hotel in
Oxford Street, Darlinghurst on 24 November 2002.
(b) Some months prior to the collapse, Mr Creighton, a director of Stonewall Hotel
Pty Ltd (Stonewall), wrote to South Sydney Council on 1 May 2002 requesting
a renewal of the establishments place of public entertainment licence (POPE
licence).
(c) On 11 June 2002 an email was sent by Mr Mark Harper to Stonewall and the
Mayor of the Council, Mr John Farrer, which read as follows:
"Dear Stonewall/John,
I would like to bring to your attention an ongoing concern which may or
may not require further action.
My partner and I (architect and landscape architect) having some feeling
for structural/engineering related issues have on a number of occasions
discussed our unease at the "flex" or bounce movement in the floor
boards on the top floor dance level at Stonewall.
We guessed 200 plus people were dancing/jumping up and down on
Sunday 1-2am. I would say that the centre of the room was moving
under weight at a measurable magnitude, and the question would be:
1. Has a structural engineer certified the licence loading for the
purpose of a nightclub.




22
2. If so, should it be regularly reviewed.
3. Has sufficient attention been given to the fact that the building is
old and the materials of construction would be deteriorating over
time - possibly hastened by its current use.
My obvious concern and worry is that the third level of Stonewall is going
to collapse one day.
Mark" (the Harper email)
(d) On 18 June 2002, the Council replied to Mr Creightons request for a renewal of
a licence by requiring that a structural engineer assess the nature and condition
of the building. Specifically, the Council required that a form be submitted by a
structural engineer which states that the premises are structurally sound and
capable of withstanding the loads which arise from the use (particularly
reference is directed to the floor loading/deterioration from dancing/jumping over
the years).
(e) Mr Creighton engaged an engineer, Mr John Byatt, asking that he provide
advice regarding the structural adequacy of the suspended floors at the hotel.
He did not mention the renewal of the POPE licence nor did he read out the
relevant paragraph from the Councils letter, or the Harper email.
(f) Mr Byatt provided a report which stated the floor structures of the first and
second levels were adequate to support the maximum anticipated loading and
that the results of the investigation concerned that the original structural
appraisal which certified the use of the building as a hotel was structurally
adequate to support the anticipated loading. The report did not comment on the
ceilings of the ground and first levels.
(g) In September 2002, the POPE licence was renewed on the basis of Mr Byatts
report and on 24 November 2002, a number of patrons were injured by the
collapse of the first floor ceiling.
5.2 The Legislation
(a) Section 5D of the Civil Liability Act 2002 (NSW) provides general principles in
relation to causation as follows:
(1) 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 persons
liability to extend to the harm so caused (scope of liability).
(2) In determining in an exceptional case, in accordance with established
principles, whether negligence that cannot be established as a




23
necessary condition of the occurrence of harm should be accepted as
establishing factual causation, 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.
(3) If it is relevant to the determination of factual causation to determine
what the person who suffered harm would have done if the negligent
person had not been negligent:
(a) the matter is to be determined subjectively in the light of all
relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about
what he or she would have done is inadmissible except to the
extent (if any) that the statement is against his or her interest.
(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.
5.3 The Primary Judgment
(a) Eight sets of proceedings were brought claiming damages for injuries suffered
as a result of the ceiling collapse. The lead proceedings were brought by Mr
Al Mousawy and the other seven cases were to be determined on liability at the
same time. Proceedings were brought against the owner of the building,
Presdate Pty Limited, the lessee from Presdate who conducted the hotel
business, Stonewall, the engineer whose report had been submitted in support
of the renewal of the POPE licence, J A Byatt Pty Limited (Byatt) and the town
planning consultancy which applied for the renewal of the POPE licence,
Australian Town Planning Consultants Pty Limited.
(b) In the first instance, Justice Hoeben, found that all claims against each of the
Defendants failed. Four of the seven Plaintiffs (Mr Mark Turjman, Mr Corey
Butler, Mr Steven McKenzie and Mr Antonino Tati) (Appellants) appealed
against Stonewall only.
(c) The Primary Judge found that the email by Mr Harper was brought to the
attention of Mr Creighton. However, His Honour did not accept that the Harper
email played such a crucial role in the proceedings and considered that such a
position would be an over reading of the email from Mr Harper.
(d) His Honour found that the specific breach by Stonewall was having retained an
engineer who was not adequately briefed with all of the relevant information.
Notwithstanding this, His Honour said that it was not foreseeable that the ceiling
on the first level might collapse and that the crucial issue was whether
Stonewalls breach made a material contribution to the collapse of that ceiling in
terms of factual causation as set out in section 5D of the CLA.
(e) Byatt in his evidence provided in the primary case stated that he did not know
that the loading to the floors would be dynamic or that the floor had undergone




