In brief - Patrons must exercise care for their own safety and avoid obvious risks

The NSW Court of Appeal has upheld the decision of the District Court and dismissed an appeal by an unsuccessful plaintiff in liability insurance and workplace law proceedings.

Cleaner alleges that employer breached duty of care and that State vicariously liable 

The case Drew v State of New South Wales [2015] NSWCA 159 concerned a cleaner, Ms Drew, who was employed by Menzies Property Services Pty Ltd ("Menzies"). Menzies was contracted by the State of New South Wales ("the State") to provide cleaning services at Campbelltown Public School. 

While working at the school in November 2005, Ms Drew was walking through a classroom which was being utilised to store items for a fete when she either tripped on a box or caught a bucket she was carrying on the box, causing her to fall and sustain injuries.  

She commenced proceedings against Menzies, alleging that it breached its non-delegable duty of care as her employer, and the State, contending that it was vicariously liable for the negligent acts and/or omissions of the school staff. 

District Court finds neither employer nor State breached duties of care

During the trial, evidence was adduced from Ms Drew to the effect that she had walked past the subject box on five occasions prior to the incident. On the first occasion she pushed the box to clear her path as "the corner of the box was sticking out". 

She walked past the box another four times without incident. On the fifth occasion she walked past with a bucket and mop and it was the sixth time, when she attempted to walk back past it, that she fell. 

As Menzies could not have been aware of the existence of the box unless informed by someone, given that it was not there the previous day, Delaney DCJ was satisfied that "there were no precautions which [Menzies] was required to take to avoid the risk of injury in the circumstances. [Ms Drew] could have as she had earlier done walked around the box and avoided the accident. She misjudged where the box was and caused her own injury" [at 49].

Similarly, His Honour did not consider that it was necessary for the State to take precautions against the potential risk of harm posed by the box, as such precautions would not have avoided the risk of injury: "it was in her hands to protect herself from any risk and she did not do so" [at 55]. 

Even if it did breach its duty to Ms Drew, Delaney DCJ held that the State was entitled to rely upon statutory defences available to public authorities under Part 5 of the Civil Liability Act 2002 (NSW)

Delaney DCJ dismissed both claims, finding that neither Menzies nor the State breached their respective duties of care to Ms Drew and that she had failed to establish causation as against the State. 

Adults expected to take reasonable care for their own safety

Ms Drew appealed to the NSW Court of Appeal, contending that the primary judge erred. However, on 11 June 2015, the Court of Appeal, comprising McColl JA, Ward JA and Leeming JA, dismissed the appeal, upholding the adverse finding against Ms Drew in respect of her liability insurance and workplace law claims.   

The NSW Court of Appeal held that in circumstances where Menzies had implemented a practice of sending a supervisor to visit the school monthly, and given that the box had only been placed in the classroom on the date of the incident, or shortly beforehand, then "it was impossible for [Ms Drew] to impugn the finding of the primary judge that Menzies neither knew or ought to have known of any risk posed by the box". 

When assessing whether it was incumbent on the State to take precautions in response to the risk posed by the box, their Honours referred to Phillis v Daly (1988) 15 NSWLR 65 and Neindorf v Junkovic [2005] HCA 75 in support of the proposition that "taking no precautions whatsoever may be a reasonable response to a risk, because it can reasonably be assumed that adults will take reasonable care for their own safety and will not reasonably expect premises to be free from obvious hazards" [at 37]. 

The NSW Court of Appeal did not accept that the State had breached its duty of care, stating that occupiers are entitled to expect that patrons, such as Ms Drew, will exercise reasonable care for their own safety - particularly where a risk is so obvious. 

Occupiers not to be assumed to be negligent but must remain vigilant

This decision is an encouraging departure from the common assumption that if a person is injured at third party premises the occupier must, ipso facto, be negligent. 

While patrons are required to exercise care for their own safety and avoid obvious risks, occupiers must remain diligent in implementing, adhering to and recording of systems of inspection, maintenance and repair to minimise any exposure they may have. 

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2019.

Related Articles