Occupiers: old Australian Standards and duty to audit or not

Smith v Body Corporate for Professional Suites [2012] QDC 49

Issues: liability and quantum – in particular whether there was a breach of duty to ‘audit’ the glass and comply with later Australian Standards and apportionment for being intoxicated.

Overview: the plaintiff on Friday 21 December 2001 returned to her work building at about 8:30pm after a day of drinking heavily at a Christmas function and post. It was found her likely BAC concentration was in the order of 2.6%. Robin QC DCJ preferred the evidence that in such a state she stumbled and then fell in glass panel, which shattered. It was accepted that the glass complied with the relevant standard in 1971 at the time it was installed, but since there had been 2 further standards, which if complied with would have reduced the extent of the injuries.

Robin QC DCJ:

[8] The parties agreed that the test for liability of the defendant is that propounded by Mason J (Stephen J and Aickin J agreeing) in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47-48:

“A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v Stone (42), may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being “foreseeable” we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable.

In deciding whether there has been a breach of the duty of care the tribunal fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.

The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.”

and by Deane J in Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614 at 622-63 endorsed by four judges in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488:

“… 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 plaintiff’s 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.”

[9] Five judges in Thompson v Woolworths (Queensland) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234 at 246 assert:

“The obviousness of a risk, and the remoteness of the likelihood that other people will fail to observe and avoid it, are often factors relevant to a judgment about what reasonableness requires as a response. In the case of some risks, reasonableness may require no response. There are, for instance, no risk-free dwelling houses. The community’s standards of reasonable behaviour do not require householders to eliminate all risks from their premises, or to place a notice at the front door warning entrants of all dangers that await them.”

– an approach foreshadowed in the New South Wales Court of Appeal in Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 at paragraph 83:

“The proposition that a mobile scaffolding platform 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. It is a fallacious reading of Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47-48 to conclude that it holds that if the risk of injury is reasonably foreseeable and removal of that risk by simple and cheap measures is possible but not undertaken, there is a breach of duty. Mason J left open as the response of a reasonable person the course of doing nothing instead of adopting the simple and cheap measures: Council of the Municipality of Waverley v Lodge [2001] NSWCA 439 AT [29].”

[10] Sheet or panel glass is a notorious potential hazard, given its propensity to shatter into shards capable of seriously cutting the person whose moving body is the mechanism whereby the glass breaks. All too often that body’s momentum propels it through a curtain of dangerously sharp points or edges. A jurisprudence has developed bearing upon the present plaintiff’s essential contention that the defendant’s duty to her and others was to have an audit of its premises covering at least the safety of the panel she fell into, the implication being that an audit would have advised replacement of the offending panel with laminated or some equivalent safety glass. It is probably a reasonable assumption that an audit would have recommended upgrading the panel installed in that location to meet current standards (or at least considering why not to do so). On the balance of probabilities, the plaintiff would not have been hurt had such upgrading occurred.

Discussion at paragraphs [11] – [26] of the authorities…

[35] I agree that the decision to upgrade is important, as it brought about an occasion on which the defendant might have reviewed the general location to identify deficiencies or defects that were unknown and unsuspected, or respects in which upgrading to meet then current standards for new work might be advisable or possible. So proceeding would have been reasonable, but so, in my view, was doing nothing more than was done, under the guidance of competent architects. The use made of the area may have been heavy, it may have been crowded or busy at times, but there is nothing to suggest that those frequenting it would have been unruly, like schoolboys who might stampede or jostle in ways risking damage to the glass panel – or to mistake it for an open doorway, ex cetera. The students the court heard of were at tertiary level, and one would think serious about the courses being undertaken, which they were likely to be paying for personally and would “congregate” or proceed in orderly ways. The swing doors were hung so that to get through them one had to be well away from the glass panels alongside. It is difficult to identify any failure to provide “appropriate, safe access”.

Expert evidence

[36] The plaintiff was permitted to call Dr Casey, a well qualified mechanical engineer, as an expert in the behaviour of glass, over a defence objection. A similar objection to the evidence of Mr Justin O’Sullivan as an ergonomic/safety expert was successful. Mr O’Sullivan is a physiotherapist by training who has wide experience as an accident investigator and adviser on safety matters. He has been allowed to give evidence on many occasions, assisting the court to understand what mechanisms caused particular accidents, and how preventive steps might have been employed. My impression is that his focus is usually on the limitations of human abilities from the point of view of coping with the environments in which people move, overcoming emergencies that may arise in particular situations: he deals in slips and trips, surfaces that are slippery, uneven or steep, the need for handrails, guardrails and the like and to avoid distractions that may compromise safety. No precedent was unearthed in which his or similar evidence had been let in over objection. He was not shown to have experience in the behaviour of glass which would assist an understanding of how the plaintiff’s accident happened. In this matter, it seemed to me he was doing little more than state the obvious, or, worse, answer the question that the court must answer. One would expect him in the circumstances to opine, as he did, that the defendant ought to have ensured its building complied with Australian Standards from time to time for new construction. His evidence was not needed to prove AS1288, which became an exhibit by consent.

