Skye Helen O'meara v Dominican Fathers [ACTCA]

• Jurisdiction: Australian Capital Territory
• Judge: Crispin P,Weinberg JJ,Gyles
• Judgment Date: 05 December 2003
• Court: Court of Appeal of ACT
• Docket Number: No. ACTCA 33-2002
• Date: 05 December 2003

[2003] ACTCA 24

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Judges:

Crispin P, Gyles and Weinberg JJ

No. ACTCA 33-2002

No. SC 697 of 1997

Between:

Skye Helen O'meara

Appellant

and

Dominican Fathers

Respondent

Counsel for the Appellant: Mr D T Kennedy SC with Mr M J Walsh

Counsel for the Respondent: Mr R Williams QC

Ahluwalia v Robinson[2003] NSWCA 175 cited

Albrighton v Royal Prince Alfred Hospital[1980] 2 NSWLR 542 cited

Astley v Austrust Ltd (1999) 197 CLR 1 referred to

Australian Safeways Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 cited

Barrett v Ministry of Defence[1995] 3 All ER 87 cited

Blatch v Archer (1774) 1 Cowp 63 cited

Brodie v Singleton Shire Council (2001) 206 CLR 512 referred to

Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 considered

Cardone v Trustees of the Christian Brothers [1994] ACTSC 85 distinguished

David Jones Ltd v Bates[2001] NSWCA 233 cited

Desmond v Cullen[2001] NSWCA 238 cited

Hackshaw v Shaw (1984) 155 CLR 614 considered

Hoyts Pty Ltd v Burns[2003] HCA 61 cited

Jones v Bartlett (2000) 205 CLR 166 applied, referred to

Jones v Dunkel (1959) 101 CLR 298 applied

Key v Commissioner for Railways (1941) 41 SR (NSW) 60 cited

Lopes v Taylor (1970) 44 ALJR 412 cited

Maclenan v Segar[1917] 2 KB 325 cited

Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 cited

Morgan v Babcock and Wilcox Ltd (1929) 43 CLR 163 cited

National Australia Bank v Rusu (1999) 47 NSWLR 309 considered

Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 cited

Nuhic v Rail & Road Excavations [1972] 1 NSWLR 204 cited

O'Donnell v Reichard[1975] VR 916 cited

Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7 cited

Phillis v Daly(1988) 15 NSWLR 65 cited

Postnet Pty Ltd v Wood[2002] ACTCA 5 referred to

Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 applied, referred to

Rundle v State Rail Authority of New South Wales[2002] NSWCA 354 referred to

State Of New South Wales v Steed[2001] NSWCA 178 considered

State Rail Authority of New South Wales v Richard Stanley William Watkins[2001] NSWCA 405 referred to

South Tweed Heads Rugby League Football Club Ltd v Cole (2002) 55 NSWLR 113 cited

Tame v New South Wales[2002] HCA 35 cited

Tomlinson v Congleton BC[2003] 3 WLR 705 referred to

Watson v George (1953) 89 CLR 409 followed, cited

Widera v Reid[2002] ACTCA 3 applied

Wood v Postnet Pty Ltd[2002] ACTSC 48 cited

Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 referred to

Wyong Shire Council v Shirt (1979) 146 CLR 40 referred to

Evidence Act1995 (Cth) ss 48(1)(e), 69, 142, 146, 183

Law Reform (Miscellaneous Provisions) Act 1955 (ACT) s 15

Swanton, “Occupier's Liability Towards Contractual Entrants” (1989) 15 Monash University Law Review 69

NEGLIGENCE — occupier's liability — fall from first floor balustrade of a residential university college —whether college aware of practice of unsafe behaviour and failed to take precautions — where balustrade did not comply with current building standards

CONTRACTS — occupier's liability — contractual liability — content of implied term as to safety of premises — where appellant is fee paying resident in residential university college — where practice of unsafe conduct by students — obligation of occupier in control of premises

EVIDENCE — hearsay rule — business records exception

EVIDENCE — evidence produced by process, machines or other devices — proof of contents of a document

EVIDENCE — failure to call evidence — Jones v Dunkel inference — whether respondent had knowledge of practice of unsafe behaviour — where respondent failed to call available evidence — where appellant entitled to inference that such evidence was not led because it would not have assisted the respondent

CONTRIBUTORY NEGLIGENCE — whether apportionment of liability in contract where contributory negligence — whether duties in tort and contract are co-extensive

ORDER

THE COURT ORDERS THAT:

• 1. The parties bring in short minutes of order to give effect to these reasons.

