Burns v State of Queensland [2004] QCA 199

SUPREME COURT OF QUEENSLAND CITATION: Burns v State of Queensland [2004] QCA 199 PARTIES: JASON ALEXANDER BURNS (plaintiff/respondent) v STATE OF QUEENSLAND (respondent/applicant) FILE NO/S: Appeal No 2563 of 2004 DC No 3611 of 1998 DIVISION: Court of Appeal PROCEEDING: Application for Leave s 118 DCA (Civil) ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 11 June 2004 DELIVERED AT: Brisbane HEARING DATE: 27 May 2004 JUDGES: McMurdo P, Williams JA and Chesterman J Separate reasons for judgment of each member of the Court, each concurring as to the order made ORDER: Application for leave to appeal refused with costs to be assessed CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – FINDINGS ON ISSUE OF NEGLIGENCE – GENERALLY – where applicant found liable in negligence for respondent's injuries after incident occurring on the applicant's property – where respondent walked into underside of stairway – where learned primary judge found that a reasonable person in the applicant's position would have foreseen that the underside of stairway created a reasonably foreseeable risk of injury which was easily and inexpensively remedied – where applicant required leave to appeal from learned primary judge's decision pursuant to s 118 District Court Act – whether learned primary judge's findings of fact were supported by the evidence – whether applicant could establish that judgment at first instance warranted reconsideration District Court of Queensland Act 1967 (Qld), s 118 Borland v Makauskas & Anor [2000] QCA 521; Appeal No -- 1 of 3 -- 2 6935 of 2000, 22 December 2000, cited Brodie & Anor v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512, cited Council of the Shire of Wyong v Shirt & Ors (1980) 146 CLR 40, cited Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431, cited COUNSEL: D O J North SC, with J B Rolls, for the applicant D A Reid for the respondent SOLICITORS: Crown Law for the applicant MurphySchmidt for the respondent [1] McMURDO P: This is an application under s 118 District Court of Queensland Act 1967 (Qld) for leave to appeal against a judgment finding the applicant liable in negligence for the respondent's injuries and awarding him damages of $42,000, after allowing for an apportionment of contributory negligence to the respondent of 30 per cent. [2] The respondent was a student teacher at Wavell State High School and was injured when he walked into the underside of a return on a stairway as he hurried to give a class to students. [3] It is common ground that the applicant as occupier owed the respondent a duty to take reasonable care for his safety: Council of the Shire of Wyong v Shirt & Ors.1 The applicant contends, however, that a reasonable person could not have foreseen that the respondent would be so careless as to walk into the concrete return, the height of which was plain for all to see, and that it follows that there was no reasonably foreseeable risk of injury. The applicant relies on statements of principle in cases such as Romeo v Conservation Commission of the Northern Territory,2 Brodie & Anor v Singleton Shire Council; Ghantous v Hawkesbury City Council3 and Borland v Makauskas & Anor.4 [4] The respondent was walking quickly to get to a class he was about to teach. He walked along a path underneath the stairway and hit his head on the concrete return which was just under five feet five inches above the ground. The respondent was just over five feet eight and a half inches tall. He had taken the path under the stairway on a number of occasions during his 10 days at the school and avoided injury by ducking his head. There was an alternative, slightly less direct, pathway to the other side of the stairs which did not have this hazard. The Deputy Principal said that she had not been aware of anyone else hitting their head in this way in the 17 years she had been at the school. [5] His Honour accepted that the respondent "became used to proceeding in that direction and did not think about the risk". His Honour adverted to the principles and some of the cases upon which the applicant now relies but rejected the contention that the risk was so obvious it did not call for the applicant to take any 1 (1980) 146 CLR 40, 47-48. 2 (1998) 192 CLR 431, 455, 478, 480. 3 (2001) 206 CLR 512, [6]-[8] and [163], [339] and [355]. 4 [2000] QCA 521; Appeal No 6935 of 2000, 22 December 2000, [16]. -- 2 of 3 -- 3 steps to avoid the risk of injury. His Honour found the area beneath the stairway presented a pathway and that the area beneath the return "blended with the sky in the sense the underside of the stairway was not obvious as it was approached". His Honour found that the height from the ground to the return "compared to the [respondent's] height did not present … such a difference in height to act as a warning to him to bend as he approached the underside of the stairway". The photographs of the stairway appear to be capable of supporting his Honour's findings of fact and his conclusion that a reasonable person in the applicant's position would have foreseen that the return on the stairway created a reasonably foreseeable risk of injury which was easily and inexpensively remedied by a warning sign, by painting the return with a safety colour or pattern or by the installation of the grille which is now in place. In apportioning contributory negligence of 30 per cent, his Honour recognised the respondent's contributing fault. [6] The applicant has not established that the judgment at first instance warrants reconsideration justifying the granting of leave to appeal by this Court. [7] I would refuse the application for leave to appeal with costs to be assessed. [8] WILLIAMS JA: As is evident from the reasons for judgment of the President, which I have had the advantage of reading, if leave was given in this case no question of principle would fall for consideration. The authorities are clear. The decision below is based on the particular facts of this case and it does not in any way establish a precedent which ought to be reviewed by this court. It is not an appropriate case for the granting of leave to appeal. I agree with the order proposed by the President. [9] CHESTERMAN J: I agree that the application for leave to appeal should be refused for the reasons given by the President and Williams JA. [10] The applicant’s very careful argument came down to the proposition that the respondent’s action for damages was, in law, bound to fail because the hazard on which he was injured was apparent. The argument proceeded that because the hazard was apparent the respondent could have seen it with the exercise of reasonable care (and indeed, on the evidence, knew of it) so that the applicant was not in breach of any duty it owed as occupier to the entrant/respondent. [11] The proposition overstates the effect of the authorities. The fact that a danger is obvious, or such that it could be avoided by the exercise of the degree of care ordinarily exercised by a member of the public, will always be highly relevant to the question whether the occupant on whose premises the danger exists has failed to take reasonable care for the safety of entrants. Indeed it will usually be decisive but in the end it is a question of fact whether an occupier took reasonable care to protect an entrant against a danger which was readily apparent. An appeal, if leave were given, would involve only a challenge to a finding of fact in a case where the injury was minor and costs are already disproportionate. No question of law or principle is involved. The application should be refused. -- 3 of 3 --