[37] It is convenient to adopt the summary of the expert evidence admitted which was set out in the plaintiff’s written outline:

“8.3 Dr Casey confirmed that the use of 6mm annealed glass for the original construction of the building in 1971 did not contravene the relevant Australian Standard at that time.

8.4 Dr Casey noted the standards relating to glass in buildings had been upgraded twice since the original construction of the building (AS1288-1973 and AS1288-1994) prior to the date of incident.

8.5 Dr Casey considered from a safety point of view it would have been prudent to consider upgrading the glass panel as part of the renovation process. He based this submission on:

(i) The Standards relating to glass in buildings has been upgraded twice since 1971;

(ii) Increased personnel traffic around the glass panel which sits prominently at the front of the building;

(iii) Students loitering at the front of the building.

(iv) The glass panel would have become more brittle over the thirty years it had been installed.”

8.6 Dr Casey considered that if safety glass had been used the plaintiff would not have been injured to the same extent.”

[38] There is no reason to doubt those opinions. The difficulty for the plaintiff is that the upgrading of Australian Standards is not shown to be a matter of common knowledge or something of which the defendant was aware (or should be taken to be aware) by 2001. I have personal experience when called upon to replace broken glass of being subjected to inquisition by suppliers of cut glass like O’Brien Glass to ensure that any purchase is not going to be used in certain applications or below certain benchmark heights unless of appropriate strength. The message is one of higher standards coming into play as the years pass. One cannot generalise from such individual experiences to assert what may be taken to be common knowledge. Consideration (iv) is “news” to me, although unsurprising; it was not shown that the phenomenon became a matter of general knowledge at any time, or particular knowledge (even suspicion) in the defendant by 2001. I understand that brittleness is the nature of glass. Considerations (ii) and (iii) while arguably relevant depending on how “prudent” one is, strike me as a counsel of perfection, rather than as pointing out any risk of significance, given that for all the evidence of increasing user numbers, students congregating and nightclubs in the vicinity, there had been no incident or difficulty with the glass panels for 30 years. I am not persuaded that the defendant ought to have suspected they were any less appropriate in their location than at the time of their installation.

[39] I agree with the plaintiff’s submission (paragraph 6.5) that whether she was merely leaning on the glass panel (as she says) or stumbled backwards into it (as I find in reliance on Mr Angell), the impact would appear “not significant” and “the consequences were surprising”. This observation may require qualification given the judicial assessments of impacts causing serious injury to plaintiffs as minor in a number of the authorities discussed above; in one case it was “touching” by the hand of an 11 year old girl. The plaintiff’s account of leaning against the glass for a period of a minute or more is impossible to accept. It savours of reconstruction and is inconsistent with Mr Angell’s version of “a stumble back … a stumble and then a fall. Couple of – couple of steps and then a fall … it wasn’t like she hit it with the full velocity and force of her entire body”; his version is supported Fiona Koppens’ version (exhibit 20) that the plaintiff “with her head down looking in her handbag … lost her balance. She then took one step backwards towards the glass and at that time she lent back on the glass. Her body weight would have been on the glass … she certainly did not crash against the glass.” If those versions are to be held inconsistent, I would prefer Mr Angell’s, on the basis of sobriety enhancing his comparative ability to take in and recall what happened.

[40] There is absolutely no evidence to this effect of anything relevant happening, but I have speculated that the glass panel may have suffered some damage or weakening prior to the plaintiff’s accident, maybe in the last hour or so, maybe when the renovations were done. Hypothetically, it may have been the case that there was framing for the replaced doors that provided physical support or backing for the adjacent glass panels, support removed when new doors differently hung went in. The court has to make determinations on the evidence alone and there was none about such aspects. Indeed, exhibit 25, which is a brief to the architects, rather suggests that the front doors were moved closer to the footpath, including as specification items:

“2.1 Should discourage loitering on common property … .

2.3 Prevent general public access after hours.”

The summary is:

7. Summary

In this stage of the building upgrade / development we are seeking to greatly enhance the first impression value of the property. This will involve upgrading the façade, front common area and foyer, as well as address some existing issues such as improper use of the common area at the front of the building.

We are looking for a first stage enhancement that will be a low maintenance option that will age well, 10 – 15 yrs, and integrate into future development. It should take into consideration the need to better control the usage of the frontage common area, and lend itself to possible commercial uses of the space. It should provide good, clear access to the building (There is a large volume of people accessing building), wheelchair access must be maintained and disabled toilet facilities incorporated.

