Do desperate times really call for desperate measures?

 
Vincent Cuthbert v New South Wales Land & Housing Corporation (unreported, District Court of New South Wales, Balla DCJ, 9 March 2018)

McCabes was recently successful in defending a claim brought against the New South Wales Land & Housing Corporation by a tenant who when faced with being locked-out of his unit, attempted to climb multiple storeys up to an outside balcony, during which he fell and suffered a mild brain injury and other physical injuries.

The decision demonstrates the importance of identifying the “risk of harm” which the defendant allegedly failed to take precautions against, and also balancing such precautions against the foreseeability of a person taking such extreme actions on the basis of necessity.

Facts

The plaintiff, Vincent Cuthbert, was a tenant of premises owned by New South Wales Land & Housing Corporation (the Corporation).

On 3 October 2013 Mr Cuthbert arrived home from work and required access to his apartment in order to use the bathroom. It was alleged that both lifts in his apartment building were out of order.

In order to access his seventh-floor apartment, Mr Cuthbert (who was 60 years of age at the time) climbed up onto a wheelie bin, and from there attempted to pull himself up onto a small cleaners’ balcony in order to access the first-floor common area and use the internal fire stairs which were locked on the ground floor.

In the process of pulling himself up onto the cleaners’ balcony, Mr Cuthbert fell and unfortunately sustained serious injuries, including a mild brain injury.

He brought proceedings against the Corporation, claiming negligence and breach of contract arising from its failure to provide him with a key to the ground floor fire stairs which would have allowed him access to his apartment without resorting to extreme measures.

The Corporation admitted that it owed a duty of care to the plaintiff. However, it submitted that the risk of harm was not foreseeable, and therefore it had not breached its duty of care.

Risk of harm

Section 5B of the Civil Liability Act 2002 (NSW) (the Act) holds that a person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, was not insignificant and a reasonable person in the position of the defendant would have taken those precautions.

In the unusual circumstances of Mr Cuthbert’s accident, the Corporation submitted that the identification of the risk of harm required a certain level of specificity, so as to clarify the appropriate precautions which should have been taken in response. A general description, such as that put forward by the plaintiff – that the relevant risk was that the plaintiff would be injured “whilst attempting to access his apartment, and in circumstances in which the lifts were out of order and the fire stairs locked” – was too broad and provided no guidance as to how a plaintiff might suffer injury if the lifts were out of order and the fire stairs were locked.

Her Honour Judge Balla agreed that a proper formulation of a risk of harm was “…the risk that a person, delayed in his or her access to the residential building by reason of a lift malfunction, might injure him or herself in attempting to gain entry to the building by trying to climb up to a first-floor balcony”.

Was the risk of harm foreseeable and significant?

Using this formulation, Her Honour accepted the Corporation’s submission that the risk of harm was not foreseeable in circumstances where there was no evidence that the Corporation had actual knowledge of the risk that a tenant would try to climb to a first-floor balcony, the premises were designated for tenants over the age of 55, and the evidence did not establish that both lifts were frequently out of order.

In these circumstances, Her Honour was satisfied that the risk of harm had a very low probability of occurrence, particularly when taking into account the likely age of the tenants and the agility and strength which would have been required for a tenant to lever himself up onto the first-floor balcony. The Court therefore held that the plaintiff had failed to demonstrate that the risk was “not insignificant” in accordance with section 5B(1)(b) of the Act.

What precautions should Housing have taken?

Mr Cuthbert argued that the Corporation ought to have taken precautions against the risk of harm by providing him with a key to the fire stairs which would allow him to access his apartment in circumstances where the both lifts were broken down. Mr Cuthbert also submitted that a key to the fire stairs should have been provided at minimal expense.

Section 5B(2) of the Act requires consideration of the a number of factors when determining what precautions a reasonable person in the position of the defendant would have taken, including the probability that the harm would occur if care was not taken, the likely seriousness of the harm, the burden of taking the precautions and the social utility of the activity that creates the risk of harm.

In relation to each of these factors, the Corporation submitted:

1. No one had ever attempted to access their apartment in this manner;
   
   
2. It was reasonable to expect that tenants would take precautions for their own safety and not behave in a foolhardy manner;
   
   
3. Although the cost of providing fire stair keys was relatively low, the “logical extension” of this burden to do so in each of its apartment buildings would be significant;
   
   
4. It was required as a landlord, to ensure the integrity of fire exits and stairwells, and this area had known problems with graffiti and anti-social behaviour.

The Court agreed with these submissions and found that the likelihood of any reasonable person acting as Mr Cuthbert had due to the failure to provide him with a fire stair key was “so slight as to be negligible” and that, at most, it might give rise to the plaintiff being forced to take an “inconvenient drive to the pub”. Mr Cuthbert himself gave evidence that returning to his car and driving to the local pub would have taken him no more than 3 to 4 minutes. When he was questioned about his decision not to drive to the nearby pub his answers included “why should I?”.

The existence of the clear alternative to the plaintiff’s actions was also relevant to causation and led the Court to make a finding that in all of the circumstances, the Corporation’s actions in not providing a key to the plaintiff could not be a necessary condition of the harm.

Claim in contract

Mr Cuthbert asserted that it was an implied term of the lease that he would have safe and unfettered access to his apartment at all times. He claimed that this term of the lease required the Corporation to give him a key to the fire stairs.

Her Honour was not persuaded by this submission. She also considered that the plaintiff had not established how a failure to provide a key to the fire stairs could be a breach of a covenant for quiet enjoyment.

Implications

At first glance, it is reasonable to simply scoff at a claim where an individual has taken it upon himself to climb a balcony at significant risk to his own safety. Unfortunately, as can be seen in this case, the injured plaintiff was able to craft up a number of inventive allegations of negligence against his landlord in an effort at detracting from his own foolhardy actions.

Given the prevalence of cases such as this, a close analysis of the facts of the matter by reference to the Civil Liability Act provisions on duty of care, foreseeability, and breach will assist a defendant to identify for the Court that (in cases such as this) the individual was entirely the author of his own misfortune and there had been no act of negligence by the occupier.

Her Honour’s decision also highlights the importance of identifying an appropriate risk of harm at a level of specificity which enables a defendant to identify how the injury could have occurred and the risk factors associated with the creation of the alleged hazard, and thus the precautions which a reasonable person in the position of the defendant should have taken.

In this case, the proper formulation of the risk of harm, which identified a plaintiff climbing up onto a balcony due to both lifts breaking down and the fire stairs being locked, led the Court to determine that such a risk was not foreseeable (partly due to the age of the residents) and therefore was insignificant in its low probability of occurrence. The failure to provide a key to the fire stairs was more likely to give rise to a situation where a tenant was forced to inconveniently drive to nearby toilet facilities.

The importance of identifying reasonable alternatives to a plaintiff’s action was also of significance in this case, particularly when a plaintiff attempts to argue that he has undertaken certain actions out of necessity, as was the case with Mr Cuthbert.