24
noticeable deflexion whilst in use. He stated in his evidence that had he been
informed of this loading, he would have recommended that a vibration
consultant be engaged to check the implications of any potential resonance
arising from those loads.
(f) I won't go into the claim against Byatt save to say that the Trial Judge held that
the duty of care owed by Byatt did not go beyond a duty to exercise reasonable
care in the investigation and assessment of the structural integrity of the floors
to the extent that he was limited to examining that in his retainer.
5.4 The Appeal
(a) It is long recognised that Stonewall as the occupier held a duty of care to avoid
any foreseeable risks of injury to its patrons. That is, it was obliged to provide
premises that were safe for its patrons (Australian Safeway Stores Pty Limited v
Zaluzna (1987) 162 CLR 479).
(b) The case against Stonewall was on the basis that Stonewall ought to have
conducted a full safety audit of the hotel in light of the email received by Mr
Harper. This would have brought to his attention the defective installation of the
ceiling on the first level and potentially led to the engagement of a vibration
expert to avoid the collapse which ensued.
(c) In the case of Australian Safeway Stores Pty Limited v Zaluzna, referred to
above, the Plaintiff slipped and fell in the foyer of the Defendants supermarket.
The High Court held that retention of the special duties of an occupier to
entrants, was no longer justified and that it was sufficient to determine whether
in the circumstances a duty of care was owed under the ordinary principles of
negligence. In the circumstances of that case, the fact that the Respondent had
lawfully entered the Appellants land established a relationship between them
which did suffice to give rise to a duty to take reasonable care to avoid
foreseeable risk.
Note: The Appellants attempted to appeal on a different basis which I
dont go into for the purposes of this seminar paper, as it was disallowed
by the Appeal Judge. This would have required a different consideration
of duty of care, however the Court maintained that it would give rise to
an injustice if Stonewall were permitted to present a different case on
appeal.
(d) Stonewall at no stage challenged that it was in breach of a duty of care, in failing
to adequately brief its structural engineer with the Harper email and information
as to the activities which took place at the hotel.
(e) The issue therefore became one of factual causation which required a
consideration of section 5D of the CLA. The critical question was whether the
breach of duty by Stonewall materially contributed to the collapse of the ceiling
and thus the injuries sustained by the Appellants.
(f) Determining this would depend on what a competent structural engineer would
have done if armed with all of the relevant correspondence and information from




25
Stonewall in this matter. Quite simply, if on the balance of probabilities, a
competent structural engineer would have investigated the structural integrity of
the ceiling or recommended that other qualified specialists take part in the
assessment process, it would follow that Stonewalls breach of duty materially
contributed to the Appellants injuries or was a necessary condition of the
occurrence in accordance with section 5D of the CLA.
(g) Mr Alden, an engineering expert retained in the proceedings, pointed out that
the Harper email aptly included significant detail which included a suggestion
that the area was being used in a manner not contemplated by the development
approval and that the age of the materials of the building used in its construction
had likely deteriorated over time. In fact his email referred to a possible
collapse of the third level of Stonewall rather than the first.
(h) Referring to the Councils letter which required that the structural engineer
provide that the premises is structurally sound and is capable of withstanding
the loadings, this would appear to refer not merely to the flex or movement of
the floor but to the structural integrity of any part of the premises that might pose
a significant risk to patrons. In fact it would be reasonable to conclude that a
certifier could not certify safety in accordance with the Councils letter without
having taken in to consideration the integrity of the ceilings and the loadings
which the building had to withstand.
(i) The written report provided by Mr Alden specifically considered the Harper email
as suggesting the following:
(i) the approved occupancy capacity of the second floor was being
exceeded;
(ii) the area was being used in a manner not contemplated by the
development approval, in fact it is quite different to those indicated in the
documentation submitted to the Council; and
(iii) the activities might have been causing deterioration to the building.
(j) Had the email been provided to the engineer, Mr Alden thought that it might
have prompted an engineer to recommend the engagement of other specialists
to consider whether damage was being caused to non-structural elements of the
building. It was also considered by Mr Alden that the Councils letter was of
great significance particularly in directing attention to the possible deterioration
resulting from the use of the building.
(k) In light of the correspondence received by Stonewall that the ceiling may
collapse, it was reasonably foreseeable that this may occur.
(l) It was held that had a structural engineer been adequately briefed, the integrity
of the building and the ceiling would have been investigated appropriately and
for this reason Stonewalls breach of duty was a necessary condition of the
occurrence of the harm as intended by section 5D(1)(a).
(m) On 21 December 2011, the appeal was allowed.




26
5.5 Discussion
(a) Although the findings in this case deal substantially with the issue of factual
causation, it highlights the importance of undertaking a factual investigation into
whether or not a breach of a duty materially contributed to the harm;
(b) The case maintains the well established legal principles that an occupier owes a
duty of care to its patrons to avoid any foreseeable risks and to provide a safe
environment. It followed in this case, that although Stonewall breached this duty
of care in failing to provide the necessary information to its engineer, this breach
needed to be assessed closely against the general principles espoused in s5D
of the CLA, namely, whether that omission materially contributed to the risk.
Disclaimer

The contents of this seminar paper are general in nature and should not be relied on as
legal advice. No person should act on the information contained without first consulting
Holman Webb.