Nepean Blue Mountains Local Health District v Starkey [2016] NSWCA 114

The plaintiff / respondent claimed for being injured when she slipped in the bathroom on a substance which remained in the bathroom after it had been cleaned. The appellant / defendant argued that the plaintiff fell as a result of experiencing vertigo or dizziness. The only issue in dispute before the trial judge was ‘causation’. On appeal, also in issue was the failure of the trial judge to advert to s.5B of the Civil Liability Act 2002 (NSW).

The causation issue was not one would ordinarily be described as such and was resolved on the factual evidence as to the state of the floor after the cleaning and in favour of the plaintiff. As to the failure of the trial judge not to advert to the Civil Liability Act, not only did it not receive traction of appeal, but triggered attention squarely on the pleadings and the manner in which the trial was conducted. The pleadings did not raise the Civil Liability Act and the manner in which the trial was conducted, did not assist the appeal submission. The appeal was dismissed.

In the process, the New South Wales Court of Appeal left no doubt as to the manner in which personal injuries claims should be pleaded by reference to the Civil Liability Act. Appreciably, Queensland has analogous provisions in both the Civil Liability Act 2003 (Qld) and the Workers’ Compensation & Rehabilitation Act 2003 (Qld).

McColl JA

  1. Although I accept that in the particular circumstances of this case, where the issues were very narrowly framed at trial by counsel for the appellant, it was not incumbent on her Honour to refer to the CLA, this case should not be seen as a general licence to trial judges, let alone counsel, not to refer to that legislation.
  2. Although pleadings identify the issues, they do not dictate the legislative framework, if any, within which those issues fall for determination. It is the CLA which, since its enactment, has provided the framework for resolution of most cases in this State concerning recovery of damages for death or personal injury caused by the fault of a person.[3]As Gleeson CJ has said extra-judicially, “[t]he language used by Parliament is the medium through which it expresses its authority, and it is the meaning of what Parliament has said that directs the exercise of judicial power in a given case.” [4]
  3. InAdeels Palace, the High Court observed, relevantly, that “[i]f attention is not directed first to theCivil Liability Act … there is serious risk that the inquiries about duty, breach and causation will miscarry.” [5]
  4. This Court said repeatedly since the enactment of the CLA that it is incumbent upon the legal profession to address the trial judge in terms of the issues the CLA poses for consideration. Pleadings should be framed by reference to relevant provisions of the CLA.[6]This is not least because of the centrality of the correct identification of risk for the purposes of liability, the concept of which, taken with “risk of harm”, pervades Part 1A of the CLA. [7]
  5. The CLA does not determine the circumstances in which a duty of care is owed. Identifying the duty of care the defendant owed the plaintiff is, in most cases, the beginning of the negligence inquiry.[8]However, even when it is conceded at trial that the defendant owed the plaintiff a duty of care, it is necessary to identify what was conceded. [9] The same should be true in respect of the issues to which the CLA applies. [10]
  6. Once the duty of care is identified, the question of breach of duty must be determined by reference to CLA, s 5B.[11]Establishing a breach of the duty of care requires demonstrating that the “three preconditions” to liability for negligence for failing to take precautions against a risk of harm specified in CLA, s 5B have been satisfied. [12] Once those issues have been determined, questions of causation under CLA, ss 5D and 5E should be addressed. [13]
  7. As Sackville AJA commented inRTA v Refrigerated Roadways, referring to theReview of the Law of Negligence Final Report, [14] “[w]hile there may be little or no difference in substance between the statutory directions contained in ss 5B and 5C of the Civil Liability Act and common law principles, it is to be remembered that the very point of the statutory provisions is to: ‘encourage judges to address their minds more directly to the issue of whether it would be reasonable to require precautions to be taken against a particular risk.’” [15]
  8. The appellant did not cite any case which stood for the proposition that failure to refer to the relevant provisions of the CLA vitiated the judgment. The authorities tend against that conclusion. InLaresu, Macfarlan JA emphasised the importance of a trial judge referring to the CLA “to ensure that he or she adheres to it in his or her reasoning and that such adherence is apparent to an appellate court.” His Honour added, however, that he did “not consider that the absence of such a reference in a judge’s decision is sufficient on its own to establish that such a decision is erroneous.”[16]
  9. Simpson JA applied these authorities to reach a similar conclusion inAustralia and New Zealand Banking Group Ltd v Haq.[17] I do not, with respect, however, understand those cases to support the proposition in [106] of that case, that it is “inappropriate [on appeal] to seek to challenge the findings of the primary judge by reference to statutory provisions to which counsel for the appellant addressed no argument and, accordingly, counsel for the respondent addressed no counter argument.”
  10. AsAdeels Palaceexplains, “[t]he absence of consideration at trial of the matters prescribed by s 5B of the Civil Liability Act may [be] reason enough to conclude that the question of breach of duty was not determined by the trial judge”. [18] The same might be said of issues governed by other provisions of the CLA to which reference is not made when a case is determined in a manner not in accordance with the legislation. Failure to determine a case in accordance with the CLA may vitiate a judgment if that failure is material to the outcome. If that omission occurs by reason of error on the part of those who appeared at trial, there may be costs consequences. [19] It cannot, however, be said that it cannot be a basis for denying appellate intervention in an appropriate case.
  11. In this case, and in others in which the provisions of the CLA were not expressly referred to, it can be seen that the primary judge essentially answered the correct questions.
  12. Nevertheless, there is no excuse, in my view, for what Garling J has described as “outdated” pleadings[20]or failure “adequately, or at all, [to] plead a cause of action of the kind which the [CLA] addresses.” [21]

Garling J delivered the leading judgment and expressed similar views. Payne JA agreed.

David Cormack – Brisbane Barrister & Mediator

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