Borland v Makauskas & Anor [2000] QCA 521

SUPREME COURT OF QUEENSLAND CITATION: Borland v Makauskas & Anor [2000] QCA 521 PARTIES: PAUL MICHAEL BORLAND (plaintiff/respondent) v ALEX MAKAUSKAS and PAMELA FAY MAKAUSKAS (defendants/appellants) FILE NO/S: Appeal No 6935 of 2000 SC No 2343 of 1998 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 22 December 2000 DELIVERED AT: Brisbane HEARING DATE: 7 November 2000 JUDGES: Davies JA, Byrne and Wilson JJ Judgment of the Court ORDER: Appeal allowed. Set aside the judgment. Set aside the jury’s verdicts on questions 1 and 2, substitute “no” as the verdict on each of questions 1 and 2, and order that the respondent’s action be dismissed. The appellants to recover against the respondent their costs of the trial proceeding, including reserved costs, if any, to be assessed. The appellants to recover against the respondent their costs of the appeal to be assessed. CATCHWORDS: TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE - STANDARD OF CARE – DAMAGE – CAUSATION – CONTRIBUTORY NEGLIGENCE – DANGEROUS PREMISES – INJURIES TO PERSONS ENTERING PREMISES – INVITEES – LIABILITY TO OCCUPIER – Respondent injured when he dived from fence into shallow water in canal – fence a little inside boundary between appellants’ property and canal – jury verdict that appellants breached duty of care by not installing warning sign – jury verdict that appellants breached duty of care by leaving in place fence which might serve as invitation to jump or dive into canal THE JURY IN CIVIL PROCEEDINGS – VERDICTS AND FINDINGS – QUEENSLAND – Power of Court of Appeal to set aside jury verdict on liability – power of appellate court to -- 1 of 7 -- 2 substitute verdicts – power exercised with considerable caution and where only one possible verdict which could reasonably be given on the evidence – assessment of whether verdicts were such as to warrant intervention Supreme Court Rules O 70 r 11 Uniform Civil Procedure Rules r 5, r 766 (1)(b), r 766(5) Baird v Magripilis (1925) 37 CLR 321, followed Colin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33, followed Conrad v The Chermside Hospitals Board [1982] QdR 242, applied Evans v Davies [1991] 2 QdR 498, applied Franklins Selfserve Pty Ltd v Bozinovska [1998] NSWCA; 14 October 1998, considered Smith v McKeough (1953) 89 CLR 520, applied Thiess v TCN Channel Nine Pty Limited (No.5) [1994] 1 QdR 156, applied Wyong Shire Council v Shirt (1979-80) 146 CLR 40, followed Zalewski v Turcarolo [1995] 2 VR 562, followed COUNSEL: P A Keane QC with KF Holyoak for the appellants C E K Hampson QC with M Grant-Taylor SC for the respondent SOLICITORS: Barry & Nilsson for the appellants McLaughlins (Southport) for the respondent [1] THE COURT: Paul Michael Borland (the respondent) is a tetraplegic as the result of injuries he sustained when he dived from a fence on the appellants’ property into a canal on 18 March 1995. He sued the appellants for damages for negligence and or breach of duty as occupiers. Liability was tried before a civil jury, and in consequence of the jury’s answers to the questions put to them, the Court adjudged that the appellants were to pay the respondent 70% of his damages to be assessed. This is an appeal against that judgment. [2] The appellants were the occupiers of a residential property at 14 Yunga Court, Broadbeach Waters on the Gold Coast. It was part of a canal estate, the northern or back boundary of the property forming a common boundary with the southern bank of a canal. The living area of the house opened on to a verandah or balcony which overlooked a swimming pool and beyond to the canal. There was paving surrounding the pool, then timber decking as far as the fence, which fenced the pool area and served as a boundary indicator. The top of the fence was approximately 900 mm (three feet) above the deck and about three metres above the beach. The lower 50 - 60% of the fence consisted of lattice on top of which was a ledge and then a gap, over which was a flat top railing about eight inches wide. In fact the fence was a little inside the boundary line between the appellant’s property and the canal. The deck was supported by wooden posts a little over two metres in height. They met the ground inside a concrete revetment wall less than a metre high a little outside the line of the fence which was the actual boundary between the appellant’s -- 2 of 7 -- 3 property and the canal. At each end of the deck was a gate in the fence leading in each case to a staircase down to the beach and canal below. [3] At the time the accident occurred the water in the canal was about a metre from the revetment wall leaving exposed a shallow sloping beach of that width. The sand continued in a shallow slope into the water. However at a point about 10 feet out from the revetment wall the sand commenced to slope more steeply into deeper water. The water was clear, revealing to anyone standing on the deck the shallowness of the water. [4] The respondent was born on 30 May 1972. He had been a friend of the appellants’ son Clinton (who was about the same age) since they were schoolboys. He had slept at the appellants’ house on many occasions. The female appellant described him as “a bit of a daredevil”. Once when he was a young teenager he had dived off the roof of the house into the pool immediately below, and she had reprimanded him. [5] Before the accident in March 1995 the respondent was living on Moreton Island. He stayed a couple of nights at the appellants’ house. They were in New Zealand, but their son Clinton was at home, as was his older sister. On the evening of Friday 17 March the