In this edition:
Light relief for clubs
Licensed clubs continue to navigate a legal minefield, with lawsuits seemingly an almost everyday occurrence. A recent decision of the NSW Court of Appeal however provides some comfort to club operators that they will not be held to a standard of “perfection”, only “reasonable care”.
On 4 September 2004, Ms Yvonne Elliot had lunch at the Cardiff Panthers club operated by Penrith Rugby League Club with family members. She stayed until about 6.30pm, but did not drink any alcohol during that time.
She went to the asphalt car park at the rear of the premises. At the time, there were no lane markings to guide pedestrians through the car park. While walking through the car park, she felt her feet move on something as if they were on a roller. She fell forwards onto her hands and knees and fractured both of her wrists. She sued the club in negligence.
At trial, Ms Elliot’s case was essentially that the car park was inadequately lit. The trial judge found that it was dark at the time of the fall but that the flood lights in the car park were not operating. Those lights were set to come on automatically when darkness fell. There was no evidence as to why the lights were not on at the relevant time. In addition, there was no evidence as to whether they had failed to come on at sunset (about an hour before Ms Elliot’s fall), or whether they had come on but had later malfunctioned.
The trial judge found that the lighting system was inadequate as it relied on “casual reporting” of any malfunctions. The club was found negligent on the basis that it should have had “a system of ensuring that the external lights that operated by means of an automatic system were in fact functioning by the time it was dark.” It was said that this could be achieved by having a staff member visually check that the lights had come on at or soon after dusk; or by having an automatic malfunction alert built into the system.
The club appealed.
Delivering the Court of Appeal’s unanimous decision, Justice Sackville noted that it was accepted that the darkened car park posed a risk of injury to persons such as Ms Elliot, and that the club owed her a duty of care. The question however was whether the club had breached its duty in the circumstances.
Justice Sackville agreed with the club’s submission that, in finding that the club should have “ensured” that the lights were working, the trial judge had applied the wrong standard of care. The real question was what a “reasonable response” to the risk would have been.
Noting the lack of evidence on critical points, including why the floodlights might fail, the suggestion of a visual check of the automatic lights at sunset (at least in the absence of some evidence of another risk such as vandalism during the day) was rejected. Justice Sackville found it would not be a reasonable precaution for the club to take in order to guard against the risk of injury to patrons in the car park. The precaution would not be responsive to the nature of the foreseeable risk.
In addition, even if the club had implemented the suggested check system, the evidence did not establish that such an inspection would have detected the failure of both floodlights. They may well have come on as usual but, for some unknown reason, ceased to operate before the accident occurred at 6.30pm. Further, even if a visual inspection had taken place at sunset and revealed that the floodlights were not working, there was no evidence that the problem would have been fixed by 6.30 pm.
Accordingly, Ms Elliot had not established that, even if the suggested system had been in place, it would have prevented her injuries.
As a result, the appeal was allowed and judgment was entered for the club.
Penrith Rugby League Club Ltd v Elliot [2009] NSWCA 247
Statutory power does not automatically mean duty of care
Regular readers will recall the rather novel case of Kirkland-Veenstra v Stuart from the Victorian Court of Appeal, which was discussed in the May-June 2008 edition of this newsletter. The matter went on appeal to the High Court, and its decision has now been handed down.
To recap the facts, Mr Veenstra was discovered alone in a parked car by two police officers early on 22 August 1999. The officers noted what appeared to be tubing running from the car’s exhaust to the cabin. When they approached, they found Mr Veenstra writing. The car was not running. He appeared to be depressed but not mentally ill, and told the officers he had contemplated doing “something stupid”. The officers offered to contact his doctor or family, but he declined, saying he would see his own doctor and that he wanted to return home to talk things over with his wife. He then removed the tubing from the vehicle.
He in fact returned home; but later that day was found dead having committed suicide by asphyxiation in his vehicle at his home.
