In this edition
Swings and roundabouts
Supermarkets have been a focus of personal injury litigation over the years, mainly relating to their cleaning systems. However a recent case in the NSW Court of Appeal a supermarket operator challenged a finding that it could be liable for the actions of other customers in its stores.
On a Saturday in February 2005, Ms Tormey was shopping with her 11-year-old daughter at a Coles' supermarket in Gladesville. While she was shopping, Ms Tormey crouched down to pick up an item and was struck in the back by a shopping trolley. This resulted in a “significant” back injury.
The injury was the result of the actions of two unnamed men, described as being in their late 20s or early 30s, who had been “joking around” with the trolley. This involved them essentially flinging one another around the store on the trolley. In the course of one such manoeuvre, Ms Tormey was struck. It seems this was not an isolated incident and Ms Tormey had seen the men behaving in the same way at other times that afternoon prior to the incident.
She brought a claim in negligence against Coles and was successful in the District Court on the basis that Coles had been negligent in not asking the two men to cease their behaviour. Damages of almost $300,000 were awarded. Coles appealed.
Delivering the Court of Appeal’s unanimous judgment, Justice Ipp noted that the District Court judge had found against Coles primarily on the basis that it (via its staff) had actual knowledge of the activities of the two men.
This was based on evidence of two prior “incidents” where Ms Tormey had seen the men “joking around” with the trolley. The first occurred near the delicatessen section of the store and the second in one of the “middle aisles” of the store. She contended that these “incidents” coupled with the noise the men were making was sufficient to alert Coles to the dangers posed by their activity and require it to take steps to prevent injury from that activity by asking them to leave the store.
Accepting Ms Tormey’s evidence of the two “incidents”, Justice Ipp found that Coles must have known about the first “incident”. It had occurred close to and in full view of the delicatessen where at least two employees were working. In relation to the second “incident” however, there was no evidence that Coles’ staff had witnessed it.
Accordingly, Justice Ipp concluded that Ms Tormey had failed to prove that Coles knew of all the activities of the two men. As she had not proven that Coles knew about the second incident, its knowledge of the relevant circumstances was insufficient to give rise to a duty to take reasonable care to avoid a risk of injury arising from those activities. Alternatively, as Ms Tormey did not prove that Coles knew of the second incident, she could not prove that Coles responded inadequately to the risk posed by the men’s activities and, therefore, did not prove that Coles breached its duty of care to her.
As a result, Coles’ appeal was allowed.
Coles Supermarkets Australia Pty Ltd v Tormey [2009] NSWCA 135
Does “negligent prosecution” exist?
It is a well-established principle that police officers owe no duty of care to suspects in the course of conducting a criminal investigation. But once the investigation ends and criminal proceedings are instituted, can police be sued for negligence in the way the prosecution is conducted, particularly in relation to the disclosure of evidence tending to exonerate the accused? A recent decision of the NSW Supreme Court seems to open the door for such actions, although it has not been definitively established as yet.
The plaintiff, Mr Gillett, was a police officer when, in March 2003, he arrested an accused person. Following the arrest, he was the subject of an internal police inquiry in relation to his conduct during this arrest. That resulted in him being charged with offences of assault, conspiracy to pervert the course of justice and making a collusive agreement.
When the matter came on for hearing in June 2004, the charges were withdrawn. It emerged that the police had evidence favourable to Mr Gillett’s case which had not been given to the Director of Public Prosecutions before the charges were laid. Mr Gillett accepted that this was the result of negligence or “some error” within the police service, and not the result of any deliberate withholding of information.
He sued the NSW police service (represented by the State of NSW) for the “serious loss, injury and damage” he suffered. He relied on both negligence and on a breach of statutory duty, particularly the failure by the police service to disclose all relevant information obtained during the investigation to the DPP, in breach of obligations imposed on the police by s.15A of the Director of Public Prosecutions Act 1986.