REASONS FOR JUDGMENT

Crispin P

1 I am indebted to Gyles and Weinberg JJ for their account of the facts and issues that arise for consideration on this appeal. However, I have ultimately formed a different view as to the merits of the appeal and it is appropriate that I provide a brief statement of my reasons.

2 I agree with their Honours” conclusion that Master Connolly, as he then was, was correct in holding that the respondent was not guilty of negligence merely because it failed to upgrade an existing building to comply with a subsequent alteration to the building code and that at least that portion of the premises in the vicinity of the accident could properly be described as “unremarkable”.

3 I also agree that the scope of the general duty of care owed to the appellant may have required the respondent to take reasonable precautions to protect her from at least some risks likely to arise as a consequence of inadvertence or inattention but that this duty did not extend to risks caused by her deliberate decision to lift herself onto the balustrade. Like their Honours, I am not persuaded that a risk assessment would have concluded that inattention or carelessness, whether or not as a result of alcohol or high spirits, would have led to any risk of falling from the area in question. No fall had been reported in nearly thirty years since the balustrade had been constructed.

4 I also agree with their Honours' observation that, as with many parts of properly designed and constructed buildings, there was scope for danger if a person were to be reckless or foolhardy but that the Master had been right to conclude that the respondent's duty did not require it to take steps to guard against that risk. I share the opinion that it was not realistic to think that a warning sign or prohibition would have deterred every casual irresponsible act in this or other parts of the building.

5 However, I am unable to agree with their Honours' view that, notwithstanding these conclusions, the appeal should be allowed because the Master should have found that the respondent had been on notice of a practice of residents sitting on the balustrade and that its failure to take measures to alleviate the risk thereby created constituted a breach of the duty of care it owed to the appellant.

6 The Master was not satisfied that the respondent had been aware of residents sitting on the balustrade and the contention that he fell into error by failing to make a finding to that effect was not based merely upon the evidence actually adduced but upon the rule in ( vide Jones v DunkelJones v Dunkel (1959) 101 CLR 298 per Kitto J at 308, Menzies J at 312 and Windeyer J at 320-322; see also Widera v Reid[2002] ACTCA 3 at [21]). In essence, it was argued that knowledge of such a practice should be imputed to the respondent because it could have been expected that the practice would have come to the attention of at least some of the college staff over the years and the respondent had declined to call any witnesses to deny having been aware of it, other than Father Fowler, who had been appointed to the college only about six months prior to the accident, and Father Saunders, who had apparently left the college in 1983.

7 Counsel for the appellant sought to build on this conceptual platform by arguing that the risk of residents, such as the appellant, being injured by falling from the balustrade was reasonably foreseeable and that it could have been alleviated by providing a warning, removing the chairs and tables from the balcony to discourage residents from congregating in the area and/or raising the height of the balustrade. Since these precautions would have been relatively inexpensive and the foreseeable risk of injury was substantial, the respondent's failure to adopt them constituted a breach of its duty of care to the appellant.

8 There is a beguiling simplicity to this argument but I have ultimately concluded that it is not adequately supported either by the evidence that was before the Master or by the principles he was bound to apply.

9 Whilst the force of the submissions for the appellant should not be unduly discounted due to purely semantic considerations, the use of the word ‘practice’, tends to imply a constant pattern of behaviour or, at least, a regular habit. In fact, the Master did not find that there had been a ‘practice’ of students sitting on the balustrade. He found only that the plaintiff had established that ‘some students have sat on’ the balustrade. There had been some evidence of frequency. For example, the appellant had claimed that ‘people sat there all the time’. However, the Master was only able to find that, ‘some students have never seen anyone sit on the wall, and others have’. The notice of appeal did not include any ground challenging the adequacy of this finding. Indeed, the relevant ground of appeal alleged only that the Master was in error ‘in failing to determine that the respondent ought to have been aware of the practises (sic) of students sitting on the ledge from time to time …’ (emphasis added). The Master also noted that Father Fowler had given evidence that during the period between his appointment as Deputy Master in April 1996 and the accident in October of that year, he had never seen a student do so. It is true that those who had acted as Master or Deputy Master at the College between 1983 and 1996 were not called to give evidence but that omission did not require the Master to ignore the evidence actually given by Father Fowler, or to conclude that during the six month period in question he had constantly overlooked a regular pattern of...