Mrs Veenstra sued the officers and the State of Victoria alleging she had developed a psychiatric illness as a result of her husband’s suicide. She alleged that they owed him a duty to prevent him from harming himself, and a duty to her to avoid foreseeable psychiatric injury that would arise from such self-harm. At first instance, the claim failed; but Mrs Veenstra appealed and the Court of Appeal allowed the appeal. The officers were granted special leave to appeal to the High Court.
In the High Court, the only issue was whether the police officers owed Mr Veenstra a duty of care. Mrs Veenstra contended that the duty was to take reasonable steps to prevent foreseeable harm to MrVeenstra “at his own hand”. The scope of the duty was said to involve apprehending him and taking him to a doctor for assessment. She accepted however that the duty was not absolute; and that there might be cases in which it would be reasonable to do nothing, or to take some step short of apprehension.
In their leading judgment, Justices Gummow, Hayne and Heydon noted that the duty advanced by Mrs Veenstra was inextricably tied to s.10 of the Mental Health Act (which gave a power to police to apprehend mentally ill persons). As such, the duty being postulated was not truly a general duty of care, but rather a duty to exercise a statutory power in a particular way.
The judgment pointed out that this was not a case where the police had exercised a power but done so negligently; it was a case where they had not exercised a power at all. It was noted:
“There can be no duty to act in a particular way unless there is authority to do so. Power is therefore a necessary condition of liability but it is not a sufficient condition. Statutory power to act in a particular way, coupled with the fact that, if action is not taken, it is reasonably foreseeable that harm will ensue, is not sufficient to establish a duty to take that action. Rather … the existence or otherwise of a common law duty of care owed by a statutory authority … ‘turns on a close examination of the terms, scope and purpose of the relevant statutory regime’. Does that regime erect or facilitate ‘a relationship between the authority … and a class of persons that, in all the circumstances, displays sufficient characteristics answering the criteria for intervention by the tort of negligence’”.
In this particular case, the question of “control” was crucial. The police officers did not control the source of the risk to MrVeenstra – he alone was the source of that risk. Justices Gummow, Hayne and Heydon found that in those circumstances, the characteristics of the case did not “answer the criteria” for imposing a duty of care in negligence.
Although their reasoning varied slightly, the other members of the court (Chief Justice French and Justices Crennan and Kiefel) agreed with the end result that no duty of care was owed in the circumstances.
The appeal was therefore allowed and the Court of Appeal’s orders were set aside, with the result that Mrs Veenstra’s claim failed.
Stuart v Kirkland-Veenstra [2009] HCA 15
“Passive” contribution can still be major
The issue of apportionment of responsibility for an incident is often a delicate balancing exercise. In the case of a road accident, for example, it would be easy to think that the drivers immediately involved in the collision would bear the lion’s share of responsibility as opposed to, say, a road authority whose negligence might be considered merely “passive”. That however is not always the case, as a recent decision of the NSW Court of Appeal demonstrates.
On 25 May 2001, a truck driven by Mr Lynsey Finch collided with a station wagon driven by Mrs Jocelyn Estephan. The collision occurred at the intersection of King Street and Devonshire Road, Rossmore, in the Liverpool City Council local government area. Mrs Estephan and her son were killed; and other family members were seriously injured.
Proceedings were brought in the District Court by various members of the family, alleging negligence against Mr Finch and the Council. In each of the proceedings there were cross-claims for contribution between Mr Finch and the Council.
The trial judge found that Mr Finch had been negligent in driving the truck and that the Council as the responsible road authority had also been negligent in failing to have appropriate warning signs and line markings at the intersection, in circumstances where it had changed the traffic priority at the intersection and had been prompted about safety concerns in 1992, 1996 and 1998. Liability was apportioned 20% to Mr Finch and 80% to the Council.
The Council appealed on a number of issues, including the question of apportionment.
