Emery v Foot[1997] QCA 404

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 481 of 1997

Brisbane

[Emery & Anor. v. Foot & Anor.]

BETWEEN:

JAMES ERIC EMERY and

KATHRYN MARY EMERY

(Defendants) Appellants

AND:

ALEXANDER JOHN FOOT and

JUDITH FOOT

(Plaintiffs) Respondents

Davies J.A.

Pincus J.A.

Cullinane J.

Judgment delivered 7 November 1997

Separate reasons for judgment of each member of the Court; all concurring as to the orders made.

APPEAL ALLOWED. ENTER JUDGMENT FOR APPELLANTS AGAINST THE RESPONDENTS WITH COSTS HERE AND BELOW.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 481 of 1997

Brisbane

Before Davies J.A.

Pincus J.A.

Cullinane J.

[Emery & Anor. v. Foot & Anor.]

BETWEEN:

JAMES ERIC EMERY and

KATHRYN MARY EMERY

(Defendants) Appellants

AND:

ALEXANDER JOHN FOOT and

JUDITH FOOT

(Plaintiffs) Respondents

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered 7 November 1997

I have read the reasons for judgment of Pincus J.A. and Cullinane J.  The latter has set out in detail the facts on which the learned trial Judge found the appellants to have been in breach of a duty of care to each of the respondents causing each of them personal injury.

I agree with Cullinane J. that the critical finding made by his Honour was that, in effect, because of  the rot which Mr. Payne pointed out to the male appellant, the deck gave rise to a foreseeable risk of injury to persons such as the respondents who, with about twenty others, were on it within a few days of Mr. Payne's inspection.  Unless that finding can be sustained the appeal must succeed.  Mr. Payne, who was a qualified carpenter, did not think that it posed any such risk and there was no evidence to the contrary.

The finding therefore cannot be sustained.  There was no basis other than the rot for a conclusion that the deck posed a foreseeable risk of injury to persons using it over the period shortly after Mr. Payne's inspection;  and it was common ground that the deck collapsed from a cause unrelated to the rot.

I agree with the judgment and orders proposed by Cullinane J.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 481 of 1997

Brisbane

Before Davies J.A.

Pincus J.A.

Cullinane J.

[Emery & Anor. v. Foot & Anor.]

BETWEEN:

JAMES ERIC EMERY and

KATHRYN MARY EMERY

(Defendants) Appellants

AND:

ALEXANDER JOHN FOOT and

JUDITH FOOT

(Plaintiffs) Respondents

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 7 November 1997

I have read the reasons of Cullinane J in which the nature of the case is fully explained.  The primary judge found, in effect, that the collapse of the appellants’ timber deck which caused the respondents’ injuries was caused by deficiencies in the construction of the deck;  the joists which supported the floor boards were inadequately secured.  But there was no evidence that the appellants were aware of this condition of the joists, which the judge held could not be detected either looking down on the deck or looking up at it from below.  Further, the judge held that a young carpenter (Payne) who inspected the deck within the week before it collapsed at the request of the appellant J E Emery, drew that appellant’s attention to some rot in a joint, but in Payne’s opinion, which the judge was apparently prepared to accept, Payne did not think the rot he observed had anything to do with the collapse of the deck, nor did he think the deck was in imminent danger of collapse.

The judge held that a reasonable person in the appellant’s position would, knowing of the rot, have caused a more thorough investigation of the deck to be made than that which Payne had made;  at least implicitly, the judge held it was negligent not to have caused this to occur before the deck was used again in any substantial way.

Precisely what Payne observed in the deck and told the appellant J E Emery about is a matter of importance.  Payne said that he was asked by the appellant J E Emery to look at the deck with a view to extending it.  Initially, Payne gave evidence that he pointed out "rot and decay . . . underneath the joist . . . " at the end furthest away from the house.  He said "you could start to see some decay in the timber on the main face of the bearer and the joist . . . " and that it had dropped no more than 10 millimetres.  Payne said he told Emery " . . . it had started to rot . . . " and in subsequent discussions spoke as if he saw rot at only that one point, causing a 1 centimetre movement in the joist.

Subsequently, however, Payne said that he told Emery " . . . there was some rotting members, timber members, there and they needed to be replaced".  Payne also said, as I understand his evidence, that he told Emery that the deck could not be extended using the existing structure because of the way in which it had been built.  Then his evidence included the following:

"And these conversations were all held before the-----?--  Yeah.

-----before the incident?--  There were.  After the incident as well, Jim still wanted to extend the deck and things like that.

In terms of what you’ve just told me about the entire structure needing to be replaced?-- Yeah.

Was that the conversation before the incident?-- Yeah.

