- Compliance, or non-compliance, with Australian Standards is not determinative of whether there has been a breach of duty of care.
- Occupiers are required to identify all foreseeable risks that arise from the use of the premises and take reasonable precautions to address those risks. An occupier cannot escape liability on the basis that they have relied upon professional opinions unless the expertise was required to appreciate the risk.
- An appellate court will not lightly review a finding of apportionment made by a trial judge unless an error is identified.
On 19 November 2011, the plaintiff attended the wedding of his daughter at Harrington Grove Country Club (the Club). At the end of the evening, the plaintiff attended the car park to place the remainder of the wedding cake into the boot of his car, which was parked with the rear to a concrete kerb. Immediately beyond the kerb was a garden bed. The plaintiff fell and sustained injuries after stepping back into the sunken garden bed which contained plants growing to approximately the level of the car park. It was found that the drop ranged between 720mm and 810mm from the bottom of the garden bed to the top of the kerb.
The plaintiff commenced proceedings against the Club, as owner and occupier of the car park, and Hassell Ltd (the architects), who had been retained to provide architectural and landscape design services for the Club. The plaintiff alleged that the Club had failed to fence, barricade or enclose the garden bed and alleged that the architects had breached their duty of care by designing a car park which included a sunken garden bed without any provision for any railing, fencing or safety.
The Club and the architects filed a cross-claim against each other, in the event that both were held to be liable. During the course of the trial, agreement was reached between the Club and the architects not to advance the case against each other.
The trial judge, Hatzistergos DCJ, found in favour of the plaintiff against the Club on the grounds that the Club’s failure to install a balustrade caused the plaintiff’s injury in accordance with s 5D of the Civil Liability Act 2002 (NSW) (CLA).
The trial judge did not make any findings of negligence against the architects. The trial judge accepted that the architects were aware of the sunken garden bed and its depth, but found that there was no evidence that they knew of the precise plantings and foliage in the area and that the height difference would have been observable in the absence of the planting and foliage. His Honour accepted the evidence led by the architects that the Building Code of Australia (the Building Code) only required the installation of a balustrade when there was a change of level exceeding one meter.
His Honour found that the plaintiff’s damages should be reduced by 15% on the ground of contributory negligence for failing to take precautions to determine that it was safe for him to step backwards.
The Club challenged the findings of liability in the Court of Appeal, focusing on the inconsistency in the finding of its negligence and the dismissal of the claim against the architects. The plaintiff cross-appealed on the basis that the trial judge erred in failing to find negligence against the architects and maintained that there should be no finding of contributory negligence as his conduct was ‘mere inadvertence’.
In a unanimous decision delivered by Leeming JA, the Court of Appeal accepted the Club’s appeal of the trial judge’s apportionment of liability.
Compliance with Australian Standards not determinative
There was no dispute that the architects had not contravened the Building Code. The architects, however, properly accepted that mere compliance with building standards was relevant to, but not dispositive of, whether there had been a breach of duty.2
With respect to s 5B(1)(c) of the CLA, the Court of Appeal disagreed with the trial judge’s conclusion that a reasonable person in the position of the architects would not have taken precautions against the foreseeable risk of injury to the plaintiff. The matters material to the trial judge’s conclusion focused on the fact that the architects could not have envisaged that the plantings and foliage could have grown to obscure the depth of the garden bed. Contemporaneous records, however, demonstrated that the architects were responsible for inspecting the plants in 2010. The expert evidence led by the architects confirmed that there had been no breach of the Building Code but did not address the possibility that the growth of the plants in the garden bed would conceal the difference in height. It was held that the architects had actual knowledge of the plants in the garden bed, and must have been able to envisage that at some time, they were apt to grow so as to conceal its true depth.
In this particular case, Leeming JA also noted that the architects’ plans in the immediate area included a fence or balustrade separating a bicycle parking area from a vehicle ramp, which created a drop of 650mm. This strengthened the conclusion that the architects should have taken precautions as the drop at the rear of the subject car park was greater than that of the vehicle ramp.
No complete delegation of responsibilities to experts unless expertise required
The Court of Appeal then turned to the question of apportionment between the Club and the architects, noting that the trial judge’s finding of failure by the Club to install a balustrade was inconsistent with the finding that the architects’ failure to install a balustrade did not cause the plaintiff’s injury. The Club submitted that it relied on the specialist training and knowledge of the architects and that it had delegated its duty of care to the architects. This submission was rejected by the Court of Appeal, referring with approval to the reasons given by Hoeben CJ in Indigo Mist Pty Ltd v Palmer.3 The architects’ submission that the maintenance of the garden bed was entirely under the control of the Club was also rejected by the Court of Appeal.
The Court of Appeal accepted that the responsibility of the Club was appreciably greater than that of the architects as it occupied the site and had actual notice of when and to what extent the drop was obscured by the vegetation. The risk created by the concealed height differential was not a risk which ought to have been perceived only by a trained architect. However, the Court of Appeal found that the architects should have borne this risk in mind when designing the car park. Leeming JA overturned the trial judge’s findings and apportioned liability as to 75% against the Club and 25% against the architects.
No interference with assessment of contributory negligence
In relation to contributory negligence, the Club submitted that the trial judge should have reduced the plaintiff’s damages by 50%.
Leeming JA referred to the principles summarised in Podrebersek v Australian Iron and Steel Pty Ltd,4being that the determination of apportionment involves a comparison of culpability and the importance of the respective acts of each party in causing the damage. Applying those principles, the Court of Appeal rejected the plaintiff’s submission that his actions were mere inadvertence by highlighting that the garden bed was not a path for pedestrian use and concluded that the plaintiff had failed to take precautions to determine that it was safe for him to step backwards.
The Court of Appeal held that there was no basis to interfere with the trial judge’s finding of contributory negligence as the Club had not identified any error by the trial judge in the formulation of legal principle nor the application of it.
This decision reaffirms the position that compliance with a relevant Australian Standard or other technical publication which sets out the minimum standard of compliance to ensure that premises are safe is not dispositive of whether there has been any breach of duty. This reinforces the principles referred to in cases such as Francis v Lewis5 that compliance, or non-compliance with a standard, or even with common practice, is not determinative of whether there has been a breach of duty of care. As Australian Standards are without legislative force and instructive only, the courts determine the standard of care and whether there has been a breach of duty of care by having regard to the CLA in conjunction with common law principles.
Case managers need to be mindful that an occupier cannot escape liability on the basis that it has relied upon specialist training and knowledge, unless the appreciation of the risk is one which required the expertise. Duty of care questions are decided on the basis of the individual circumstances of the claim. In this instance, the Club was in actual occupation and responsible for maintaining the gardens, meaning that it was in the best position to identify the potential hazards that arose from the use of the premises and to take reasonable precautions to address those risks.6
The case also reiterated that an appellate court will not lightly review a finding of apportionment made by a primary judge unless an error is identified.
1Gleeson JA and Leeming JJA and Harrison J.
2Francis v Lewis  NSWCA 152.
3Indigo Mist Pty Ltd v Palmer  NSWCA 239.
4(1985) 59 ALJR 492.
5 NSWCA 152.
6Indigo Mist Pty Ltd v Palmer  NSWCA 239.