Giving the court’s leading judgment, Justice Giles noted that the trial judge had found that, as the road authority with responsibility for relevant signage and line marking, and having regard to street lighting, the Council should have been aware of the need, according to proper traffic engineering considerations, for (at the least) give way signs and a holding line at the intersection. It had contributed to the hazard by modifying the traffic priority at the intersection but failing to install the signs and line marking. It failed to do so despite prompting for attention to the intersection in 1992, 1996 and 1998.
Justice Giles noted that the question of apportionment, on an appeal, had to be approached as one of “proportion, of balance and relative emphasis, and of weighing different considerations”. It was not a matter of finely dissecting findings of fact or law. In addition, it involved an “individual choice or discretion [by the trial judge], as to which there may well be differences of opinion by different minds”; and that such findings were “not lightly reviewed”.
It was common ground at the appeal that there might be degrees of departure from the standard of what is reasonable; and that the whole conduct of the party must be taken into account.
Departure from the reasonable standard was not measured simply by comparing what was done with what should have been done. The whole conduct of the Council (including its knowledge of the risk of accidents at the intersection, and its contribution to the hazard by modifying the traffic priority) had to be considered. As the Council had access to traffic engineering expertise, its failure over a long period to put in place the signage and line marking required increased the degree of its departure from the standard of what was reasonable. The Council’s culpability was therefore greater than that of Mr Finch.
Although Justice Giles noted that opinions about “comparative culpability” between the Council and Mr Finch might differ, the apportionment made by the trial judge arrived was open on the evidence and therefore the Court of Appeal should not interfere with it.
The trial judge’s apportionment of 80% against the Council was therefore upheld.
Liverpool City Council v Estephan [2009] NSWCA 161
Lifesavers saved
In what may be an Australian first, the Supreme Court of Queensland has considered the obligations of surf lifesavers in conducting rescue operations.
The plaintiff, Ms Etemovic, was struck by a jet ski that had been under the control of a lifeguard employed by the defendant council, Mr Cahill, at Currumbin Beach on 1 January 2005.
The actual circumstances of the incident however were strongly disputed on both sides, with contradictory evidence being presented. In the end however, Justice Mullins found that Ms Etemovic had been swimming in an area known as Currumbin Alley. At the time, the beach was closed, with red flags and “no swimming” signs having been erected on the beach.
Nonetheless, a number of people had entered the water. Perhaps unsurprisingly, several swimmers needed rescuing in the hazardous conditions; although Ms Etemovic was not one of them.
It was found that Mr Cahill had ridden into the area on the jet ski in order to assist two other swimmers who were in difficulties. He had stopped the jet ski and left its engine idling (so that it was not under power), while he assisted the other swimmers. While he was doing so, a wave struck the jet ski, which resulted in it colliding with Ms Etemovic.
Ms Etemovic’s case was originally advanced on the basis that Mr Cahill was operating the jet ski in a flagged swimming area. The factual findings about the closure of the beach precluded any finding on that basis. However, Justice Mullins noted that the allegations in the statement of claim were broad enough, however, to allow her to argue that Mr Cahill owed her a duty of care as the operator of the jet ski in an area where the plaintiff had entered the water to swim and where, despite the designation of the beach at the time as a “No Swimming” area, others were also swimming.
Justice Mullins found that the scope of the duty of care owed to Ms Etemovic was affected by the fact that Currumbin Alley at the time of the incident was signed as “Danger No Swimming”. Swimmers entering the water in those conditions must have expected that a lifeguard may be operating the jet ski for the purpose of assisting swimmers because of the evident dangers.
As the jet ski had been brought to a stop to allow Mr Cahill to complete a rescue, there was no negligence whatsoever on his part in having the jet ski at that point in Currumbin Alley. It followed then that, even though there were groups of swimmers nearby, the incident occurred as the result of the wave hitting the jet ski. Mr Cahill was unable to take any effective evasive action that could have prevented the incident.
As a result, Ms Etemovic had not shown that the incident was caused as a result of any breach of the duty of care owed by either Mr Cahill or the Council. Her claim therefore failed.
Etemovic v Gold Coast City Council [2009] QSC 185
