…public liability – categorisation of risk
The Houghton family invited the Long family to their unit for dinner on 28 December 2014.
Shortly before 8pm, Mr Houghton and Ms Long fell over a balcony wall – some two metres to a carport roof below. Mr Houghton suffered injuries that resulted in incomplete quadriplegia.
Mr and Mrs Houghton each commenced proceedings for damages, alleging that the accident was due to the negligence of the property owners, Mr and Mrs Potts. Mr Houghton pursued a claim for damages for personal injury and breach of contract, whereas Mrs Houghton’s claim was for ‘nervous shock’.
Damages were agreed and the trial proceeded on liability issues only.
- Judgment for the defendants.
Whilst there were competing versions of events, it was ultimately found that the accident occurred when Mr Houghton held Ms Long over the balcony wall in a playful manner, and he had lost his balance – causing him, and Ms Long, to fall onto the carport roof below.
It was considered that the correct categorisation of the risk of injury – for the purposes of section 5B, Civil Liability Act 2002 (NSW) (the Act) – was the risk of a person suffering injury by falling over the balcony wall.
The plaintiffs contended that the defendant breached their duty of care in three ways. Firstly, the balcony wall was required to be at least 865mm high, when it was not. Secondly, at the time of entry into the lease, the defendants should have raised the balcony wall to a height of one metre in accordance with the Building Code of Australia. Thirdly, the lip at the base of the balcony wall was a tripping hazard and should have been removed.
The judge took the view that “there was nothing in the condition of the balcony wall” that would be sufficient to put an individual on notice that further action was, or may have been, required, or that it constituted a danger. Whilst there was some evidence that the wall was 5mm lower than what was allegedly required at the time of construction, the judge considered that a difference of that kind was imperceptible.
The judge noted Mr Houghton’s evidence that he himself did not consider the balcony to pose any particular risk. Having resided in the premises for almost five months, the judge considered he was well-placed to make that assessment. Further, it was considered that the conduct of the plaintiffs – in entertaining on the balcony on multiple occasions – was inconsistent with any of them being on notice about a risk created by the height of the balcony wall.
With respect to the requirements as at construction, the relevant provisions of the statute relied upon were not put before the court. The plaintiffs did not tender any expert evidence addressing the issue, nor was there any other evidence dealing with building construction or related issues, such as non-conformity with proper and required practices. In any event, the judge did not consider that a small departure of between 5mm and 25mm, in of itself, evidenced want of due care or a form of non-compliance that is actionable (either in tort or contract).
Similarly, the statutory provisions relied upon to support the allegation – that the defendants were obliged to upgrade the balcony wall to a height of one metre at the time of leasing premises – were also not put before the court. It was noted however that, generally speaking, there is no obligation for a homeowner to upgrade their premises on an ongoing basis to conform with the prevailing standards of the day.
With respect to the lip, there was no evidence at all to support a finding that the presence of it constituted breach of any duty, and as such, the submission failed. Against that background, the judge found that the plaintiffs had not established any breach of duty and accordingly, their claim failed.
The claim in contract
The plaintiffs had submitted that, having entered into the lease, they were entitled to advance a contractual claim (and recover damages) unaffected by the provisions of Part 1A of the Act, because “the claim in contract is not one for damages for harm resulting from negligence”. The submission, which partly picked up the language of s5A(1) of the Act, was not further developed and no authorities were cited to support it.
The definition of ‘negligence’ in s5 was considered – “negligence means a failure to exercise reasonable care and skill”. Against that background, negligence is therefore “not a reference to the tort, but to a category of conduct, which may be an element of a cause of action in tort, in contract, under statute or otherwise”1.
Citing Paul v Cooke, the effect of s5A “is that Part 1A of the Act applies uniformly to a class of claims for damage, irrespective of how the cause of action has been formulated, so long as the damage results from a failure to exercise reasonable care and skill”.
Although, it was found that no liability arose, if liability had arisen for any one or more of the alleged omissions of the defendants, the judge considered that a “failure to exercise reasonable care and skill” had been alleged in the statement of claim. That is, what was put by the plaintiffs was that the defendants were obliged to make modifications to the balcony wall (and the lip), but they failed to do so.
The judge took the view that allegations of this kind would be a “failure to exercise reasonable care and skill” (s5), with the consequence that the claim would be “for damages for harm resulting from negligence…” (s5A(1)), and therefore the provisions of Part 1A would have been inescapable.
This compensation law casenote appears courtesy of Travis Schultz & Partners (TSP), where the author, Jemma Barnard, is an Associate. As part of the firm’s commitment to providing ongoing legal education, TSP practitioners review relevant judgments and prepare case summaries for the legal profession. A free searchable catalogue of compensation law casenotes is available at schultzlaw.com.au/case-summaries (registration required). The full version of the judgments can be found at austlii.edu.au.
1 Paul v Cooke (2013) 85 NSWLR 167;  NSWCA 311 at .