No duty to inspect for hidden defects in residence – claim dismissed for a fall from a balcony

 Palmer & Anor v Finnigan & Ors [2010] QSC 64

Her Honour Justice Lyons dismissed the claim of the plaintiff on the basis the defect was “hidden” and there was no duty on the defendants inspect for such latent faults.

The facts were uncontroversial. The injured plaintiff was at the home of the first and second defendants to dye their carpet. He was injured whilst passing a hose from the ground floor to the first floor when the balustrade he leant on for support collapsed.

The incident occurred on 10 July 2001 and so pre-dated the Civil Liability Act 2003 (Qld).

A joint expert report was obtained and to the extent there was agreement the findings were:

[11] A “Joint Report of Experts”[5] was prepared in May 2009. The experts were Justin O’Sullivan, Dr Justin Ludcke and Dr Frank Grigg. The Joint Report indicated that there was agreement on a number of uncontroversial factual matters which included the following:

(i) The balustrade consisted of four support posts with top and bottom railings with infill balusters;

(ii) The four support posts were attached to the floor of the balcony with eight fasteners passing through base plates welded to the bottom of the support plates;

(iii) All eight fasteners failed following the incident;

(iv) The balustrade had a dog-leg and was not straight;

(v) The balustrade was most likely constructed from aluminium but it cannot be ruled out that it was constructed from steel;

(vi) If the balustrade was constructed from aluminium, some flexibility or springy movement would be expected at the top of the balustrade due to the absence of a fixing point;

(vii) There would be less flexibility if it was constructed from steel;

(viii) The base plates were not noticeably bent as a result of the balustrade failure;

(ix) A pull out force of 5.04 kN is considered a reasonable estimate to meet the design requirements of AS1170 (Part1 -1981);

(x) The method of attaching the balustrade to the floor of the balcony was inadequate to meet the loading requirements of AS1170;

(xi) The presence of a cracked tile does not necessarily indicate concerns of a structural nature;

(xii) Looseness of the balustrade relative to the balcony is likely to be the result of one or more fasteners being partially pulled out of the concrete and tile or one or more fasteners losing grip with the concrete and tile but remaining fully embedded in the hole whilst loose;

(xiii) Due to the method of fastening, the head of a bolt in a loose fastener may or may not protrude above a base plate;

(xiv) If there was looseness in the balustrade, the forces required to identify the looseness are likely to be significantly lower than the forces required to identify flexibility;

(xv) If the bolts were secure, the balustrade would appear to be flexible under the application of a moderate degree of outward force and the amount of movement would vary, depending on the magnitude of the force applied. The degree of flexibility is not able to be quantified without the dimensions and material properties of the balustrade. Some flexibility would be noted with the application of a 10kg outward force, but the deflection is likely to be measured in millimetres rather than centimetres; and

(xvi) The lack of any attachment between the top rail and side walls would have been readily apparent to a person with relevant knowledge (ie architects, engineers, builders, certifiers etc) during any visual inspection.

Her Honour Justice Lyons excluded a number of matters of opinion evidence and concluded the evidence to be:

[24] Having considered the evidence, I consider that the following factual matters were established on the evidence:

(i) neither defendant had noticed any problems with the balustrade on either balcony;

(ii) the balustrade appeared stable;

(iii) there had been no problems with either balustrade during the 10 years the defendants were in occupation prior to the accident;

(iv) the first defendant had noticed a cracked tile on the bedroom balcony;

(v) the plaintiff had provided a quote and viewed the premises prior to performing the work;

(vi) the plaintiff had tied a 10kg hose to the balustrade at the commencement of the work and had not noticed anything to indicate it was loose or unstable;

(vii) at the end of the work, the plaintiff untied the bottom strap connecting the hose to the balustrade and stood up. He leant on the balustrade in the process of doing this, but the precise position of his body relative to the rail is not known;

(viii) the experts agreed that the cracked tile did not indicate structural problems;

(ix) the balustrade was constructed with only base plate supports;

(x) there is no evidence that the Australian Standard required the balustrade to be fixed to vertical walls on either side;

(xi) the renovations had been carried out by workmen and the renovations to the premises had been approved by the third third party, the Gold Coast City Council; and

(xii) the balustrade gave way and the plaintiff fell, but the precise mechanism of the fall is not known.

[25] I do not consider there is any evidence that there was, in fact, any flexibility or looseness in the balustrade prior to the accident. There is no evidence that even if the balustrade was flexible or loose, that it was evident. There is simply no evidence of any looseness, instability or flexibility in the balustrade prior to the accident such that anyone noticed it, let alone became concerned about it. Neither is there evidence that the bolts were raised or loose.

