This case involved the question of whether or not it was reasonable for a cruise operator not to undertake any precautions to avoid a reasonably foreseeable risk of injury.
A majority of the Court of Appeal held that the risk, whilst not far fetched or fanciful, was not sufficient to create a legal obligation on the appellant to take steps to avoid the risk.
The case was determined on common law principles, and not the Civil Liability Act, as the accident occurred in Tasmania.
On 3 February 1999, the respondent bought tickets for a cruise on the Derwent River on MV Commodore, a ferry like vessel owned and operated by the appellant.
The MV Commodore was constructed with coamings at the entrance doors from the decks to within the vessel. The coaming at the entrance door from the aft deck was a raised portion about four inches in height and one and a half inches in depth across the bottom of the doorway. Across the top of the coaming was an unpainted stainless steel strip. At its foot at the junction with the aft deck was an unpainted aluminium strip on which the sliding door ran. The aft deck was painted a grey or blue grey colour, and the riser of the coaming viewed from the deck was painted the same colour but broken by the aluminium strip. The grey or blue grey vertical face of the riser was distinct from the vertical faces of the white sliding door to its right and the white bulkhead to its left.
After an announcement was made that coffee was being served, the respondent, whilst going through the doorway, tripped on the coaming and fell heavily on her left knee causing significant damage. The respondent did not see the coaming.
Mr Saunders, the managing director of the appellant, gave evidence that in the operation of the MV Commodore since 1987 she had carried about 10,000 passengers annually and he was not aware of anyone falling over any of the coamings.
The trial judge, English DCJ, found that the defendant had been negligent in that there was a foreseeable risk of a passenger tripping on the coaming, and that it would have been a simple matter for the defendant to have painted it a different colour from the deck so that it stood out; to have included a “mind the step” warning; or to have put a “mind the step” sign at the doorway.
Her Honour did not consider the stainless steel capping sufficient to draw attention to the coaming, which she described as an unusual danger to passengers unfamiliar with the layout of boats. As to the evidence of Mr Saunders, she said that it was not determinative, and that she found “it would be extraordinary that 10,000 passengers board the vessel annually and not one has tripped on the coaming”. Her Honour described the evidence as “less reliable in that regard”.
Justice Giles, who wrote the majority judgment noted that the thrust of the appellant’s submissions was that the coaming and any risk of tripping which it posed was obvious. His honour held that a reasonable response to the risk did not require warnings being given, and that the trial judge erred in effectively dismissing the evidence of Mr Saunders which strongly supported that these measures were not necessary.
His Honour noted that the thrust of the respondent’s submissions was that the coaming was unexpected to persons not familiar with such things. The fact that it was obvious when directly observed did not mean that the reasonable response of the appellant was not to make its presence better known. Furthermore, Mr Saunders’ evidence was not conclusive because there was a risk of injury and it was possible that there had been injuries of which he was not aware.
Notwithstanding the above findings, the Court held that the probability of injury occurring was very small and that passengers would be made aware of the coamings from the moment of boarding. Accordingly, in view of the slight probability of injury on the evidence of Mr Saunders, his Honour held that the risk was so slight that the reasonable response did not call for signage or painting to highlight the existence of the coaming.
His honour observed that “to say that suggested measures would have been a cheap and practical response to the foreseeable risk begs the question of whether it was necessary for the defendant to embark on that response. The response of the reasonable man includes doing nothing rather than adopt the simple and cheap measures”.
Justice Basten, on the other hand, held that the real question was not answered by describing the coaming as “obvious”, but by enquiring whether it was reasonably foreseeable that a passenger in the position of the respondent would seek to pass through the doorway without looking down.
The appellant sought to rely on the oft-repeated comment of Kirby J in Romero v Conservation Commission (NT) (1998) 192 CLR 431 to the following effect:
“Where a risk is obvious to a person exercising reasonable care for his or her own safety, the notion that the occupier must warn the entrant about that risk is neither reasonable nor just.”
Justice Basten referred to Gleeson CJ’s judgment in Woods v Multi-sport Holdings Pty Ltd (2002) 208 CLR 460 in which the Chief Justice referred to the judgment of Kirby J in Romero’s case:
“It is right to describe that observation as a comment. It is not a proposition of law. What reasonableness requires by way of warning from an occupier to an entrant is a question of fact, not law, and depends on all the circumstances, of which the obviousness of a risk may be only one. And, as a proposition of fact, it is not of universal validity. Furthermore, the description of a risk as obvious may require closer analysis in a given case.”
His Honour saw no reason to interfere with the implicit finding of the trial judge that warnings would have been likely to avert the accident. Having found that the risk was foreseeable and avoidable, his Honour disagreed with the trial judge in relation to whether the appellant had a duty to provide a reasonable response to avoid a foreseeable risk of injury. Basten J noted that the simplest, least expense and most effective response, namely placing a simple sign in each doorway with a coaming, could well have been treated as an insignificant burden on the operator of the vessel.
Justice Basten therefore would have dismissed the appeal.
Justice McClellan agreed with Justice Giles. His Honour placed great significance on the evidence of Mr Saunders. His Honour stated that “to my mind, the fact that so many passengers have been carried on the vessel since 1987 without a fall being reported to Mr Saunders leads inevitably to the conclusion that no more was required to be done by the appellant to discharge its duty of care to passengers”.
The appeal was therefore upheld with costs.
The case is another recent example of the difficulties plaintiffs face in demonstrating that a defendant has breached its duty of care in circumstances where it can be argued that the defendant had not acted unreasonably, which in this case included doing nothing.
As Justice McClellan stated “the response which the law requires must be informed, inter alia, by the experience of any previous problems, including any history of injury occasioned to persons”. As such the absence of previous accidents is an important, although not always a determinative factor to be taken into account when determining liability.
The obviousness of risk is only one circumstance to be taken into account in determining whether a defendant has acted reasonably and sometimes warnings will be necessary to alert the inattentive or distracted to an obvious risk.
 Giles JA, Basten JA and McClellan AJA