Late in the evening on 6 October 2010, Ms Janis Lonie, then the manager of the Gryph Inn Bar and Bistro at Monash University Caulfield campus, slipped and fell on a pathway crossing a garden bed. The pathway was unformed and had been created by pedestrians using the garden bed as a short cut. Ms Lonie sustained serious injuries as a result of the fall and has not worked since.
Ms Lonie initially brought proceedings against Monash University. These were settled in late 2015 for $100,000. The Victorian WorkCover Authority (VWA) subsequently commenced proceedings against Monash for an indemnity pursuant to s.138 of the Accident Compensation Act 1985 in respect of the compensation paid to or on behalf of Ms Lonie.
In a refreshing application of common sense Justice McDonald found that the university had not been negligent. As such the VWA’s claim failed.
The case is useful because it provides a detailed examination of an occupier’s duty both at common law and pursuant to the Wrongs Act.
From the Gryph Inn a concrete stairway and ramp lead down to Queens Road where Ms Lonie had been provided with a parking space.
A few days after commencing employment on 1 September 2010, she accompanied a Monash maintenance employee across the pathway through the garden bed to obtain furniture for the inn. She subsequently used the pathway whenever walking between the inn and her car. She gave evidence that she walked back and forth to her car two or three times daily.
About five weeks after commencing work at the inn Oktoberfest celebrations were in full swing. During the morning it had rained. It had not been raining for several hours when Ms Lonie finished work at around midnight. Upon finishing work, she proceeded to walk across the pathway. About halfway down the path her right foot shot back causing her to fall and sustain serious injuries.
One of the usual expert witnesses gave evidence that the pathway was a hazard and should have been blocked off to prevent pedestrian access. In fact this occurred in 2012 when gardening works were being undertaken. However there was evidence that the exclusion of pedestrians at that time had nothing to do with safety and, in any event, it is impermissible to assess the standard of care to be applied by the use of hindsight.
DUTY OF THE OCCUPIERS
Section 14B of the Wrongs Act 1958 (Vic)
The Court noted that as the occupier of the Caulfield campus, Monash owed Ms Lonie a duty pursuant to s 14B(3) 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’.
The VWA submitted that Monash ‘was negligent in breach of the common law duty as modified by the Wrongs Act’. The effect of this was that the Court considered the elements of negligence as enumerated in the statute, and did not defer to common law negligence principles in assessing the claim.
The Court examined each of the elements of s 14B(4) in assessing whether Monash had discharged its duty of care. In assessing the gravity of the likelihood of probable injury, it noted the following points:
- The ‘likelihood of injury is not to be assessed with the benefit of hindsight’ and the ‘fact that Ms Lonie had sustained a serious injury did not support the conclusion that it was probable that serious injury would be sustained’.
- Whilst the risk was foreseeable, ‘the probable injury would not have been serious’.
- ‘There was no concealed danger in the pathway’. Moreover, the elements identified by the expert witness as being dangerous were plainly visible.
- Both Ms Lonie and a colleague of hers gave evidence that they had observed many other people using the path.
The Court therefore held that a ‘reasonable person in the position of Monash would not have taken steps to block access to the pathway or erect signs warning of potential hazards’. At this point it is worth noting that the VWA agreed that the level of lighting was not an issue in this case.
The other s 14B(4) element that the Court provided substantive comment on was in relation to Ms Lonie’s ability to appreciate the danger associated with walking across the pathway. It noted that Ms Lonie was aware that it had rained earlier that day. Moreover, that despite that she felt comfortable walking across the pathway given that she frequently traversed it, that she was able to appreciate the risk (albeit slight) of crossing the pathway on that evening as compared with the concrete ramp and stairs.
Section 138 of the Accident Compensation Act 1985 and the Wrongs Act 1958
The Court noted that ‘when determining the question of liability under s 138(1) of the ACA it is necessary to have regard to ss 48 and 49 of the Wrongs Act’. These are the sections of the Act that largely operate to direct a court to consider the relevant principles to determine whether there has been negligence.
In doing so it drew a distinction between the statutory direction to disregard the Wrongs Act when calculating the notional assessment required by the formula contained within s.138.
Application of ss 48 and 49
In applying s 48, the Court noted that the risk of a person slipping on the pathway was foreseeable and that it ‘was not far-fetched or fanciful’. It also noted that the ‘burden of taking precautions was not onerous’ as there were other means of access, being the stairs and ramp. Moreover, that there was limited social utility in walking across the pathway as it reduced the time taken by no more than 30 seconds.
Under s 49(a) of the Wrongs Act, ‘the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible’. The Court found that there was ‘insufficient evidence to support any firm findings as to the extent of any burden which would have been imposed upon Monash to carry out a risk assessment in respect of garden beds at campuses other than the Caulfield Campus’.
Moreover, in relation to s 49(b) and (c), the Court noted that the risk of harm could have been prevented by blocking the entrance to the garden bed. It stated, however, that the placing of the poles with a ribbon at the entrance to the garden bed in 2012 did not affect Monash’s liability nor did it constitute an admission of liability given the purpose for which they were placed there, which as noted above was to protect the plants that had been recently planted.
The Court found that whilst Monash owed Ms Lonie a duty of care, that duty did not extend to preventing every foreseeable injury. It made the following statement, which is worth repeating in full:
‘As at 6 October 2010 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. There is no evidence of any person ever having been injured whilst walking across the path prior to 6 October 2010. The probability of any person sustaining injury whilst traversing the path was low. There was no concealed danger in the path. The gradual slope of the path, its variable surface and the fact that it was exposed to all weather conditions was obvious to any person using it. Monash had provided safe means of ingress and egress from the Gryph Inn via concrete stairs and a ramp. It had not taken any steps to make the garden path the obvious route for a person walking from the garden path to Queens Road’.
VWA v Monash University  VSC 178 (22 April 2016) 6 .
3 Pursuant to s14B(a).
4 VWA v Monash University 6 .
5 Ibid 7 .
6 Ibid 8 .
7 Ibid13 .
8 Ibid 13.
10 Ibid14 .
11 Ibid15 .
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