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In brief - Occupiers' duty of care does not extend to preventing every foreseeable injury

Declaration of interest: Partner Rose Raniolo and special counsel Ana Kolovos acted for Monash University in this case.
 
In Victorian WorkCover Authority v Monash University [2016] VSC 178, the Supreme Court found that Monash University did not breach its occupier's duty of care to an injured worker as, among others, a reasonable person would have done nothing in the circumstances to prevent the risk of harm. The University was therefore not liable to indemnify the Victorian WorkCover Authority, which had brought a claim for statutory indemnity pursuant to section 138 of the Accident Compensation Act 1985 (Vic) (ACA) for the injured worker's compensation payments.

Worker seriously injures ankle slipping and falling in garden bed on University campus

The worker was employed by Gryph Investments Pty Ltd which operated the Gryph Inn Bar and Bistro within Monash University's Caulfield campus.

The worker commenced employment as the manager of the Gryph Inn on 1 September 2010. On 6 October 2010, the worker sustained serious injuries when she slipped and fell in a garden bed while walking from the Gryph Inn to her car which was parked on Queens Avenue. The worker initially brought proceedings against Monash University, which settled in 2015. 

Upon leaving the Gryph Inn, the worker had the option of accessing her car on Queens Avenue by walking down a concrete stairway or walking along a paved concrete ramp. The worker walked along the paved concrete ramp, however, approximately half way down the ramp, elected to veer off it by cutting across a garden bed located adjacent to the ramp. About halfway down the garden bed, the worker's right foot slipped and shot out backwards, causing her to fall and sustain serious injuries to her ankle. 

At trial, evidence was led from the worker and a co-worker that a pathway had been forged in the garden due to frequent pedestrian use. The worker gave evidence that shortly after the commencement of her employment, she followed a maintenance employee of Monash University along the paved concrete path and across the pathway forged through the garden bed. The worker subsequently cut across the garden bed in the same fashion when walking to and from her car. The worker stated that she had used the garden bed in this way on many occasions prior to her incident and in all weather conditions without difficulty.

Monash University's liability for worker's injuries among issues in dispute at trial

The following issues were in dispute:
  • Were the worker's injuries sustained in circumstances creating a liability in Monash University?
  • If liable, what amount was Monash University required to indemnify the VWA in accordance with the formula prescribed by section 138(3) of the ACA. 

Foreseeable risk and risk of injury considered by Court on University's duty of care 

The primary area of contention at trial was whether, as an occupier, Monash University owed the worker a duty of care and whether it had breached this duty on this occasion such as to cause the worker's alleged injuries.

Pursuant to section 14B of the Wrongs Act 1958 (Vic), an occupier owes a duty to "…take such care as in all the circumstances of the case is reasonable to see that any person on the premises will not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises". 

In considering the duty owed by Monash University, the Court took into account:
  • whether the risk created by the hazard was foreseeable, and
  • whether the risk of injury was reasonably foreseeable

No liability to indemnify Victorian WorkCover Authority as no breach of duty of care found 

The Honourable Justice McDonald held that Monash University did not breach its duty of care to the worker. Consequently, Monash University was not liable to indemnify the VWA pursuant to section 138 of the ACA. In arriving at this decision, McDonald J gave consideration to the following matters as prescribed by section 14B(4) of the Wrongs Act

Firstly, McDonald J assessed the gravity and likelihood of the probable injury. This, he warned, should not be assessed with the benefit of hindsight. The fact that the worker sustained a serious injury did not of itself support the conclusion that a serious injury was probable. 

Secondly, while McDonald J conceded there was a foreseeable risk of someone slipping by reason of the slope of the garden bed, its variable surface and its exposure to the elements, he dismissed that it was probable that an injury would occur, let alone that such injury would be serious. McDonald J took into account the worker's age (52) and her ability to appreciate the potential dangers presented by traversing the garden bed which were not concealed. Consequently, McDonald, J held that a person who was not impaired in any way by consumption of alcohol or drugs, had the ability to appreciate the risk (albeit a slight risk) associated with using the garden bed as a short cut.