All right?--  Yeah.

Can I-----?--  Can I just be a bit more specific?  Just the bearers and the joists were the main things.  Like----- " 

Counsel’s reference to "what you’ve just told me" seems to be a reference to the immediately preceding discussion, in the course of which Payne had said that it was not possible to extend the deck using the existing structure.  But the last answer, including the expression "Just the bearers and the joists were the main things" could mean that Payne was referring back to his previous evidence that "some rotting members . . . needed to be replaced".

In cross-examination the question whether Payne intended to convey that he saw rot in one joint or, on the other hand, more extensive rot was not really clarified, but Payne appeared rather to adhere to the evidence that he saw a drop - presumably the 1 centimetre drop previously referred to - in only one joist.

In the judge’s reasons, the critical passage dealing with Payne’s evidence is as follows:

" . . . he had inspected the deck from below with a view to it being extended.  He pointed out to the male defendant an area where timber was starting to decay in a housed joint at the extremity of the deck where the joist had dropped approximately 10 millimetres.  He told him rotting timber members needed to be replaced.  He told him that to extend the deck would require it to be demolished and built again.  He told him that bearers and joists needed to be replaced."

If Payne should be taken to have said that he observed a general state of rot in the bearers and joists such that extensive replacement of them was necessary, the judge’s conclusion, as to what a reasonable person would have done in response to Payne’s report on the deck, would be more difficult to attack.  But, apart from clearly saying that he observed rot at one end of one joist causing a 1 centimetre drop, Payne did not make any definite statement about what deterioration he observed.  Perhaps he meant to convey that since he specifically noticed rot at the end of one joist, it was a reasonable inference that rot might have started at other points.

It is unfortunate for the respondents that Payne, apparently a vague and unsatisfactory witness, provides the whole basis of the judge’s conclusion in their favour.  My own view is that it would hardly have been possible for the judge to find, on the basis of Payne’s evidence, that Payne saw and drew attention to rot, not merely at the single point of which he spoke, but more generally.  More importantly, the judge made no such finding;  also, the passage from the reasons I have quoted below, dealing with the question of inspection, implies that there was rot at only one point.

Considering the matter, as in my opinion one should, on the basis that the only defect to which Emery’s attention was drawn on Payne’s inspection was the 1 centimetre drop at one end of one joist, the question simply becomes whether it was negligent of the appellants not to take steps, immediately, to ensure that it was safe to use the deck, as it had been used in the past, for gatherings of their friends.  The judge did not go so far as to say that the reporting of any defect whatever should have induced immediate action of that kind;  his Honour must be taken to have considered that what Payne observed and reported would, by the reasonable man, have been thought to be serious enough to produce doubts about the safety of the deck.  In The Council of the Shire of Wyong v. Shirt (1980) 146 C.L.R. 40 at 47, Mason J remarked:

"In deciding whether there has been a breach of the duty of care the tribunal of 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."  (emphasis added)

The judge’s reasons include a quotation of this passage.  His Honour, a little later, found that the "minimum response of such a reasonable person" would be to make an investigation which, it appears, his Honour thought would have been:

" . . . an inspection by somebody with appropriate qualification which was focused on the safety of the deck to carry a reasonably large number of people in the light of rot in the bearer at the extremity of the deck . . . ".  

It has to be said that it is not clear why his Honour thought that a finding of rot in one bearer causing a 1 centimetre drop in that bearer would have necessitated the response mentioned.  An exterior timber deck, close to the Queensland coast, as was the deck in question, would no doubt, be likely to be found on inspection to have a soft spot or two;  what the judge has concluded is that the finding of one such spot is enough to require the owner to have the deck thoroughly (and promptly) inspected by a person with appropriate qualifications, not an ordinary carpenter like Payne.  That conclusion is not based upon any expert opinion, but depends upon his Honour’s own view.  I respectfully disagree;  I cannot think that a person who failed to be sufficiently alarmed by the finding of the slightly dropped bearer to act as his Honour mentions would be guilty of negligence.  In Zuvela v. Cosmarnan Concrete Pty Ltd (1996) 71 A.L.J.R. 29, the High Court re‑emphasised the obligation of courts of appeal not too readily to interfere with factual conclusions below.  In the present case the appellants’ argument does not seek to displace any primary finding, but only the conclusion, that what the appellants did not do - that is, have the prompt inspection mentioned - constituted an unreasonable reaction to what Payne had observed.  It is my respectful opinion that, treating the judge’s conclusion as an inference, "the available inference in the opposite sense to that chosen by the trial judge is so preponderant" that the appellants are entitled to succeed;  the expression quoted is from Zuvela quoting Barwick C.J. in Whiteley Muir & Zwanenberg Ltd v. Kerr (1966) 39 A.L.J.R. 505 at 506, a case which, according to Zuvela was followed in Warren v. Coombes (1979) 142 C.L.R. 531.

