Matthew Gerathy
18 June 2015

NSW Case Law Alert: Drew v State of New South Wales

Matthew Gerathy


Tel: 02 9233 9079

Mob : 0412 443 466


Dispute Resolution




NSW Court of Appeal upholds proper application of duty, breach and causation

Makinson d’Apice Dispute Resolution clients will know our previously expressed views that recent history suggests a NSW Court of Appeal more sympathetic to Defendants in occupier’s and general public liability type cases. The latest decisions continue to demonstrate Appellate Court intervention and insistence on ensuring the proper application of duty, breach and causation to the evidence. The most recent decision from the NSW Court of Appeal on 11 June 2015 is further proof of this. 

Basic Facts

The Plaintiff was a cleaner employed by Menzies Property Services Pty Limited (Menzies), who were engaged to clean Campbelltown Public School (State of NSW). On 14 November 2005, the Plaintiff tripped and fell over a protruding box in a classroom in the course of her employment. Several boxes had recently been placed there to store items for an upcoming fete. The Plaintiff commenced proceedings against Menzies for breach of the employer’s non-delegable duty of care, and the State of NSW as the occupier of the school and being vicariously liable for the acts and omissions of its staff.

District Court

The Plaintiff was unsuccessful in the District Court against both Defendants, which found no breach of duty owed by either Defendant and that the Plaintiff failed to establish causation under section 5D of the Civil Liability Act 2002 in any event. The District Court accepted the Plaintiff caught either her foot, or her bucket, on the box in question. Importantly, the evidence established the Plaintiff traversed the area several times that night. On the first occasion, she pushed the box slightly to one side to make a passage. She then successfully traversed the area multiple times and, on the sixth occasion, tripped and fell.

Menzies – The District Court quite rightly found, as her employer, Menzies owed the Plaintiff a non-delegable duty of care to provide a safe place and system of work. However it found that cleaning classrooms was not a dangerous activity. Although Menzies may have been required to check the premises from time to time, as the boxes were not there the previous day, Menzies could not have been aware of their existence unless notified.

Relying on the 1954 High Court authority of O’Connor v Commissioner for Government Transport which found it was “fanciful to suppose that a warning or special instruction was demanded about so simple and obvious a matter requiring neither special skill or knowledge to decide and ordinarily treated as a matter for the man doing the job“, the District Court was satisfied that there were no precautions required from Menzies to avoid the risk of injury. The Plaintiff could have walked around the box and avoided the accident, and she simply misjudged the passageway causing her own injury. 

State of NSW – The District Court found the State of NSW also did not need to take the precautions alleged by the Plaintiff and those precautions would not have avoided the risk of injury in any event. The Plaintiff merely failed to walk past an obvious box and was the author of her own injury. Although the District Court did not elaborate on the reasons why, it found the Plaintiff failed to establish causation in any event.

New South Wales Court of Appeal – McColl JA, Ward JA and Leeming JA

In a very direct joint Judgment reiterating the requirement for entrants to a property to take reasonable care for their own safety, see and avoid obvious risks of injury, the Court of Appeal dismissed the Plaintiff’s Appeal against both Respondents. The Court of Appeal found the trial was not particularly complex and did not require elaborate findings of fact by the District Court, which essentially found there was an obvious hazard that the Plaintiff had walked past 5 times and she misjudged it on the 6th occasion.

Menzies – the evidence established Menzies had a practice of sending a Supervisor to the school on a monthly basis and it was not suggested there was any deficiency in that practice. The evidence also established the boxes were placed the day before the accident. As such (and having regard to the Plaintiff giving evidence in chief that she never complained about the subject box), it was impossible to overturn the finding that Menzies neither knew, nor ought to have known, of any risk posed by the box.

State of NSW – It is well established that an occupier is generally entitled to expect entrants to exercise reasonable care for their own safety, particularly when risks of harm are obvious. Because it was the occupier, the school must have known the boxes were stored in the classroom. However, the Plaintiff bore the onus and failed to prove the risk was not insignificant and that a reasonable person in the School’s position would have taken precautions. The Plaintiff’s case had the same difficulties highlighted by the Court of Appeal in 1988 in Phillis v Daly which observed there are dangers on any premises and that foreseeability and seriousness of harm do not mean that, if a person falls and sustains injury, there must have been a breach of duty by the occupier.

The Court of Appeal highlighted that a number of other Appellate Court authorities like the 2005 High Court decision in Neindorf v Junkovic made clear that in certain circumstances, taking no precautions at all may be a reasonable response to a risk of injury. It was reasonable to assume that adults will take reasonable care for their own safety and will not unreasonably expect premises to be free from obvious hazards. It is not an objectively reasonable precaution for an occupier to remove obvious tripping hazards. The Court of Appeal found the District Court had clearly determined the probability of the harm to be low and the Plaintiff’s accident occurred because she had failed to take care for her own safety.

The State would only have breached its duty if a reasonable person in its position would have taken precautions. The Court of Appeal rejected the Plaintiff’s contention that the State should have instructed its employees to stack the items in the classroom so as to maintain a clear and unobstructed path, or alternatively restrict access to the storage room. Even if the floor had been marked or controlled in some way to reduce the clutter, there always remained the risk of a cleaner stumbling over an obvious obstacle.


The recent decisions continue to demonstrate Appellate Court intervention and insistence on ensuring the proper application of duty, breach and causation to the evidence. Although occupiers should always take a proactive approach to responding to foreseeable and not insignificant risks of injury, the NSW Court of Appeal continues to insist that occupiers are entitled to expect entrants to take care for their own safety, particularly in relation to obvious risks.

Author: Matthew GerathySpecial Counsel

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