[26] I do not consider there is any evidence that the defendants had noticed anything about the anchors, nor that they had any concerns about the anchor points or the integrity of the anchors prior to the accident. There was a single crack in the tile, but the agreement of the experts is that this was not necessarily cause for concern and the defendants did not, in fact, have any concerns because of this. I do not consider there was any reason for the defendants to doubt the integrity of the anchors on the balcony prior to the accident. The essence of the plaintiff’s case is that the balustrade must have been loose and it must have been observably loose. I am not satisfied that this has been established on the evidence before me.

[27] Accordingly, I am not satisfied that it has been established that the defendants were aware of any defects in the balustrade prior to the accident. Furthermore, I am not satisfied that it has been established that there were any warnings that there were such defects prior to the accident on 10 July 2001.

Duty

Her Honour applied Australian Safeway Stores Pty Ltd v Zaluzna:

[29] The relevant duty was discussed by the High Court in Australian Safeway Stores Pty Ltd v Zaluzna[15] and clearly the obligation on the defendants was to take reasonable care to avoid the risk of foreseeable injury to a person lawfully on the premises. In deciding whether there has been a breach of the duty of care it is necessary to determine whether a reasonable man in the position of the defendants would have foreseen that their conduct involved a risk of injury to someone like the plaintiff. If so, it is necessary to determine what a reasonable man would do by way of response to the risk posed.

[30] What is reasonable, of course, will vary with the circumstances of the entry onto the premises. In Zaluzna the High Court adopted the reasoning in Hackshaw v Shaw,[16] where Deane J held that:

“… it is not necessary, in an action in negligence against an occupier, to go through the procedure of considering whether either one or other or both of a special duty qua occupier and an ordinary duty of care was owed. All that is necessary is to determine whether, in all the relevant circumstances, including the fact of the defendant’s occupation of premises and the manner of the plaintiffs’ entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. A prerequisite of any such duty is that there be the necessary degree of proximity of relationship. The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member. The measure of the discharge of the duty is what a reasonable man would, in the circumstances, do by way of response to the foreseeable risk.” (my emphasis)

 

Her Honour confirmed that there is no duty to inspect for hidden dangers in residences:

[31] In Stannus v Graham[17] the NSW Court of Appeal held that an occupier of residential premises has no duty to inspect the premises for hidden dangers. Priestley JA stated:

“Before a person can make another legally liable for an accident such as befell Mrs Graham in the present case, the first person must show that the accident was caused by the failure of the other to take reasonable care, (Australian Safeway Stores v Zaluzna (1987) 162 CLR 479) or, if the injured person was a contractual entrant, by the failure of the other to make the premises as safe as reasonable care and skill could make them, (Watson v George [1953] HCA 41; (1953) 89 CLR 409). The second way of putting it may, since Australian Safeway Stores was decided, be the same as the first. Either way, the injured person must show some fault in the other, consisting of a failure to take reasonable care, causing the damage.

In the present case I cannot see that the facts in evidence at the trial showed any fault on the part of the owner of the premises. Mrs Graham and her husband said the step on which she fell was loose on the day she fell. There was no evidence that it had been loose before then. There was evidence from which it appeared it had not been loose before then. There was certainly no evidence that either Mrs Stannus or her caretaker knew or should have known the step was loose before the accident. Ordinary experience does not suggest the steps were of a kind needing special testing or inspection from time to time, or needed a handrail, nor was there any evidence to that effect.”

[32] The decision of the NSW Court of Appeal in Short v Barrett,[18] involves a very similar factual scenario to the present. There, a timber deck gave way causing a guest at Dr Short’s birthday to fall to his death. The owners had bought the house some time before and the balcony existed at the time of purchase. The rails on the front of the balcony were bolted to metal posts, but the rails at the north and south ends were not bolted at any point and where the rails met the fixing was by nails only. Meagher JA held in relation to the owners:

“Neither was a tradesman, and neither was a skilled house handyman. Neither had anything to do with the building of either the house or the balcony. Neither understood carpentry or similar matters. Neither had actual knowledge of how the balcony was constructed, or of whether nails or bolts had been employed at its several junctions. It had never occurred to either of them that any part of the balcony might be unsafe.

It must be, and was conceded that both Dr and Mrs Short knew that: the purpose of railings around a balcony is not cosmetic but to prevent people from falling off; if anyone did fall he would sustain serious and possibly fatal consequences; and, in a general sense timber deteriorates when exposed to weather. It must also, I think be conceded that if a person were minded to undertake the task of ascertaining whether the junctions were affixed by bolts or nails he could have discovered that fact; however no occasion ever arose for essaying this task. In my view, a householder in the position of Dr and Mrs Short is not acting unreasonably in taking their house as they find it, assuming it to be perfectly safe unless and until they actually know it is unsafe or else receive a warning that it may be unsafe.”

