Burns v State of Queensland[2004] QDC 25

DISTRICT COURT OF QUEENSLAND

1. [1]
   The plaintiff’s claim against the defendant is for damages for negligence. A claim for breach of statutory duty was not proceeded with by the plaintiff.

2. [2]
   The plaintiff who was born on 28 April 1973 was a student teacher undertaking a Diploma of Education at the University of Queensland.

3. [3]
   On 22 August 1997 he was in the second week of a six week practicum at Wavell State High School and was lawfully on the premises (“the school”).

4. [4]
   It is admitted the defendant was responsible for the establishment, maintenance and carrying on of the Wavell State High School and was the occupier of the land and buildings that constituted the school and had the care, management and control of the school.

5. [5]
   Quantum of the plaintiff’s claim is agreed in the sum of $60,000. However, liability is in issue.

6. [6]
   The plaintiff said by way of reference to photographs tendered in evidence that he suffered an injury to his head on the underside of a stairway at the premises. The stairway gave access between the Administration Block and C Block. The stairway is a concrete stairway, and is comprised of two flights of stairs with a landing between the upper flight of stairs and the lower flight of stairs. The area under the landing at the end of the upper flight of stairs is an open area. The height from the surface upon which the plaintiff was walking to the underside of the landing of the stairway is 1.65 metres. The plaintiff is 1.73 metres tall.

7. [7]
   The plaintiff said it was about 2.45 pm and he realised he would he would have to hurry to get to his next class. He was walking quickly to get to the class. He was walking through the path beneath the stairway and he hit something. He was knocked on to his back and he woke up and stood up. He could see the staircase and he had pain in his head and the feeling of nausea and a pool of blood forming. He was dazed. He had previously walked under the landing of the stairway on four or five occasions a day prior to this event. He had become accustomed to walking under the stairway. Before striking his head he was not specifically aware of the risk of hitting his head. As he walked under the stairway before hitting his head he was thinking about the class he was about to teach. By reference to other photographs the plaintiff described concrete columns that present the direction in which he was proceeding as a pathway. He accepted in the direction in which he was proceeding further to the right there was another pathway that could be accessed rather than proceeding as he did under the stairway.

8. [8]
   The plaintiff’s case was that his injuries were caused by the negligence of the defendant. The particulars pleaded after amendment are:-

1. (a)
   Exposing the plaintiff to risk of injury which could have been avoided by the exercise of reasonable care;

2. (b)
   Failing to warn or adequately warn the plaintiff of the danger associated with the concrete overhang;

3. (c)
   Failing to prevent persons including the plaintiff from using the area below the concrete overhang as a passageway by erecting a suitable barrier.

9. [9]
   There is no dispute there was no warning sign erected on the underside of the stairway nor was the stairway painted a different colour that may have provided a contrast. Further there was no barrier erected at the time that would prevent persons including the plaintiff from using the area below the stairway as a passageway.

10. [10]
    A photograph in evidence shows a barrier has been erected since the plaintiff suffered injury. Mr O'Connor the Principal at the School said that had been erected in November 1999 because it had been reported to him there had been the plaintiff’s accident and students were continually in the area having their lunch putting their bags down and by the time lunch was over and they had taken their bags away there was a lot of rubbish there. Therefore to clean up the area a grill was placed in the position from the underside of the stairway to the floor. That was to keep the area clean. The Principal was aware of students walking under the stairway of the having to bend to do so. He said he discouraged students from doing it by telling them to follow the pathway rather than taking the shortcut. He accepted there was a risk of someone striking their head if they did go under the stairway.

11. [11]
    The Deputy Principal, Ms Watson also gave evidence. She said that on 12 August before the plaintiff suffered his injuries the area around the stairway had been cordoned off by rope. The plaintiff in his Further and Better Particulars of the Plaint alleged that the defendant had exposed the plaintiff to a risk of injury that the defendant had cordoned off the area to the right hand side of the stairway so that the only means of access to the area behind the stairway (other than a lengthy walk around the entire building to the left hand side) was through the passageway under the stairway (see para 2 (iii) (Ex 4). Ms Watson also said that she had been at the School for 17 years and had never been aware of anyone else hitting their head on that particular stairway.

12. [12]
    In terms of the plaintiff’s credit I am satisfied he is an honest witness. I am satisfied he did not seek to deliberately make a case that the area around the stairway was at the time he suffered his injuries cordoned off as appears to be the allegation in the Further and Better Particulars. I am satisfied that was a genuine error on his part in communicating the circumstances leading up to the plaintiff suffering his injuries when giving instructions to his lawyers. I accept he was trying to convey to his lawyers that at one stage the area had been cordoned off with the effect of leading him to walk on the occasion it was cordoned off under the stairway. Even though Ms Watson said the whole area should have been cordoned off including the area giving access to underneath the stairway she herself did not see the rope that had been put up by the janitor to cordon off the area. In any event even if the whole area had been cordoned off that does not mean that the plaintiff may not have bent underneath the rope to proceed under the stairway. When he was cross-examined the plaintiff accepted that he told a doctor that he was deep in thought about the work that he was going to do and whether his supervisor would approve his work and he went under the stairway beneath the stairway walking quickly and suddenly hit his head. In my opinion that was a proper concession for the plaintiff to make and is entirely consistent with what I accept happened in the circumstances.

