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In Finnis v the State of New South Wales [2023] NSWCA 292, Kennedys was successful in the first instance and on appeal in defending claims against the State of New South Wales that it was negligent for failing to take reasonable precautions against a particular risk of harm of striking/bumping one’s head on a low doorframe.
The decision highlights the importance of correctly formulating the ‘risk of harm’ as well as the significance of pleading and evidencing the relevant precautions under s.5B and s.5C of the Civil Liability Act 2002 (NSW) (CLA).
Background
The matter involved Mr Craig Finnis (the Plaintiff and Appellant) who had spent fourteen years as a cleaner at Avalon Public School (the Premises), employed through a series of cleaning companies. The occupier of the Premises was the State of New South Wales (the Respondent) against which the Appellant brought an action in negligence. The Appellant was unable to claim against his employer pursuant to s.151H of the Workers Compensation Act 1987 (NSW).
On 25 October 2019, after retrieving toilet paper (Paper Goods) and attempting to exit a storeroom at the Premises (the Storeroom), the Appellant prematurely stood up and struck the crown of his head on the lintel of the doorframe (measured 1.485 metres high by 0.79 metres wide) (Doorframe).
Although Kennedys was successful in the first instance, the Plaintiff argued there were errors with the primary judge’s reasoning and analysis of the CLA which left the door open for appeal.
Appeal
The Appellant advanced seventeen grounds of appeal, with twelve in relation to the primary judge having erred in his interpretation and application of the CLA (Liability Grounds). In reply, Kennedys filed a Notice of Contention on behalf of the Respondent which conceded nine of the Appellant’s twelve Liability Grounds, but submitted the primary judge’s decision ought to be upheld on grounds other than those relied on below.
The Court of Appeal, consisting of Payne JA, Stern JA and Basten AJA, accepted the Respondent’s formulation of the ‘risk of harm’ per s.5B(1) as being some form of injury may be suffered by a person who was well aware of a clear and obvious risk, but through their own lack of care struck their head on the doorway.
After working through the necessary elements of s.5B(1)(a) and (b) concerning foreseeability and significance, the Court of Appeal went on to consider the ‘precautions’ against the identified risk of harm that ought to have been taken. In particular, the Court of Appeal examined the burden of precautions under the light of s.5C(a).
The Court of Appeal confirmed that s.5C(a) of the CLA stipulates the ‘relevant precautions’ must necessarily include those to avoid similar risks of injury to any person entering the Storeroom for any purpose, and not just to the Appellant whilst retrieving the Paper Goods. At trial, Kennedys led evidence of the Storeroom having been accessed over the years by persons besides the Appellant and had been used by the Respondent to store more than just the Paper Goods, including, inter alia, paper towels, a barbeque, chairs, witches hats, fluorescent lights, etc. (Other Goods).
However, the only evidence relied upon by the Appellant at trial concerning ‘precautions’ the Occupier/Respondent ought to have taken related solely to the relocating of the Paper Goods, not the Other Goods in the Storeroom. The Appellant’s submissions failed to address these shortcomings on appeal.
Ultimately, the Court of Appeal accepted the Respondent’s evidence that alternative storage at the Premises was “at a premium”. As the Appellant failed to adduce evidence to establish alternative storage space was available, the Court of Appeal held the alleged precautions of relocating the Paper Goods and the Other Goods was too burdensome, vis a vis s.5B(2)(c) and s.5C(a) of the CLA.
Lastly, Payne JA also found the primary judge’s apportionment of 12-15% for contributory negligence was “manifestly inadequate” and would have awarded a 70% reduction as the risk was obvious and could have been avoided by the most basic exercise of reasonable care. Further, it was decided that the primary judge’s two thirds liability apportionment to the employer and one third to the Respondent ought not be disturbed.
Conclusion
This decision not only serves as a reminder of the importance of identifying a particular risk of harm, especially where someone was well aware and familiar with risk posed, but also that a breach of duty of care will only be found where the reasonable precautions have been properly pleaded and supported by evidence.
Australia