High social utility surrounds ruling in Grandmother’s stair fall appeal
Jun 2013 |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).
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. 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.
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 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.
