Garstin v Canberra Highland Society & Burns Club Limited [2003] ACTSC 56 (18 July 2003)

Last Updated: 18 July 2003

CAROL GARSTIN v CANBERRA HIGHLAND SOCIETY AND BURNS CLUB LIMITED

[2003] ACTSC 56 (18 July 2003)

NEGLIGENCE - plaintiff, club member and patron, went to sit on a stool to play a gaming machine and fell back off the stool - plaintiff had at all previous times only ever seen chairs with backs in that room - occupier's liability - contractual entrant for reward - application of "higher duty of care".

NEGLIGENCE - relevance of observations of scene of injury one week after the incident.

Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9; (2002) 76 ALJR 483

J G Fleming, Law of Torts (9^th ed, 1998)

Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479

Bardsley v Batemans Bay Bowling Club Limited (NSW Court of Appeal, unreported 25 November 1996

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 4 of 2003

Judge: Gray J

Supreme Court of the ACT

Date: 18 July 2003

IN THE SUPREME COURT OF THE )

) No. SCA 4 of 2003

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: CAROL GARSTIN

Appellant

AND: CANBERRA HIGHLAND SOCIETY AND BURNS CLUB LIMITED

Respondent

ORDER

Judge: Gray J

Date: 18 July 2003

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

1. This is an appeal from a decision of a Magistrate dismissing the appellant's claim for injuries sustained when she fell off a stool in the gaming area of a community club at Kambah called the Burns Club (the Club). As a result of the fall the appellant injured her left shoulder and wrists.

The facts

2. On 20 April 2000, the appellant arrived at the Club with her husband, elder daughter and younger son at about 6.30 pm. She was a member of the Club and attended every Thursday evening for the raffles and to play the poker machines. Her husband purchased a glass of wine for her. At about 7 o'clock when she went to play the gaming machines, the wine glass was still half full. She played one machine and then moved to another. She said that at all previous times that she had been in the room she had only seen and used seats with backs on them.

3. The seats provided in the gaming room for patrons to sit on whilst playing the machines were in the nature of stool with a back. Apparently, on this occasion when the appellant went to play the second machine, the seat was a somewhat smaller stool and it had no back. The appellant's description of what happened was as follows -

I went and played one machine and then I got up from that one and I walked around through a couple of the aisles and saw a machine that I liked to play, so I went to that machine, I put the glass of wine that was still half full down on the - in between the poker machines, and went to sit on the - the stool and because they're high I went to sit back on it comfortably and there wasn't any back there and I just fell over the back of the chair ...."

4. Her explanation for what happened was that she "just sat on the seat, not realising that it didn't have the back on it". As a result, she sustained the injuries to her left shoulder and wrist for which she claims damages.

The duty of care

5. The Magistrate found that the respondent owed a duty of care to the appellant in her capacity as both a member of the respondent Club and a patron at the premises. He said -

The duty owed is the ordinary, common law duty to take care. It seems to me the duty in this case is to take reasonable steps to prevent reasonably foreseeable injury.

He did so after stating that the principle to be applied was that contained in the judgment of Mason J, as he then was, in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40. Although the Magistrate, in his reasons, did not cite any passages from this decision, the passage that he was undoubtedly applying was that contained at 47 -

In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.

The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors."

The test applied by the Magistrate

6. It is plain to me that the Magistrate accepted these propositions as defining his task in this case, and I can find no fault in his application of them. He concluded as a result of these considerations that the respondent had not breached its duty of care to the plaintiff and accordingly dismissed the plaintiff's claim.

The appeal

7. The principal ground of appeal argued in this matter was that the Magistrate -

... erred in expressly failing to apply the higher degree of care required of the defendant as occupier towards the plaintiff as an entrant for reward onto the premises of the defendant.

In order to make good this ground of appeal Mr Ryan, counsel for the appellant, argued that the Magistrate had not given effect to what he described as the "higher duty of care" as he contended that the appellant was an entrant upon the premises by reason of a contractual right. He relied upon a passage in the judgment of Justice Kirby in Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9; (2002) 76 ALJR 483 at 500 at [106] in relation to persons who pay a fee to enter premises, Kirby J said -

In the traditional formulation, he was entitled to enter and use the premises for the mutually contemplated purpose in accordance with an implied warranty that the premises were as safe for that purpose as reasonable care and skill could make them. In Calin v Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33 at 38, this Court explained that the reformulation of the common law in respect of the liability of occupiers to entrants, expressed in Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 and the decisions that preceded it, had not overruled the principle governing the liability to contractual entrants stated in Watson v George [1953] HCA 41; (1953) 89 CLR 409.

8. The formulation to which Kirby J refers may, in certain cases, inform the duty to contractual entrants so as, in some respects, to make it higher than to other lawful visitors. As Professor Fleming explains in the Law of Torts (9^th ed, 1998) at 513, liability in the case of contractual entrants may attach, not only for personal negligence by the occupier or the occupier's servants, but also in respect of dangers created by independent contractors employed in connection with the construction, alteration or repair of the premises. He points out also that there is authority for the proposition that responsibility attaches even for defects negligently created before a defendant commences occupation pointing out that in the case of a contractual entrant it may be said that there is an inducement to rely upon the safety of the premises. However, Professor Fleming goes on to note that, in other respects, the standard of safety is virtually identical with the duty to other lawful visitors. He says this -

It is now unquestioned that "liability depends upon a breach by somebody at some stage of a common law duty to use reasonable care," and usually the issue will resolve itself practically into the question of whether the defendant has been guilty of negligence in connection with the source of danger.

