NSWCA finds architect jointly liable for injuries to golf club patron who fell into sunken garden bed15 March 2017 | Building Professionals Negligence
A Golf Club and architect were both found liable on appeal for injuries sustained by a patron who fell into a garden bed adjacent to a car park.
- Whether the Golf Club was liable when the architect was found not liable at trial
- Whether the architect was in breach of duty
- Whether the assessment of contributory negligence at 15% was inappropriate
On 19 November 2011, the first respondent, Mr Turner, attended his daughter’s wedding at premises occupied by the appellant, which trades as Harrington Grove Country Club (the Club). At about 10:30 in the evening, Mr Turner carried the remains of the wedding cake to the boot of his car, which was parked in one of the car parks on the Club’s premises. At the rear of the parking bay was a concrete kerb. Immediately beyond the kerb was a garden bed. Mr Turner’s car was parked rear to the kerb. He noticed the garden to the rear of his car, walked to the rear of his car, opened the boot electronically, and then walked “in a crab-like fashion” along the kerb in order to place the wedding cake in the boot. Then, as he closed the boot of the car, he stepped back into the garden bed. Although it contained plants growing to approximately the level of the car park, it was quite deep (720 - 810mm) and he fell down into it and sustained serious injuries.
Mr Turner brought proceedings and the architect, Hassell Ltd, (Hassell) which had been retained to provide architectural and landscape design services for the Club. Proceedings were also issued against the Club.
The Decision at Trial
The trial judge entered judgments in favour of Mr Turner and Hassell respectively. In relation to Hassell, the trial judge held that the circumstances were not such that a reasonable person in Hassell’s position would have taken the precaution of erecting a balustrade. Mr Turner did not identify any other warning that should have been provided. Nor did he point to any evidence that the location or design of the parking area where his injury occurred was deficient beyond referring to the need to install a balustrade. In any event, the trial judge would not have found that any breach by Hassell had caused Mr Turner’s loss under s 5D of the CLA (NSW). In contrast, the trial judge found in relation to the Club that the risk of injury was foreseeable and not insignificant, the cost of preventative action was an inexpensive balustrade and that the Club’s failure to install it caused the injury in accordance with s 5D. The trial judge rejected a defence that the Club was entitled to rely upon Hassell’s expertise. Contributory negligence was assessed at 15%.
The Issues on Appeal
The Club appealed on what it argued was the incongruity in the finding of its negligence and the dismissal of the claim against Hassell, and sought a redetermination of contributory negligence. Mr Turner cross-appealed the failure to find Hassell liable in negligence, and also the finding of contributory negligence on the ground that the Mr Turner’s conduct was, at worst, mere inadvertence.
The Decision on Appeal
Hassall was found liable. The Court of Appeal noted that the trial judge had found Hassall not liable because Mr Turner had not shown that the plants and foliage could have grown sufficiently to obscure the depth of the garden bed and because Mr Turner had not shown the drop would not have been observable with lighting if the plants had not grown enough to obscure the view of the drop below. The Court of Appeal disagreed with this approach and held that since Hassall had designed the landscape next to the rear of the car park, it must have had actual knowledge of the plants in the garden bed and must have been able to envisage that at some stage they would grow enough to obscure the depth of that garden bed. This approach also answered the argument in relation to lighting.
The Court of Appeal rejected the Club’s argument that the sole cause of the injury was Mr Turner’s failure to take care of his own safety, on the basis that the true depth of the garden bed was concealed by the plants in it. The Court of Appeal rejected the Club’s challenge to the finding of breach of duty in circumstances where it had retained experts to design and construct the garden bed. As occupier, the Club was obliged to know of the sharp drop from kerb to garden bed and obliged to make its own determination of whether a foreseeable risk of injury existed and what response was required. It failed to do so.
The Court of Appeal affirmed the trial judge’s apportionment of contributory negligence at 15% because although Mr Turner failed to take reasonable precautions before stepping back into the garden bed, his failure was minor in comparison to the design and occupation of premises with a sharp drop behind the car park.
Liability was apportioned 75% to the Club and 25% to Hassall on the basis that the Club was in actual occupation of the premises, was responsible for maintaining the gardens and should have known exactly the extent to which the fall in level was or was not obvious to patrons such as Mr Turner.
Implications for you
Building professionals such as architects should be aware that compliance with relevant standards and industry codes will not necessarily excuse a breach of duty in circumstances where it is relatively easy and economical to take remedial precautions, particularly where such precautions are used in nearby areas.