respondent, Clinton and 3 other young men went out on the town. He consumed a substantial quantity of alcohol throughout the night, and they took more back to the house, where they continued drinking until dawn. The respondent fell asleep on a lounge in the living area of the house at about 6:30 am. On his own admission he was, by then, very drunk. He was woken at about 9.30 am by his mates. He was still partially inebriated and was “given a hard time to get up”. He immediately jumped or dived from the verandah rail into the pool where he skylarked for up to 15 minutes. While he was in the pool an esky lid or little foam kickboard blew from the pool deck into the canal. When he first saw it, it was floating about 5 – 10 feet from the shore. [6] The respondent got out of the pool, walked over to the fence, and using the ledge on top of the lattice as a step, he stepped up on to the flat railing on top of the fence. He stood on top of the fence for a couple of seconds and saw where the esky lid was in the canal. Deciding he could make it out to the deep water, which he knew was about 10 feet out, he yelled “Yahoo” and dived into the canal. He fell short of the deep water and hit the bottom. [7] The respondent sued the appellants alleging that his injuries were caused by their negligence in (inter alia) – “(c) Failing to warn or adequately warn the plaintiff, whether by signposting or otherwise, of the danger constituted by the shallow waters of the canal and the consequent risk of injury to which one would or might be exposed in diving from the fence into the canal; (e) Leaving in place the fence from which the plaintiff dived whilst the same, by reason of its location and the manner of its construction, served as an invitation to jump or dive therefrom into the canal below.” [8] The appellants conceded that they owed the respondent a duty of care, but disputed its content and denied any breach. -- 3 of 7 -- 4 [9] These were the questions put to the jury and their answers: “1. Were the Defendants in breach of the duty of care they owed the Plaintiff by not installing a sign containing a warning to the effect of ‘Do not dive into canal, shallow waters’, and/or a pictogram to the same effect, on or visible from the deck of the Defendant’s house from which the Plaintiff dived into the canal? -- Yes. 2. Were the Defendants in breach of the duty of care they owed the Plaintiff by leaving in place the fence from which the Plaintiff dived whilst the same, by reason of its location and the manner of its construction might serve as an invitation to jump or dive therefrom into the canal below? -- Yes. 3. If yes to either of question 1 or 2: (a) Did the injuries of the Plaintiff result from any breach of duty? -- Yes (b) Did the Plaintiff know of the danger, fully appreciate the risks of the danger, and voluntarily accept the risk of the dive? -- No. 4. If ‘yes’ to question 1 or 2, to what extent, as a percentage of 100% did the negligence of the Plaintiff contribute to his injuries? -- 30%.” In consequence, the trial judge gave judgment for the respondent for 70% of his damages to be assessed. [10] On appeal the appellants’counsel submitted – (a) that the jury’s verdict was outside the range of conclusions which could reasonably be reached or alternatively, that its conclusions were such that could not reasonably be reached; (b) on the view of the evidence most favourable to the respondent the jury, properly instructed and confining themselves to relevant considerations, as reasonable jurors could not have reached the verdict that they did in answer to questions 1 and 2; (c) alternatively, the apportionment was wholly disproportionate to the respective responsibilities of the parties on the view of the evidence most -- 4 of 7 -- 5 favourable to the respondent; it was such as to indicate not just an error in the apportionment of contributory negligence, but a pervasive manifest error in the finding of negligence in the answers to questions 1 and 2. [11] In determining the appropriate standard of care and whether the appellants breached their duty to the respondent, it was necessary to identify the relevant risk, and then to consider how a reasonable person in the appellants’ position would have responded to that risk: Wyong Shire Council v Shirt (1979-80) 146 CLR 40 at 47-48 per Mason J. The task of assessing what would have been a reasonable response to the identified risk was a question of fact which turned on prevailing community standards. Accordingly that task was for the jury, who were charged with applying those standards. An appellate court will be slow to interfere with the decision of a jury on such matters. The appropriate test was expressed in the following terms in the Appeal Division of the Supreme Court of Victoria in Zalewski v Turcarolo [1995] 2 VR 562 at 567 – “In an appeal from a judgment entered in accordance with a verdict of a jury the appellate court must take the view of the evidence most favourable to the respondent. The appellants must establish that on such a view of the evidence, a reasonable jury, properly directed and confining itself to relevant considerations, could not have found negligence which was a cause of the respondent’s being shot and injured. See Australian Iron and Steel Ltd v Greenwood (1962) 107 CLR 308 at 311 and Pujick v Savic, Cox and Cudgewa Dairy Co Ltd [1971] VR 632 at 632-4.” An appellate court will not interfere unless “the evidence in its totality preponderates so strongly against the conclusion favoured by the jury that it can be said that the verdict is such as reasonable jurors could not reach”: Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41 