The New South Wales District Court decision in Gray v Wagga Wagga City Council  NSWDC 108 is a reminder that the plaintiff bears the onus of proving causation in order to establish negligence. It is not enough to establish fault alone.
The plaintiff, Mrs Gray, sustained injuries to her neck, left shoulder and back when she was stuck by an automatic door at Wagga Wagga Airport, which unexpectedly closed and struck her as she walked through. While the Court found a foreseeable risk of not insignificant injury arising from the malfunction of the automatic door, the plaintiff failed to prove that the defendant’s negligence (Wagga Wagga City Council) was causative of the incident.
On 21 September 2017, the plaintiff travelled to Wagga Wagga to attend a funeral with her mother and aunt. All three remained aboard the aircraft until all passengers had disembarked.
Upon disembarking, the plaintiff assisted her aunt to walk from the aircraft and through the airport terminal at a slow pace. They eventually reached a gate (which operated as an automatic door) separating the airport from the public area of the Terminal where the plaintiff’s family were waiting.
The automatic door was fitted with a forward facing microwave sensor to detect approaching passengers, which triggered the door to open. The frame of the automatic door was also fitted with photoelectric cells (PECS) on each side at separate heights of 600mm and 150mm, which held the door open when the beam/circuit was broken by passengers walking through the door.
The plaintiff alleged that the automatic door closed onto her left arm as she proceeded through it at slow pace while assisting her aunt. She claimed to be unaware of the presence of the automatic door until she was struck.
The evidence before the Court was that the 150mm PECS were found to be inoperative in June 2016 (over 15 months prior to the incident) during a quarterly review by a contractor. The defendant was notified of the defect by the contractor and was reminded of the defect at each quarterly review thereafter. Furthermore, the contractor provided the defendant with a quote for replacement of the 150mm PECS about 2 months prior to the incident. Despite that, the PECS had not been replaced at the time of the incident.
The contractor gave evidence that his subsequent testing of the door revealed that the beam/circuit would still be broken by a person’s leg at the 600mm PECS, causing the door to remain open. Therefore, he considered the 150mm PECS a failsafe system which did not create a hazard to passengers walking through the automatic door. There was no expert evidence to challenge the contractor’s conclusions.
The evidence also revealed that physical inspections of the automatic door in question occurred every morning before the airport opened as part of the usual airport maintenance inspections, and the automatic door was always found to be operational.
Finally, despite estimates of about 100,000 passengers using the subject automatic door in question annually, there were no records of prior, similar incidents involving the subject automatic door.
The plaintiff alleged that the defendant breached its duty of care to her as occupier and controller of the airport by:
- failing to inspect, assess and monitor the automatic doors;
- failing to identify the risk of injury associated with the operation of the automatic door;
- failing to take reasonable care; and
- failing to warn passengers of that risk with visual signs or audible warnings.
In light of the above, the plaintiff contended that the defendant failed to repair/replace the 150mm PECS and thereby provided a malfunctioning automatic door.
District Court Decision
Acting District Court Judge Sidis accepted that the formula provided by section 5B of the Civil Liability Act 2002 (NSW) (CLA1) had been met, as there was a foreseeable risk of not insignificant injury arising from the malfunction of the automatic door such that a reasonable person in the defendant’s position would be expected to take precautions.
However, the plaintiff’s claim failed under section 5E of the CLA with respect to causation. Sidis J accepted the contractor’s evidence that the faulty 150mm PECS was not causative of the accident, meaning the risk arising from the automatic door had been appropriately managed by the defendant through the quarterly reviews and daily checks of the automatic door.
Sidis J also concluded that a risk warning was not warranted in the absence of any prior incidents involving at the automatic door in question. Sidis J referred to Rosenberg v Percival  HCA 18 in which Gleeson CJ said at :
“In the way in which litigation proceeds, the conduct of the parties is seen through the prism of hindsight. A foreseeable risk has eventuated, and harm has resulted. The particular risk becomes the focus of attention. But at the time of the allegedly tortious conduct, there may have been no reason to single it out from a number of adverse contingencies, or to attach to it the significance it later assumed…“
In light of the above, Sidis J found in favour off the defendant in dismissing the plaintiff’s claim.
The plaintiff “always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation” per section 5E of the CLA. The evidence from the contractor was not challenged with evidence from an appropriately qualified engineer.
Allegations of mechanical faults must be proven to be causative of an incident, which will likely require evidence from a qualified expert. Merely demonstrating that a fault exists will be insufficient to prove causation. A plaintiff will need to prove, on the balance of probabilities, that that the incident would have been avoided if the fault had been rectified.
Finally, an assessment of foreseeability and similar issues must be made prospectively and without the benefit of hindsight.
This article was written by Simon Liddy, Partner and Michael Valdes, Associate.
1 The CLA rather than the Civil Aviation (Carriers Liability) Act 1959 applied as the Plaintiff had already completed the disembarkation process at the time she was injured.