9. It seems to me that the Magistrate did not consider that, in this case, it was necessary to go beyond the sort of formulation proposed by Professor Fleming in the passage I have cited. Although the Magistrate commented that Kirby J was in the minority in being prepared to allow the appeal which was dismissed by the majority in Woods v Multi-Sport Holdings Pty Ltd (supra), I do not consider that the Magistrate considered that he was applying a test incompatible to that which Kirby J referred. In the event, the case that he was considering did not necessitate a formulation in the terms referred to by Kirby J as the formulation in the circumstances of this case is satisfied by determining whether reasonable steps have been taken to prevent reasonably foreseeable injury. The Magistrate expressed himself as being specifically conscious of the appellant's status as a member of the Club and patron at the premises.

The particular activity in this case and foreseeability of risk

10. The activity in which the appellant was engaged did not involve any specific dangers. If the stool was regarded as a piece of equipment to be used by the appellant in the course of her activities on the premises, then it could not be said to be defective in any way. The consequence is that the respondent, as occupier of the premises, owed the appellant a duty to take reasonable care to avoid foreseeable risk of injury in the appellant taking part in the activity that she was engaged in on the premises (see Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479).

11. Because of this, in his reasons the Magistrate expressed the conclusion that the respondent would have foreseen that the stool was a "risk to the appellant" or to a group of persons, like [the appellant], "who are members or patrons of the club". I have some difficulty with this as a positive finding unless it is the sort of finding that Mahoney P discusses in Bardsley v Batemans Bay Bowling Club Limited (NSW Court of Appeal, unreported 25 November 1996) when he said -

Difficulties inherent in the concept of foreseeability alone have been examined in, inter alia, the San Sebastian litigation [1986] HCA 68; (1986) 162 CLR 340; (1983) 2 NSWLR 268. It is not necessary to repeat what was there said. In any one sense, any accident which occurs will, on reflection, be seen as foreseeable: at least, with the clarity which hindsight gives, this will be so. (my underlining)

12. Mr Ryan made much of the nature of the activity of playing poker machines as absorbing the concentration of the players so as to make the presence of a stool without a back, where other stools with backs were invariably present, as being a source of danger, but one not obvious to Club members. It followed, in his submission, that this should have been foreseen by the respondent and that the respondent should have ensured that such a stool was not present in the gaming room. Mr Parker, who appeared as counsel for the respondent, made the point that the appellant did not fall from the seat whilst she was distracted in playing the poker machine but rather the accident occurred when she first sought to seat herself before the machine. That submission seems to me to have considerable force in lessening the effect of what was said to be the distraction that the gaming machines provided and the extent to which the appellant's injury might have been foreseen. In any event, these were matters which were presumably canvassed before the Magistrate and it was for him to assess them.

The lack of any structural defect in the stool

13. The Magistrate specifically referred to there being no evidence adduced or suggestion made that the stool was defective. This reference was the subject of complaint in the grounds of appeal as it was said that it was not the appellant's case that the stool was structurally defective. As I understand the argument, it is said that, as it was never part of the appellant's case that the stool was structurally defective, the Magistrate took into account an irrelevant consideration. The argument has only to be expressed in this way to show its lack of merit.

Observations after the incident

14. Another issue that arose related to the observations that the appellant and her husband gave in evidence to the effect that a week after the incident, both the appellant and her husband saw a number of stools of the kind from which she fell lined up against a back wall of the poker machine area. It is difficult to know what to make of this aspect of evidence. On one view, it only shows that stools of this type were also available in addition to the stools encountered by the appellant on her earlier visits to the area. The Magistrate was unable to work out the significance of this evidence but in the proceedings before me, I think that it was being suggested that it was evidence of the practicality of keeping stools of this type separate from the poker machines. It equally might serve to explain why one of these stools found its way into the poker machine area. In any event, like the Magistrate, I do not see how anything can be drawn from the observation by the appellant and her husband of these stools. I add that it was not suggested that the provision of stools as such for the use of the poker machine players could be a source of danger. The force of the appellant's submission must lie in some form of unsuitability of stools arising from their association in the poker machine area with stools having backs to them. I confess that I am unable to accept the gravamen of this submission so as to regard the presence of stools without backs in the poker machine area as a reasonably foreseeable source of potential danger to members and patrons.

The test applied.

15. It has often been remarked that the taking into account of the factors referred to by Mason J in Wyong Shire Council v Shirt (supra) is the striking of a balance by the judicial officer having regard to all those factors. It is this that the Magistrate appears to have done. I cannot see that he has applied anything other than proper principles to that exercise and arrived at a conclusion that was open to him. No error of principle is apparent in the manner in which he reasoned nor has any reason been shown why I should disagree with it (see Woods v Multi-Sport Holdings Pty Ltd) (supra) at 506 [139] - [141] per Hayne J.

Other proceedings not the subject of the notice of appeal

16. I have determined this matter on the grounds of appeal before me. Some attempt was made to introduce matters arising from, and to seek leave to appeal in relation to, later proceedings in this matter which were taken to re-open the Magistrate's decision. I understand those proceedings to re-open were also the subject of an unsuccessful appeal. Those matters are not raised in the notice of appeal and it would not be proper to embark upon any consideration of them. Those proceedings are concluded and have no relevance to these proceedings. An attack on them should not be permitted collaterally in these proceedings. I decline Mr Ryan's invitation that I have regard to them.

Conclusion

17. I dismiss the appeal.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Associate:

Date: 18 July 2003

Counsel for the appellant: Mr C Ryan

Solicitor for the appellant: Helen Small & Associates

Counsel for the respondent: Mr F G Parker

Solicitor for the respondent: Phillips Fox

Date of hearing: 3 July 2003

Date of judgment: 18 July 2003