13. [13]
    I accept the plaintiff became used to proceeding in that direction and did not think about the risk. I do not accept the plaintiff would consciously walk into the underside of the stairway.

14. [14]
    Counsel for the plaintiff submitted that the defendant owed the plaintiff a duty of care and breached that duty of care in the circumstances. I was referred to Wyong Shire Council v Shirt (1980) 146 CLR 40, 47-48 where Mason J (as he then was) said:-

“A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v. Stone (42), may nevertheless be plainly foreseeable.  Consequently, when we speak of a risk of injury as being “foreseeable” we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful.  Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable.

In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff.  If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk.  The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.  It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.

The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk.  A risk which is not far fetched or fanciful is real and therefore foreseeable.  But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty.  The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.”

15. [15]
    On the other hand Counsel for the defendant submitted even conceding the defendant owed the plaintiff a duty of care to the plaintiff as an entrant, the nature, scope and extent of that duty did not in the circumstances call for the defendant to take any action before the plaintiff suffered his injuries. Therefore, the defendant was not liable to the plaintiff. That is, the risk was so obvious it did not call for the defendant to take any steps in the circumstances to avoid the risk of injury. It was submitted the defendant was entitled to expect that the plaintiff would take reasonable care for his own safety and it is obvious here he failed to take reasonable care for his own safety.

16. [16]
    Although generally an occupier is entitled to expect an entrant will take reasonable care for their own safety the possibility of inadvertence or negligent conduct on the part of an entrant is a relevant consideration (see Kirby J in Romeo v Conservation Commission of NT (1998) 192 CLR 431 at 478 cited with approval by the Court of Appeal in Borland v Makavskar (2000) QCA 521 and per McMurdo J in Thomson v Woolworths (Queensland) Pty Ltd (2003) QCA 551 at para 49.

17. [17]
    I accept the area beneath the stairway together with the columns of the building presented a pathway towards the opening beneath the stairway to persons wishing to proceed beyond the stairway. I also accept the area beneath the stairway blended with the sky in the sense the underside of the stairway was not obvious as it was approached. I also accept the height of the underside of the stairway above ground level compared to the plaintiff’s height did not present to the plaintiff such a difference in height to act as a warning to him to bend as he approached the underside of the stairway. I accept the plaintiff was at the time immersed in thought about his work.

18. [18]
    I am satisfied that if a barrier had been erected that would have prevented the plaintiff from walking in that direction. Just as he had become accustomed to walking under the stairway, had a barrier been erected he would have been accustomed to meeting the barrier and would have had to walk in the other direction.

19. [19]
    I am also satisfied that even if no barrier had been erected, a warning sign or painting the underside of the stairway with some contrasting colour was likely to act as a warning to the plaintiff to bend down before proceeding under the stairway.

20. [20]
    I am satisfied the risk that someone would walk under the stairway and strike their head on the underside of the stairway was reasonably foreseeable by the defendant. That is so even though there had been no similar reported instance of that having occurred in the past. The principal was aware of this risk.

21. [21]
    I am satisfied the defendant by way of response to this risk should have erected a barrier or a warning sign or have painted the underside of the stairway with a contrasting colour. In my opinion there was a high probability of this event occurring to someone using the area as the principal had observed. In my opinion there was little expense involved to take some alleviating action.

22. [22]
    I am satisfied the defendant in all the circumstances would reasonably foresee a student teacher deep in thought could use the area beneath the stairway for access to other parts of the premises and strike his or her head when walking under the stairway. I am satisfied the defendant breached the duty of care owed to the plaintiff by failing to erect a barrier or a warning sign or paint the underside of the stairway with a contrasting colour.

23. [23]
    However, I am satisfied the plaintiff failed to take reasonable care for his own safety and was guilty of contributory negligence. The plaintiff had walked under this stairway on other occasions and must have bent down on those occasions. I am satisfied the plaintiff failed to take reasonable care for his own safety and failed to keep a proper lookout.

24. [24]
    In all the circumstances I apportion liability, seventy percent to the defendant and thirty percent to the plaintiff.

25. [25]
    Therefore I give judgment for the plaintiff against the defendant for the sum of $42,000.

26. [26]
    I will hear the parties on the question of costs.