[33] I consider that the authorities support the submission that the defendants were under no duty to inspect their premises for the purpose of discovering unknown or unsuspected defects before the plaintiff entered the premises.[19] In King v Stewart[20] a defect in a balcony rail was not visible to a home owner. In that decision, the NSW Court of Appeal found that there was no liability as a result of a failure to seek expert advice in relation to the safety of the railing because there was no reason to believe that such advice was required. The Court of Appeal confirmed the primary judge’s findings, with Sheller JA (with whom Priestly JA agreed) stating that:[21]

“…in the absence of some indication of instability or a bolt or a bracket standing proud or some other indication that something might be amiss he did not think that an ordinary reasonable householder possessing ordinary reasonable skills at minor household repair tasks, such as Mr Stewart, would be or could reasonably be expected to engage and pay for expert advice in relation to a problem he had no inkling existed.”

[34] Similarly in the NSW Court of Appeal decision of Baker v Gilbert,[22] Ipp JA held that it is only when an occupier knows or ought to know of the existence of a defect that the obligation to make repair is enlivened. It would seem therefore, that it is only in cases where there are indications that something might be amiss such that they constitute “ample warnings” that the obligation to repair arises.[23] This approach was also endorsed in the Queensland decision of Emery & Anor v Foot & Anor.[24]

[35] In Jones v Bartlett[25] the High Court held that the landlords were not in breach of their common law duty to the tenants’ son. It was specifically held in that decision that there was no duty to take “affirmative action” in relation to a glass door which was the cause of the injury in that case because it was not a dangerous defect and that a system of inspection for defects is not required by a landlord.[26] Although this decision is distinguishable on its facts in that a lease existed and it was not merely the occupiers’ liability, the court determined that even a landlord should bear no greater common law burden than an ordinary householder. As Gummow and Hayne JJ stated in their joint judgment:[27]

“Mr Fryer (who was the appellant’s expert witness) gave uncontroverted evidence that an ordinary person could not tell whether glass was laminated safety glass or not. There was no evidence to suggest the respondents knew that the glass in the door was annealed; or that they knew of the risks involved in using annealed glass; or, indeed, that there existed different types of glass. Commissioner Reynolds also found that there was no evidence that the respondents knew of the Australian Standards. In such circumstances, ‘ordinary reasonable human conduct’ did not require the taking of steps to ascertain the existence of a dangerous defect which the respondents did not, and had no reason to, suspect might exist.”

[36] It is therefore clear that there are a number of cases which follow Australian Safeway Stores v Zaluzna. In 2003 in Baker v Gilbert[28] the NSW Court of Appeal reviewed the authorities and outlined the relevant legal principles where householders are the occupiers:[29]

“A review of the abovementioned authorities indicates that there is no rule of law to the effect that householders, who do not know of the existence of a defect in their property that might cause danger to lawful visitors – but who are aware of circumstances which would alert a reasonable person to the danger from the defect may, without negligence on their part, ignore the existence of the defect. The measure of the discharge of the duty of care owed by occupiers to visitors remains what a reasonable person would, in the circumstances, do by way of response to the foreseeable risk. The circumstances may well require, by way of reasonable response, an inspection of the property (or part of it), and a removal or repair of the defect.”

Claim dismissed:

[38] Whilst there was clearly a crack in one tile on the balcony, this was not indicative of any structural defects in the balustrade, neither was it indicative of any construction defects or design faults in the balustrade. The defendants were entitled to assume that the premises were safe. This conclusion is based on the following specific findings:

(a) there were no signs or any significant warnings indicating that there was any defect such that it was obvious to a normal householder;

(b) the balcony was rarely used because of its small dimensions and inferior outlook; and

(c) neither defendant had any relevant experience or training in safety, building or construction;

(d) the work on the balustrade had been carried out by tradesmen.

[39] On the basis of the principles outlined in Zaluzna, I do not consider that there was any legal obligation on the defendants to investigate hidden defects. On that basis, there was no duty to effect repairs, or to obtain a safety expert’s opinion as to the structural integrity of the balcony railing when there was no warning that there was a possible defect in the balustrade.

[40] The plaintiff’s claim must fail.

Comment

It is an interesting, albeit academic exercise to consider to what degree the decision might have been different if the relationship between the defendants and plaintiff was one of ‘master-servant’ or ‘business/undertaking’. In particular, by reference to section 28 of the Workplace Health and Safety Act 1995 (Qld), post 2003 and 2005 amendments; as against the background of the decisions of Parry v Woolworths Limited [2009] QCA 26, Bourk v Power Serve Pty Ltd & Anor [2008] QCA 225, Wilkinson v BP Australia Pty Ltd [2008] QSC 171, Calvert v Mayne Nickless Ltd  [2004] QSC 449 +and on appeal:[2005] QCA 263.

Cf: 

His Honour McGill SC DCJ in Treloar v Dache-Haven Pty Ltd [2001] QDC 44 at paragraphs 28 – 35 re: occupiers liability and a helpful analysis of the decisions in this area.

See also Green v Hanson Construction Materials Pty Ltd [2007] QCA 260 in respect of stairs and s.9(1)(a) and (b) of the Civil Liability Act 2003 (Qld).

Brisbane Barrister – David Cormack

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