For these reasons, I agree with the orders proposed by Cullinane J.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 481 of 1997

Brisbane

Before Davies J.A.

Pincus J.A.

Cullinane J.

[Emery & Anor. v. Foot & Anor.]

BETWEEN:

JAMES ERIC EMERY and

KATHRYN MARY EMERY

(Defendants) Appellants

AND:

ALEXANDER JOHN FOOT and

JUDITH FOOT

(Plaintiffs) Respondents

REASONS FOR JUDGMENT - CULLINANE J.

Judgment delivered 7 November 1997

The appellants appeal against a judgment in favour of the respondents based upon a finding of negligence relating to the state of their premises on 8 January 1994. The respondents sustained injuries whilst at the appellants' premises on that date.

The premises concerned were a dwelling at Sunshine Beach. The respondents were two of a number of guests at the premises on that day attending a party for the male appellant's birthday. The respondents, together with other guests, were on an exterior timber deck attached to the dwelling when it gave way. His Honour found that there were 20 people on the deck when it collapsed.

The appellants had purchased the property in about 1986. The deck was erected at that time.

His Honour found that the probable cause of the deck's collapse was the inadequate nature of the support of the outer part of the deck. This was because the joists were housed in shallow rebates in a bearer and nailed through the bearer into the end grain of the joists. There was as his Honour found:

“Minimal withdrawal resistance to a joist moving out of its housing in the bearer and only minimal movement was required for this to happen.”

He went on to find that the movement sufficient to cause this probably occurred when a number of people on the deck had been in the vicinity of or were leaning against the handrail.

Part of  Exhibit 13 which is an engineer's report shows in sketch form the manner in which the joists were supported by and attached to the bearer. The finding of the inadequacy of the nature of the support of the outer part of the deck was not the subject of any challenge before this Court on appeal.

His Honour found that there was no evidence that either appellant was aware of the inadequate fastening at the extremity of the deck and also found:

“It could not be detected from above standing on the deck or by looking up at the  deck from below.”

His Honour's finding in favour of the respondents resulted from his acceptance of the evidence of a witness one Payne.

Payne is a qualified carpenter who was staying with the appellants. In the week prior to the accident the male appellant spoke to Payne about a possible extension of the deck and in the course of this discussion inspected the deck from below with the male appellant.

His Honour found at pp.214 and 215:

“In the week preceding at the request of and with the male defendant he had inspected the deck from below with a view to it being extended. He pointed out to the male defendant an area where timber was starting to decay in a housed joint at the extremity of the deck where the joist had dropped approximately 10 millimetres. He told him rotting timber members needed to be replaced. He told him that to extend the deck would require it to be demolished and built again. He  told him that bearers and joists needed to be replaced. He was unable to see the depth of the housing joints. He was unable to see how the joists were otherwise secured.”

Payne inspected the deck after it had collapsed. His opinion as to the cause of its collapse coincided with that of an engineer called for the appellants and was as his Honour found and as has already been set out.

At p.216 his Honour in the course of his judgment said:

“Payne expressed the opinion that the rot in the bearer and the dropping of the joist had nothing to do with the collapse of the deck which he said occurred because the joists weren't sitting in the housed joints in the bearer far enough. He said that he had not thought the deck was in imminent danger of collapse.”

In the course of cross-examination Payne gave the following evidence at pp. 54 and 55:

“As far as any problem that might have been created by this rot was concerned, that was simply something that you would detect as time went by, is that right?-- Yes, it's an ongoing thing. Once something starts to rot, I mean there is (sic) treatments you can do for it, but it's just an ongoing process.

Right. But it's certainly nothing that would have produced this catastrophic as you say, trapdoor effect?-- No, I don't think so. There was still - like after when I pulled the deck down and sort of chopped it all up there was still like a good 110 mil of decent timber in the joist itself.

BENCH: That's supporting the bearer?-- Yeah, that was checked into the bearer itself.

Yes?-- Yep.

...

And I suggest to you that the only result of your pre-accident inspection was to say that the deck could be extended?-- No, I did point out the rot and I did also tell Jim, that the deck could be extended if he wanted to rip it down and build a complete new one. Because you need new joists, new bearers. I mean the posts might have been all right, but to do that, you would have had to have replaced everything.

There was certainly nothing that you told to Mr Emery or for that matter Mrs Emery to put them on their guard, on notice, that the deck was in any sort of imminent danger of collapse?-- No, not collapse, I just pointed out the rotting timber.