Thirdly, McDonald J accepted that Monash University was aware of the use of the garden bed as a pathway and could have alleviated the risk created by the pathway. However, His Honour considered that Monash University did not make the pathway and it was not the obvious point of access to Queens Avenue given the availability of alternate means of access provided by way of the concrete stairway and the paved concrete path.

Finally, McDonald J held that "a reasonable person in the position of Monash would have done nothing to prevent access to the garden path and/or place a warning sign at the commencement of the path" (at [47]). In arriving at this conclusion, His Honour relied on the following:
  • there was no evidence of earlier injuries occurring on the garden bed
  • the probability of a person sustaining injury was low
  • there was no concealed danger in the garden bed
  • the slope of the garden bed was gradual and the surface was exposed to the weather and was obvious to any person using it
  • Monash University had provided a safe means of ingress and egress to Queens Avenue
  • Monash University had not taken any steps to make the garden bed an obvious route for persons walking to Queens Road 

Applicability of Part X, sections 48 and 49 of the Wrongs Act

The application of Part X of the Wrongs Act to a claim for statutory indemnity brought pursuant to section 138 of the ACA was brought into issue in the proceeding by way of submission made on behalf of the VWA. It was submitted that section 48 and section 49 of the Wrongs Act were not relevant to the question of whether, for the purposes of section 138(1) of the ACA, the worker's injuries were sustained in circumstances which created liability in Monash University. 

Sections 48 and 49 provide the general principles of negligence and set out that a person is not negligent in failing to take precautions against a risk of harm unless:
  • the risk was foreseeable
  • the risk was not insignificant, and
  • in the circumstances, a reasonable person in the person's position would have taken those precautions 
Section 48 prescribes certain factors to be taken into account when assessing whether a reasonable person would take precautions against a risk of harm, including the probability of the harm, the seriousness of the harm, the burden of taking precautions and the social utility of the activity which creates the harm. 
Section 49 provides additional guidance and section 49(2), in particular, provides that the fact that a risk of harm could be avoided by doing something differently, does not of itself give rise to or affect liability. 

In holding that it is necessary to consider sections 48 and 49 of the Wrongs Act when determining liability under section 138(1) of the ACA, McDonald J adopted the same reasoning as The Honourable Justice Beach in the decision of Victorian WorkCover Authority v Jones Lang Lasalle (Vic) Pty Ltd [2012] VSC 412. In that matter, Beach J held that:
…the amendment made following Alcoa raises the possibility that in determining the liability of the defendant under subsections (1) and (2), relevant provisions of Part X of the Wrongs Act fall to be applied. However, when coming to calculate the amount in accordance with the formula in section 138(3)(b), those same provisions are to be disregarded…Notwithstanding that it is difficult to discern why Parliament would intend the provisions of Part X of the Wrongs Act not to be taken into account in the calculation of the formula, in circumstances where they might fall to be taken into account on the question of liability, to hold otherwise would do unacceptable violence to the language of subsections (1) and (2) of s 138. … (at [37])
 

No right to statutory indemnity if liability for breach of occupiers' duty of care cannot be established

While the case does not change the law relating to occupiers' liability, it does serve to highlight that while occupiers owe a duty of care, that duty of care does not extend to preventing every foreseeable injury. Where a reasonable person would have done nothing in the circumstances to prevent the risk of harm, liability will not be established. If liability cannot be established, the VWA cannot establish a right to statutory indemnity pursuant to section 138 of the ACA.
 

This article has been published by Colin Biggers & Paisley for information and education purposes only and is a general summary of the topic(s) presented. This article is not specific legal advice. Please seek your own legal advice for any questions you may have. All information contained in this article is subject to change. Colin Biggers & Paisley cannot be held responsible for any liability whatsoever, or for any loss howsoever arising from any reliance upon the contents of this article.​

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