- The absence of any prior accidents is not determinative in a finding of negligence.
- As to whether s 5B of the Civil Liability Act 2002 (CLA) does or does not apply to ‘positive acts’ of negligence continues to be left undetermined.
- The language of s 5B of the CLA indicates that the provision is concerned with laying down prerequisites that are necessary to be satisfied before finding that a person has been negligent by failing to take precautions. It does not specify conditions that are sufficient for making such a finding. As such, even if the prerequisites in s 5B are found to be present, it does not necessarily follow that a person was negligent in failing to take relevant precautions.
The plaintiff commenced proceedings in the District Court in Sydney as a result of injuries sustained when he slipped and fell on the driveway of a property occupied by the defendant.
The defendant was found to have knowledge that the driveway was slippery when wet together with knowledge that the product used to seal the driveway reduced slip resistance.
The District Court determined that the defendant was negligent and entered a verdict for the plaintiff. The defendant appealed.
The substantive grounds of appeal alleged that the primary judge erred:
- in holding that it was reasonably foreseeable on the part of the defendant that such persons as the plaintiff could slip and fall in circumstances where no such accident had happened in the past;
- in finding that the accident was caused by a positive act on the defendant’s part, namely, in sealing the driveway inappropriately and without expert assistance, and thus in concluding that s 5B of the CLA had no application.
The appeal was unanimously dismissed.
In relation to 1 above, Emmett JA made reference to Francis v Lewis  which confirmed that the fact that no one else had slipped on the driveway previously was not determinative in the finding of negligence. In any event there was other evidence that supported a finding of foreseeability including three separate warnings on the product used to seal the driveway which advised of the risks involved in its use on a surface such as the defendant’s driveway.
In relation to 2 above, Emmett JA noted that s 5B relevantly provides that a person is not negligent in failing to take precautions against the risk of harm unless:
1) the risk was one of which the person knew or ought to have known,
2) the risk was not insignificant, and
3) in the circumstances, a reasonable person in the person’s position would have taken those precautions.
In determining whether a reasonable person would have taken precautions against the risk of harm, a court was required to consider the following amongst other relevant things:
(1) the probability that the harm would occur if care were not taken,
(2) the likely seriousness of the harm,
(3) the burden of taking precautions to avoid the risk of harm, and
(4) the social utility of the activity that creates the risk of harm.
Emmett JA noted that the primary judge characterised the acts of negligence found by him as positive acts and then considered the operation of s 5B. The primary judge considered that, because the acts were positive act, s 5B had no application. Nevertheless, he gave consideration to the prerequisites of s 5B and concluded that they were satisfied.
The primary judge did not make findings as to the precautions that could have been taken by the defendant to avoid the risk of harm, but found that the defendant created a risk of harm by her actions. The question of what steps could have been taken were not explored in the context of s 5B.
The particular circumstances of the case indicated that there would be no real burden of taking the precaution which would have avoided the risk of harm. Considering this, the prerequisites of s 5B were satisfied. In relation to ground 1 above, McDougall J determined that, in view of the facts as presented, the history, or absence of complaint, becomes less significant.
In relation to ground 2 above, McDougall J disagreed with the primary judge’s characterisation of the positive acts of negligence to which s 5B had no application. He noted that if the approach taken by the primary judge was correct, the application of s 5B would depend more on creativity in pleading in the language of the legislature. McDougall J stated that whilst the application of s 5B to intentional, or positive, acts has been the subject of observations and a number of decisions, there has been no decision that establishes that the section does, or for that matter does not, apply where the acts of negligence proved are positive acts rather than negative. In his view the conclusion of the primary judge could be supported on the view that s 5B did apply, and as such he did not make a determination on the question noting that this was the approach taken in Drinkwater v Howarth  and Council of the City of Greater Taree v Wells .
There was conflicting expert evidence on the slipperiness of the driveway in the area the plaintiff fell and the court was critical that neither expert was called to give evidence. As such, no criticism could be made of the primary judge in preferring one expert’s opinions over the other.
The judgment supports the findings in Francis v Lewis  that the fact that no previous accidents had happened in similar circumstances was not a determining factor for a finding of negligence. All of the circumstances surrounding the accident need to be considered in making a finding of negligence.
There is still no decision that establishes whether s 5B of the CLA does or does not apply to ‘positive acts’ of negligence.
When assessing whether a person is or is not negligent in failing to take precautions against a risk of harm, the general principles under s 5B should be applied when making that assessment irrespective of whether there have been ‘positive’ or ‘negative’ acts which give rise to the question of negligence.
The failure to call expert evidence where reports have been served can be fatal to a party’s case and is inconsistent with the party’s obligations under s 56(3) of the Civil Procedure Act 2005 (NSW) to assist the resolution of the real issues in the proceedings.
- Emmett and Leeming JJA, and McDougall J
-  NSWCA 152 at 
-  NSWCA 222
-  NSWCA 147
-  NSWCA 152