The State applied to strike out the claim as disclosing no reasonable cause of action. In particular, the State argued that there was no duty owed towards Mr Gillett in the investigation of the criminal matter; and that the duty imposed by s.15A did not give rise to a duty of care in his favour, and did not convey any private right of action on him.
Mr Gillett countered that while no duty was owed in the course of the investigation, that investigation had ended by the time of the breach he was relying on. In addition, he contended that s.15A could be read as giving rise to a private right of action for its breach.
Associate Justice Schmidt noted that, as the application was for summary judgment, the test was whether the State had established that Mr Gillett’s claim was so untenable it should be brought to an end without the need for a trial.
Lengthy consideration was given to the question of whether s.15A created a private right of action or not. Associate Justice Schmidt noted that this was not a case of police officers having a discretion in the way that they exercised a power given to them by statute. It was a case of the statute requiring them to act in a particular way (i.e. by disclosing all information obtained during the investigation to the DPP) with a view to ensuring a fair trial. Further, a failure to comply with that duty placed an accused person such as Mr Gillett in a particularly vulnerable position.
Comparison was made with the cases which established that occupational safety laws can give rise to private causes of action.
In the end result, Associate Justice Schmidt found that the State had not established that s.15A could not give rise to the cause of action contended for by Mr Gillett. In addition, the claim for a breach of a common law duty of care was equally not so hopeless that it should be dismissed without a trial. It was clear that the investigation had concluded (so the immunity in relation to conduct of an investigation could not apply) and the police were clearly obliged to disclose the material. Accordingly, Mr Gillett had an arguable case that he was owed a duty of care.
Note: Caution should be exercised in considering this decision. It does not establish that the police service was negligent or even that it owed Mr Gillett a duty of care. However, it does establish that in the circumstances of the case, Mr Gillett’s arguments are not so untenable that they should not proceed to a trial.
Gillett v State of New South Wales [2009] NSWSC 421
Cleaner not responsible for lack of barricades
On 5 April 2004, Ms Fiona Barkho, was injured when she slipped and fell at the top of a carpeted ramp leading to the car park at Neeta City Shopping Centre, which was operated by the appellant, Wynn Tresidder Management Pty Ltd.
The centre was undergoing structural work at the time. Ms Barkho alleged she slipped on water which had leaked through the roof of the centre onto a carpeted temporary access ramp near the entrance to the car park and had been carried onto the tiled floor at the top of the ramp by pedestrian traffic.
She sued Wynn Tresidder in the District Court, alleging negligence and breach of statutory duty. The trial judge found in her favour and awarded damages. Wynn Tresidder appealed.
The evidence at trial established that rain was the likely cause of the water on the floor. A cleaner employed by a company known as Moonlight Cleaning Services had been mopping the area about every half hour in accordance with directions from centre security staff. Warning cones were also placed in the area. Ms Barkho’s evidence was that she did not notice the water on the tiled floor, nor the cones. She did however see a yellow warning sign and the cleaner, but as she stepped onto the tiled floor, she slipped.
At trial, the trial judge found that the cleaner had carried out his duties properly within the scope of the cleaning contract; and as a result, no finding was made against Moonlight. However, it was found that Wynn Tresidder had breached its duty of care by failing to barricade or close off the affected area so as to prevent customers from slipping on water carried onto the tiled area by pedestrian traffic.
On appeal, Wynn Tresidder argued that the finding that Moonlight had adequately performed its tasks should result in a finding that it, too, had discharged its duty to Ms Barkho. It argued that it should not have been required to barricade off the area, as that may have created other risks to shoppers.
Delivering the court’s unanimous judgment, Justice McColl noted that while both Wynn Tresidder and Moonlight had a degree of control and management over the premises, Moonlight’s opportunity to deal with the leaking roof itself was limited by its contract. In particular, it had no authority to barricade off areas of the centre. Accordingly, the trial judge had been correct to conclude that the question of Wynn Tresidder’s negligence could not be answered merely by reference to what Moonlight did.
