June 2013
By Glenn Biggs, Partner and
Alexis Pidcock, Associate
High social utility surrounds ruling in Grandmother’s stair fall
appeal
Readers might recall our case note of June 2012
concerning the case of Boland v Hoffman & Ors
[2012] NSWSC 571 where the Supreme Court of
New South Wales found a grandmother in breach
of her duty of care to her granddaughter when
carrying her down stairs. On 6 June 2013 the New
South Wales Court of Appeal handed down its
decision overturning the trial judge’s decision. We
discuss the Court of Appeal’s findings below.
Highlights
The Court of Appeal finds the primary judge
erred in its decision in failing to properly
consider all factors to be taken into account in
determining negligence as required under s 5B
of the Civil Liability Act 2002 (NSW). In
particular, consideration of the social utility of
the activity giving rise to the risk of harm.
The Court of Appeal therefore needed to
reconsider the question of breach of duty by
the First Defendant (Plaintiff’s grandmother)
and in doing so overturned the primary judge’s
decision that she was liable for breach of duty
of care to the infant Plaintiff for failing to
exercise reasonable care while carrying the
Plaintiff, and falling down the stairs resulting in
serious injury to the Plaintiff.
The Court of Appeal upholds the primary
judge’s decision that the builder and designers
of the stairs in question were not liable.
Facts
The Plaintiff was under six months old at the time
of the incident and being carried by her
grandmother, Reverend Hoffman, down some
stairs at a family holiday home. In descending the
stairs Hoffman lost her footing and fell, resulting in
serious injury to the Plaintiff.
In the initial
proceedings Hoffman commenced cross-claims
against the builder and designers of the stairs who
were in turn joined as defendants by the Plaintiff.
The builders and designers were not found liable in
the initial proceedings and these findings were
upheld by the Court of Appeal. As such the focus
of this article will be in relation to the Plaintiff’s
claim against her grandmother, Hoffman
(Appellant/First Defendant).
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Grounds of Appeal
The appeals before the Court were as follows:
a) Reverend Hoffman appealed:
i)
the judgment against her in favour of the
Plaintiff; and
ii)
the decisions in favour of the builder
and designers in her cross-claims
against them.
b) The Plaintiff appealed the decisions dismissing
her claims against the builder and designers,
and filed a Notice of Contention seeking to
uphold the primary judge’s finding that
Reverend Hoffman owed the Plaintiff a duty of
care said to be on grounds different to those
relied on by the primary judge.
Hoffman’s submissions
It was submitted on behalf of Hoffman the primary
judge:
a) erred in holding Hoffman owed a duty of care to
the Plaintiff;
b) impermissibly reversed the onus of proof,
thereby requiring Hoffman to show she owed
no duty of care;
c) failed to take into account factors identified in
cases such as Caltex Refineries (Qld) Pty Ltd v
Stavar [2009] NSWCA 258, as relevant to the
existence of a duty of care, in particular the
social utility of the tasks undertaken by
Hoffman;
d) incorrectly applied the principles governing
whether a duty of care existed in circumstances
of this case, especially not taking into account
that Hoffman had not actively led the Plaintiff
into a situation of danger; and
e) if Hoffman owed a duty of care to the Plaintiff,
the primary judge was wrong to conclude that
breach had been established.
Plaintiff’s submissions
It was submitted on behalf of the Plaintiff that
Hoffman’s duty of care did not arise because she
was in loco parentis (in the place of a parent), but
because she was the temporary guardian and had
the care of the infant.
© Carter Newell 2013
It was submitted the key factors were the extreme
vulnerability of the Plaintiff; Hoffman’s ability to protect her;
the foreseeability of risk of harm to the Plaintiff in the event
of the fall and Hoffman’s knowledge she should maintain a
proper look out where to place her feet. It was submitted
Hoffman’s duty of care did not arise simply because of the
familial relationship but because of the circumstances in
that she took responsibility for the care of the Plaintiff.
Liability decision
There was a general consensus by the Court and the
Plaintiff’s counsel that no duty of care arose due to
Hoffman’s familial relationship with the Plaintiff. Judges
Sackville and Barrett considered Hoffman owed the
Plaintiff a duty of care, not because she was the Plaintiff’s
grandmother, but because of the circumstances in which
she took responsibility to protect the Plaintiff from the risk
of foreseeable harm, suggesting such duty included a duty
to take reasonable care not to trip or fall on the staircase
so as to create risk of injury to the Plaintiff.
The Court considered s 5B of the Civil Liability Act 2002
(NSW) (CLA) in determining whether Hoffman had
breached her duty of care. The primary judge made no
reference to s 5B of the CLA when finding Hoffman
breached her duty of care and there was no indication he
considered all matters which he was required to take into
account. Section 5B(2)(d) required the primary judge to
consider, amongst other things, the social utility of the
activity that created the risk of harm when determining
whether Hoffman should have taken relevant precautions.
The Court found at the time of the incident, Hoffman was
assisting the Plaintiff’s mother in the early morning care of
the infant Plaintiff, and this type of assistance ‘has a very
high social utility: it goes to the very heart of what family
members do for each other.’ It further considered the
primary judge had erred in his judgment as he did not take
into account this factor in reaching his decision and as
such it was necessary for the Court of Appeal to
reconsider the question of breach of duty by Hoffman.
In overturning the primary judge’s finding of liability against
Hoffman, the Court considered Hoffman appreciated the
risk of falling while she carried the Plaintiff and took
sensible and appropriate precautions to guard against
such a fall. It found Hoffman decided the best protection
was to grip firmly on the only available support being the
balustrade, and in doing so had to negotiate with her feet
close to the newel post on the narrowest part of the
winders. Judge Sackville considered ‘it verges on fanciful’
to suggest Hoffman breached any duty to the Plaintiff
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because she elected to descend the staircase in the
manner she chose. He further found:
a) the criticism of placing her feet on the narrowest part of
the winders lacked weight as it was necessary to do so
to hold onto the only support available being the
balustrade;
b) she did not act unreasonably in transferring her grip
from the upper balustrade to the lower balustrade,
rather than grasping the newel post which was
different in shape; and
c) she was not negligent in failing to turn the lights on
before descending the staircase, as it is not
uncommon for carers of infants not to turn lights on so
as to avoid disturbing other people who are sleeping,
and she had taken the precaution of advising the
Plaintiff’s mother to leave the study bedside light on
which she considered sufficient for her to see the
outline of the staircase.
Conclusion
This decision reinforces that a duty of care does not arise
merely as a result of a person’s familial relationship with
an injured party, but due to their control of the
circumstances giving rise to the risk to the injured party. It
further highlights the existence of a duty of care does not
necessarily mean the Defendant is liable even if they have
the power to take precautions which might have avoided
the injury. In determining whether there has been a
breach of duty of care, consideration must be given to
what the Defendant did or did not do and whether a
reasonable person would have acted in the same way in
the circumstances. It also emphasises the importance of
considering all factors relating to the determination of
negligence as identified by the CLA.
Authors
Glenn Biggs
Partner
T (07) 3000 8319
E [email protected]
Alexis Pidcock
Associate
T (07) 3000 8342
E [email protected]
Melbourne
280 Queen Street
Melbourne VIC Australia 3000
(Via Agency)
www.carternewell.com