Alex Kohn
26 November 2014

Recent Court of Appeal decisions

Alex Kohn

Partner And Chairman

Tel: 02 9233 9036

Mob : 0421 315 168


Dispute Resolution


Charities and Not-For-Profits Dispute Resolution



Employment, Professional Conduct and Safety

Two decisions from the New South Wales Court of Appeal during the month of July illustrate appellate level intervention into the attempted extension of an occupier’s duty of care and reasonable response to risks of injury. The decisions will be of interest to all Defendants involved in public liability claims concerning occupiers and vicarious liability generally.

Rail Corporation New South Wales v King

The Plaintiff fell onto railway tracks at Mortdale Station at 3.00am.  Approximately 30 seconds later a RailCorp train rounded the corner and ran over him, causing severe injuries. Liability was contested before the Supreme Court, who found in favour of the Plaintiff, but reduced damages by 50% for contributory negligence.

On 1 July 2014 the New South Wales Court of Appeal unanimously overturned the Supreme Court and found that RailCorp was not vicariously liable for its train driver’s failure to apply the emergency brake in time before running over the Plaintiff, and not directly liable for failure to instruct its train driver to apply the emergency brake when he saw any object on the track.

–       Vicarious Liability

Although the technical evidence established the train’s speed, period between applying the emergency brakes and the point of impact, there was less precision in what was “reasonable” to expect of the driver from when he saw an object on the track.  Based upon the expert evidence, vicarious liability would be determined by deciding whether the driver could have been expected to have reacted within only 3 seconds of seeing an object.

The Supreme Court’s finding of breach (and vicarious liability) was essentially the driver not engaging the emergency brakes immediately upon seeing something on the track.  The driver’s evidence was he had never been instructed to engage the emergency brakes if he saw rubbish on the track.  Further, the Supreme Court’s finding did not require the driver to have also identified the object as a person and did not find the driver should have identified the object as a person before he did. 

The Court of Appeal found it was not reasonable to expect the driver to react in such a short period of time and that training were not required to apply the emergency brakes whenever any object was seen on the tracks. The Court of Appeal stated the standard of care asserted by the Plaintiff to be expected of the driver (for whom RailCorp was vicariously liable) was well above that which was reasonable and the train driver had not breached any duty of care.

–       Direct Liability of RailCorp

The Supreme Court had also found RailCorp was directly liable and breached its duty of care by not issuing clear instructions to its drivers about immediately taking action when an object was seen across the track.  The (unchallenged) evidence from RailCorp was that it did not do so because of safety concerns, adverse impact to service availability and increased repair and maintenance costs.  Further, no direct breach of duty on the part of RailCorp was identified in the pleadings and there was no expert evidence in support of the need for such a direction from RailCorp.

The Court of Appeal made very clear its view that a finding of systemic breach of duty should only be made on a firm evidentiary basis, which was absent and accordingly overturned the finding of a direct breach of RailCorp’s duty of care.

Woolworths v Ryder

The Plaintiff slipped and fell sustaining injuries whilst traversing the common area of the shopping centre outside Woolworths. The evidence, which was captured on CCTV, established she had slipped in soapy residue left on the floor by a young girl blowing bubbles that her parents had bought inside Woolworths.

In the District Court the Plaintiff was successful in establishing Woolworths owed her a duty of care in the circumstances, breach and causation. However the duty of care found by the District Court had no basis in principle or policy. Further, the duty found by the lower Court mixed up the requirement for reasonable foreseeability of harm, with the existence of a duty.

On 16 July 2014 the New South Wales Court of Appeal unanimously overturned the lower Court, finding that Woolworths did not owe a duty of care for an accident sustained outside its premises in the common area and caused by a person over whom it had no control, but also did not breach any duty of care that was purportedly owed. This was particularly the case where a separate party was responsible for the common areas of the shopping centre.

–       Duty

As the occupier of its store, Woolworths was under a duty to take reasonable care to avoid hazards that might injure customers on its premises.  The occupier of the shopping centre was under a similar duty to people in the common area.  However Woolworths did not owe a further duty to prevent its products being used, by persons over whom it had no control, in a manner that created hazards in areas outside its direct control. 

The Court of Appeal found that if allowed, such a duty would impose an intolerable burden on owners and occupiers of retail premises to exercise reasonable care over areas outside their premises and control.

–       Pleadings

As is the case with a number of decisions in senior and appellate Courts over the past 12 months emphasising the need for specific pleadings and particulars, the Court of Appeal observed that the pleadings contained a large number of superfluous particulars of breach and no clear statement of the duty of care.

Once the proper identification of the duty of care was established, the weakness of the plaintiff’s case against Woolworths (as opposed to the common area occupier generally) was clear.  Woolworths had no exclusive control over the common area.  Further, the immediate cause of the Plaintiff’s accident was not any act of Woolworths, but rather the child blowing bubbles, who was under the care and control of her parents.

It would appear the lower court fell into the common trap of equating foreseeability of harm with the existence of a duty of care.  As has been outlined on many prior occasions and as was emphasised in the Modbury Triangle case, foreseeability is a necessary element in negligence, but does not itself create a duty of care.  Knowledge of a foreseeable risk of harm, is not a sufficient basis for imposing a duty of care, particularly when the supposed duty requires control over the conduct of third parties.

Although familiar relationships such as employer/employee and road users are easy to find a duty of care, it is more difficult to do so in new situations. If the suggested duty is a novel one, the salient features requiring examination include the control able to be exercised, the nature or the degree of the hazard or danger and the consequences of any action that can be taken to avoid the harm.

Learn more?

As outlined above, both of these recent decisions from the New South Wales Court of Appeal will be of interest to Defendants owing a duty of care to third parties themselves, and vicariously through the acts and omissions of their employees. The decisions reinforce the proper approach in determining the existence of a duty of care, requirement of reasonableness in determining both direct and vicarious liability and provide further guidance to lower Courts and parties in relation to any number of circumstances in which a sudden, unexpected accident is sustained by a third party.

Should you have any questions or any other matters please do not hesitate to contact Matthew Gerathy in our office.

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