RMIT UNIVERSITY VIETNAM

Subject Code: BUSM-3311 / 4626

Business Law
Subject Name:

RMIT Vietnam , HCMC / Hanoi

Location & Campus

5
Class Group Number:

Student Name: Le Tuan Minh

S3878437
Student Number:

Dr. Viet Anh Tran

Your Teacher:

770
Word Count:

I. Introduction
The case Cheetham v Shire of Manjimup [2009] WADC 169 was named after the incident of
the plaintiff falling into the culvert of a camping ground that was maintained and controlled
by the defendant. The judge that decided this case was Judge Scott DCJ in 2009.

II. Identification of the legal issue(s)

According to the lawsuit, Sandra Cheetham is the plaintiff and Shire of Manjimup is the
defendant. On March 18 2005, the plaintiff was walking back from the telephone box through
the playground and suddenly she fell into the culvert of the playground, resulting in a leg
injury. As a result, Sandra alleged the defendant for not taking any safety precautions to
block the culvert to prevent a risk of injury. Therefore, Sandra made a claim that her injury
was caused by the defendant’s conduct and that Shire of Manjimup owed her a duty of care.

The main legal issue is whether the defendant has committed tort of negligence and is legally
liable for the plaintiff’s injury or not. To examine this issue, the judge considered three
requirements: whether the defendant owed a duty of care (DOC), whether the defendant had
breached the DOC, and whether the plaintiff suffered actual harm that was caused by the
defendant’s behaviour. The subordinate legal issue is whether there was contributory
negligence on the plaintiff’s side.

III. Critical analysis of the judge’s decision

According to the judge, the defendant had a duty of care to the plaintiff because ‘an occupier
owes a duty of care to any person whose presence on the premises’,1 ‘including the careful
and careless’.2 In my opinion, the judge was right because Sandra was a pedestrian on the
camping ground and she was aware of the existence of the culvert. Furthermore, the
relationship between Shire of Manjimup and Sandra falls within the “Occupier – guests”3
category of established DOC, thus satisfies the first requirement of tort of negligence.

The second requirement is whether the defendant’s conduct had breached DOC. Regarding
the probability of harm, the judge pointed out that there was a significant probability of harm
occurring. I agree with the judge that the probability of harm was high because the pathway
between the white post and the culvert was narrow, and the disappearance of the spotlight at
the time of the incident had exposed Sandra to a risk of stepping into the culvert. Even with a
torch, the perception would not be clear enough to avoid the culvert at night. Next, the likely
seriousness of harm was medium as the judge mentioned that the consequence from falling
was significant, which had been proven by Sarah’s injury. However, the accident would not
lead to death. Hence, the likely seriousness of harm was medium. Furthermore, the cost of
taking precautions was low, as the judge concluded that there was no real burden to take
precautions in response to the foreseeable risk. It was reasonable to hold that the defendant
should have barricaded off the culvert area, blocked the culvert with a metal lid, or put
warning signs to notify the presence of the hole. Hence, the cost of taking precautions was
easy and cheap. Finally, the judge did not mention the social utility of the defendant’s
conduct. In my perspective, the social utility was low because there was not much usefulness
in not covering the culvert and not alerting others about the presence of the culvert. Overall, I
agree with the judge’s decision that the defendant had breached its DOC because the
defendant did not do what a reasonable man would have done.

For harm caused by breach, the judge applied the “but for” test4 to decide whether the
defendant’s behaviour had caused the plaintiff ‘s injury. If we remove the defendant’s
conduct, which was not taking precautions against a risk of harm, the plaintiff would not fall
into the hole and be injured. Therefore, causation is established and the “but for” test is
satisfied. Moreover, the judge concluded that Sandra has not been contributorily negligent. I
agree with the judge because Sandra was aware of the culvert since she was using a torch to
illuminate her path to walk over the culvert itself. Furthermore, there was no other evidence
that Sarah was doing anything but keeping a lookout for her safety.

Altogether, the plaintiff won the case. After considering all evidence, I agree with that
decision because the defendant failed to eliminate all danger due to inadequate lighting and
the nature of the danger in the area near the culvert.

1
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at 263 [17].
2
Shire of Gingin v Coombe [2009] WASCA 92 at [61].

3
James (2017), Business Law 4th edition., page 220.

4
Yates vs Jones (1990).

IV. Conclusion
I believe that the judge ruled the case rightly and fairly. The Shire of Manjimup has
committed tort of negligence and is legally obligated to pay for relevant expenses for its
conduct.