per Mason CJ, Deane, Toohey and McHugh JJ; Thiess v TCN Channel Nine Pty Limited (No.5) [1994] 1 QdR 156 at 172-173. In the present case there was no criticism of the trial judge’s directions to the jury. The challenge was to the reasonableness of the jury’s conclusions. [12] If the jury’s answers were unsustainable, this court may set them aside and substitute the findings which the jury should reasonably have made: Baird v Magripilis (1925) 37 CLR 321 at 334 per Starke J: Smith v McKeough (1953) 89 CLR 520 at 526; Conrad v The Chermside Hospitals Board [1982] QdR 242; Evans v Davies [1991] 2 QdR 498 at 508-509 per Macrossan CJ, 534-535 per Shepherdson J, and 544-545 per de Jersey J. The power is a strong one to be exercised with considerable caution; it should be exercised only where there is only one possible verdict which could reasonably be given on the evidence: see Baird v Magripilis at 334 per Starke J. It is not restricted by Rule 766(1)(b) or (5) of the Uniform Civil Procedure Rules which allow this court to draw inferences of fact not inconsistent with the findings of the jury. Like the similar provision in O 70 r 11 of the former Supreme Court Rules, Rule 766(1)(b) and (5) are applicable where the jury’s findings are unchallenged or are justified and where a further matter, perhaps collateral only, has not been covered by those findings so that a consistent extension of them will not involve a large step: see Evans v Davies at 508 per Macrossan CJ. -- 5 of 7 -- 6 [13] The relevant risk, that of someone suffering personal injury as a result of standing on the fence and diving from it into the canal, was, to say the least, remote. It was “blindingly obvious” to anyone standing on the deck that it was impossible to dive from the top railing of the fence into water deep enough to do so with safety; the width of sandy beach, the shallow slope of that beach and clarity of the water showed that it required a carry horizontally of at least 10 feet. (See Franklins Selfserve Pty Ltd v Bozinovska [1998] NSWCA; 14 October 1998 per Mason P.) Moreover, if it matters, the respondent knew beforehand that the sand did not start to shelve steeply until about 10 feet out. But even if it is accepted that this risk was foreseeable it does not follow that the appellants were liable. [14] In Romeo v Conservation Commission of the Northern Territory (1997-98) 192 CLR 431 Hayne J observed at 488:- “But the bare fact that the risk of the injury which in fact occurred was reasonably foreseeable (in the sense of not far-fetched or fanciful) does not conclude the inquiry about the scope of the Commission’s duty: The Council of the Shire of Wyong v Shirt & Ors [1979-80] 146 CLR 40 at 48, per Mason J. The duty is a duty to take reasonable care, not a duty to prevent any and all reasonable foreseeable injuries. The fact that an accident has happened and injury has been sustained will often be the most eloquent demonstration that the possibility of its occurrence was not far-fetched or fanciful. Indeed, often it will be difficult, if not impossible, to demonstrate the contrary to a tribunal of fact. That is why it is of the first importance to bear steadily in mind that the duty is not that of an insurer but a duty to act reasonably.” [15] It would be unreasonable to expect a householder to take steps to avoid all possible forms of outrageous behaviour on the part of an entrant. As Kirby J observed in Romeo at 478:- “The entrant is only entitled to expect the measure of care appropriate to the nature of the land or premises entered and to the relationship which exists between the entrant and the occupier. The measure of the care required will take into account the different ages, capacities, sobriety and advertence of the entrants. While account must be taken of the possibility of inadvertence or negligent conduct on the part of the entrants, the occupier is generally entitled to assume that most entrants will take reasonable care for their own safety: McLean v Tedman (1984) 155 CLR 306 at 311-312; Nagle v Rottnest Island Authority (1993) 177 CLR 423 at 431; cf Phillis v Daly (1988) 15 NSWLR 65 at 74.” This is not to confuse the scope of an occupier’s duty of care with the issue of contributory negligence, which will arise only after a breach of the occupier’s duty has been established. [16] In the present case “the risk existed only in the case of someone ignoring the obvious” (Romeo at 455 per Toohey and Gummow JJ), and the respondent’s -- 6 of 7 -- 7 conduct was foolhardy in the extreme. To have required the appellants to erect a warning sign or to alter the construction of the fence would have been neither reasonable nor just (see Romeo at 478 per Kirby J). Even if the jury accepted the respondent’s protestations that he would have heeded a warning sign they could not have reasonably answered question 1 in the affirmative. [17] The jury’s answer to the second question is even more incomprehensible. There was nothing unusual in the fence or in the fact that its top rail was flat. It could not possibly be sensibly described as an invitation to do something so obviously dangerous. [18] We would allow the appeal, set aside the judgment, set aside the jury’s verdicts on questions 1 and 2, substitute “no” as the verdict on each of questions 1 and 2, and order that the respondent’s action be dismissed. We would order that the appellants recover against the respondent their costs of the trial proceeding, including reserved costs, if any, to be assessed and that the appellants recover against the respondent their costs of the appeal to be assessed. -- 7 of 7 --