We would like some innovative ideas as to how we can achieve these general requirements. Your submission should include costings, timeframes, and strategies for how this work is to be carried out in a way that causes minimal disruption to tenants.”

[41] To an extent, the conclusion that there has not been shown breach of the duty which I am satisfied that the defendant owed a person such as the plaintiff is one I am “driven to” by the authorities. Cf Goddard Elliott (a Firm) v Fritsch [2012] VSC 87 at paragraphs 832-833. This court may not “ignore, doubt or qualify” a rule emerging from the ratio decidendi of a High Court decision (Garcia v National Australia Bank Ltd [1998] HCA 48; (1998) 194 CLR 395, 418, as explained by Kirby J in “Precedent law, practice and trends in Australia”, (2007) 28 Australian Bar Review 243, at 250). There being “a common law of Australia, rather than of each Australian jurisdiction” (Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89, 52) similar respect is due to decisions of appellate courts of all States. See Patrick Stevedores Holdings Pty Ltd v DPP & Anor [2012] VSC 31 at paragraph 80. The authorities discussed above do not mean that every plaintiff cut by glass that does not meet the current Australian Standard (or equivalent requirements) will fail. The plaintiff did not make submissions about (but did supply a copy of) Hunt v Roads and Traffic Authority of NSW [2010] NSWDC 88, in which the plaintiff succeeded against both owner and manager of rental premises. He was descending the front stairs, and tripped on turning to go back up, putting his hand through the glass front door. The defendants (“a sizeable commercial agency with a sizeable property portfolio”) were treated as being on notice of relevant risks when a bedroom door in the residence was broken in 1998 and replaced with annealed glass contrary to the then standard. The 1998 job should not have been entrusted to the cleaner, in the court’s view. A suitably qualified glazier (who would have installed similarly priced safety glass, thus highlighting an issue whether glass in other doors ought to be replaced) should have been engaged.[1]

Contributory negligence

[42] The defendant submits that (in line with some of its authorities referred to elsewhere) any damages the plaintiff recovers should be cut by 50% for contributory negligence on her part, in failure to take reasonable care for her own safety. It is asserted that her voluntary intoxication made her unsteady on her feet. The court’s finding is that she stumbled into contact with the glass panel rather than was leaning against it. That intoxication in like circumstances is pertinent seems obvious, as illustrated by Commissioner of Railways (New South Wales) v Young [1962] HCA 2; (1962) 106 CLR 535, where Taylor J said at 550:

“One other matter remains to be mentioned. The substantial issue in the case was whether the death of the deceased resulted from the negligence of the applicant’s servants. For the respondent, it was said, that the train which he was attempting to board commenced to move whilst he was in the act of boarding it an that, as a result he was thrown down between the railway carriage and the platform. On the other hand, the appellant asserts that the deceased ran after the train and attempted to board it whilst it was moving. In these circumstances the suggestion was made that the question whether deceased was to some extent under the influence of alcohol was quite irrelevant. My view is that is that it was not irrelevant. It may have been an issue on the fringe of the case but the appellant was quite entitled to give evidence as to how the accident happened. I do not, for a moment, suggest that any inference that the deceased ran after the train could have been drawn from fact, if it had been proved, that he was under the influence of alcohol at the time. Nor could a conclusion that the deceased was to some extent affected by liquor have operated to disentitle the respondent to a verdict. But it was quite open to the appellant to prove the circumstances in which it was alleged the accident happened. These were, according to the appellant, that the train was moving when the deceased attempted to board it and though he may have got safely aboard if his judgment had not been impaired, the accident was explicable partly because of the movement of the train and partly because the deceased’s judgment had been impaired by alcohol.”

[43] The opposing contention is that it is not open to find contributory negligence where one of the very risks that the defendant had to guard against materialises is not apt in the circumstances. The situation was the same in Romeo v Conservation Commission of the NT (1998) 192 CLR 431 where “it was reasonably foreseeable that a person such as the plaintiff, affected by alcohol … might [be] … inadvertently walking … over the cliff … [a risk] sufficiently real to require consideration of what precautions should be taken” per McHugh J at [460-61]. The judges who would have held the defendant liable in negligence either held that there was contributory negligence (Gaudron J at 459) or that there should be a further trial on that issue (McHugh J at 463).

[44] The plaintiff has not established negligence against the defendant, but it has established a lack of proper care by her for her own safety. If the defendant were liable, damages should be reduced by one third. Mr Morton supplied references to decisions fixing intoxicated persons who got injured with contributory negligence such as Coles v South Tweed Heads Rugby Club (2004) 217 CLR at 469 (40 per cent), referring particularly to general observations of Gleeson CJ at [13], and Kilminster v Rule (1983) 32 SASR 39 (35 per cent).

Brisbane Barrister – David Cormack

 NB: appeal dismissed – Smith v Body Corporate for Professional Suites Community Title Scheme 14487 [2013] QCA 80

 

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