Wynn Tresidder owed an independent duty to protect persons in the position of Ms Barkho. The risk of slipping was real and foreseeable; and steps taken by Wynn Tresidder to stem the leak had plainly been inadequate since it had continued despite those efforts. The evidence at the trial had established that there was a useable path for trolleys around the affected area had it been closed off, and that would have prevented the injury, it followed that Wynn Tresidder had breached its duty by failing to do so.
Wynn Tresidder Management v Barkho [2009] NSWCA 149
Danger signs
The extent of the duties owed by public authorities for the safety of people who engage in hazardous activities on public land has again been in the spotlight following a decision of the Western Australian Court of Appeal.
In April 2003, Mr Bradley Coombe travelled with a friend to an area known as the Lancelin Off Road Vehicle Area (ORVA), which was controlled by the Gingin Shire Council. The ORVA was gazetted for use by off-road vehicles. Mr Coombe and his friend had travelled to the area specifically for the purpose of using Mr Coombe's motorbike, a 400 cc Honda farm bike, on the sand dunes. Mr Coombe had not been there before.
Access to the ORVA was via an unsealed road, which led to a carpark immediately adjacent to the dunes. On the unsealed road, the Council erected a sign on the side of the road facing vehicles travelling to the carpark. The sign included the wording:
“THE OFF ROAD AREA IS A HAZARDOUS ENVIRONMENT MANY SERIOUS INJURIES OCCUR EACH YEAR.
BEWARE (shown in red)
SUDDEN STEEP DESCENT,
COLLISIONS WITH
VEHICLES/PEDESTRIANS.”
Although Mr Coombe had no recollection of the incident, evidence at the trial established that another motorcyclist had suffered injuries while riding his motorbike from the top of a steep face of a dune to a flat area at the base of the dune. This incident had occurred approximately half an hour before Mr Coombe's accident. Police and ambulance officers had been called to attend to the other rider. While they were doing so, Mr Coombe travelled up the gentle slope of the dune on the other side from its steep face. Witnesses saw a group of people standing on the crest of the dune waving their hands as Mr Coombe approached.
Mr Coombe and his motorbike then fell down the steep side of the dune, suffering injuries. The trial judge found that the dune in question was between 10 and 15 metres high, and was at an angle of about 80 degrees.
The trial judge found that the Council had breached its (admitted) duty of care to Mr Coombe on the basis that the sign leading to the carpark was inadequate in that it did not warn about “razor back” ridges in the sand dunes or “cliffs”. He found that if Mr Coombe had been presented with such a sign, he probably would not have ridden in the ORVA at all. As a result, judgment was entered in favour of Mr Coombe. The Council appealed.
Delivering the Court of Appeal’s majority (2-1) decision, Chief Justice Martin emphasised that the trial judge’s obligation was to assess breach of duty by looking forward from a time before the occurrence of the injury giving rise to the claim, rather than looking back at what has in fact happened. The trial judge’s reasoning however indicated that he had impermissibly “worked backwards” from the incident that in fact occurred.
This was reflected in the trial judge’s conclusions on the content of the sign. The sign used the terms “beware” and “sudden steep descent”. There was no explanation as to why these words were inadequate to warn entrants of the type of terrain to be encountered. They were, in the Chief Justice’s words “an entirely adequate and accurate description of that terrain”.
In addition, the sign was in a prominent position, and clearly about the possibility sudden steep descents. Mr Coombe was unable to recall whether or not he read the sign. If he had, it would be unlikely that a differently worded sign would have caused him to alter his behaviour. If he did not read the sign, it was difficult to see why a sign placed in the carpark would have been more likely to attract his attention.
Accordingly, the Chief Justice (with whom Justice Miller agreed) concluded that the trial judge had erred in relation to both the question of breach of duty and that of causation. While Justice McLure (who dissented) would have dismissed the appeal, the majority ordered that the Council’s appeal be allowed and that judgment should be entered in favour of the Council.
Shire of Gingin v Coombe [2009] WASCA 92