And you yourself, even though you didn't say anything to them, didn't believe there was any imminent danger of collapse after you'd inspected it?-- No.”

It is not entirely clear whether Payne saw rot in only one of the joists or whether he saw more extensive signs of rot. There are some passages in the evidence of Payne which suggest he observed rot in more than one place. On the other hand there are unequivocal references in other parts of his evidence to a single joist and bearing (see p.44 ll.30-60). However this is not, to my mind, a matter of any critical importance.

His Honour found that the rot which Payne pointed out to the male appellant gave rise to a risk of the collapse of the deck and thus an injury to persons who might be on it “which was not far fetched or fanciful” (referring to the judgment of Mason J In Wyong Shire Council v Shirt (1980) 146 CLR 40, at 47-48) and went on to find that this risk required an appropriate response by the appellant. I will return to this finding shortly.

His Honour went on then to make the following findings at p.218 and p.219 of the record:

“I find that the minimum response of such a reasonable person would be to make reasonable investigation to ensure the deck was safe to carry a number of people and until the result of those enquiries was known, keep people particularly a number of people at one time off the deck. There is no evidence either occurred. More particularly there is no evidence which I accept that the male defendant made any such investigation either himself or by Payne or any other suitably qualified person.

What was reasonable investigation and had it been made, would it have prevented what occurred? To address the second question first it would have depended on the extent of the investigation. A cursory investigation would probably not have revealed the method of fastening of joists to the bearer. A more thorough investigation probably would have. I think it probable that an inspection by somebody with appropriate qualification which was focused on the safety of the deck to carry a reasonably large number of people in the light of rot in the bearer at the extremity of the deck would probably have included a closer inspection of the housing of the joists into the bearer and of the security of their fastening.

In all the circumstances on balance I find the latter type of investigation was that required in discharge of the defendants duty of care. Such an investigation would not have been difficult or inconvenient nor would it I expect be expensive. On the other hand collapse of the deck with people on it had the potential to cause considerable harm.”

An occupier's duty is to take reasonable care to avoid a foreseeable risk of injury to persons entering upon his/her premises in the circumstances in which the respondent did so here.  See Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479.

The duty does not require an occupier to inspect premises for the purpose of discovering unknown and unsuspected defects. See Stannus v Graham (1994) Aust Torts Rep 61,561 at 61,564 per Handley JA.

In my view, the finding that the condition which Payne pointed out to the male appellant posed a foreseeable risk of injury to persons entering upon the premises at that time or within a few days thereafter and the findings which were dependent upon this, cannot be supported.

The cause of the collapse was the inadequate means of support of the deck at its outer extremity. The situation was not known to and could not be seen upon an inspection by the appellant. It may be that in the long term the rot left untouched would have progressed to a stage where it may have posed a risk of injury to persons who went onto the deck. It may also be accepted that a property owner acting in his own interests might find it prudent to attend to this sooner rather than later. However the evidence does not suggest that the appellants had any reason to believe that the condition which Payne observed posed any risk of injury to persons coming onto the deck nor does it suggest that there was in fact any such risk. Payne had inspected the deck but did not suggest to the male appellant that it was dangerous and in view of his evidence it can be inferred he would, if asked, have told the male appellant that it was not.

His Honour having made a finding, which cannot in my judgment stand, proceeded to find that the appellants ought to have taken steps to preclude persons from the deck until investigations by appropriately qualified persons were carried out, which investigations would probably have revealed a defect that his Honour found was the cause of the accident. This process of reasoning led to the conclusion that had the appellants taken steps to address a defect which could not on the evidence be regarded as posing a present risk of injury, a risk of injury from another unsuspected defect would have been avoided and thus that the injury arising from the unsuspected defect was caused by a failure to address a known defect.

This process of reasoning depends upon a finding of fact which for reasons already given cannot in my view stand and this is sufficient to dispose of the appeal.

However it seems to me that even if the condition which Payne observed did give rise to a foreseeable risk of injury to someone coming on the deck and accepting the conclusion that as a consequence of the steps which might be required of an occupier in addressing this risk the injury to the respondents which arose from a different and unsuspected fault might in the events that happened have been avoided it is impermissible to ascribe a causal connection between the breach of duty arising from one defect which was known to an injury arising from another which was not on the evidence known or foreseeable. The position will be different if the risk which was realized was so closely connected to the risk to be guarded against as to be able to be regarded as being within the scope of that risk but that is not the case, in my view, here.

I would allow the appeal and enter judgment for the defendants with costs to be taxed. I would order the respondents to pay the costs of the appellants of the appeal to be taxed.