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Smith v Body Corporate for Professional Suites Community Title Scheme 14487[2012] QDC 49

Smith v Body Corporate for Professional Suites Community Title Scheme 14487[2012] QDC 49

DISTRICT COURT OF QUEENSLAND

CITATION:

Smith v Body Corporate for Professional Suites Community Title Scheme 14487 [2012] QDC 49

PARTIES:

JODIE SMITH

v

BODY CORPORATE FOR PROFESSIONAL SUITES COMMUNITY TITLE SCHEME 14487

FILE NO/S:

3873 OF 2004

DIVISION:

Civil

PROCEEDING:

Claim for damages for personal injuries

ORIGINATING COURT:

Brisbane 

DELIVERED ON:

30  March 2012

DELIVERED AT:

Brisbane 

HEARING DATE:

5 - 7, 12 March 2012

JUDGE:

Robin QC DCJ

ORDER:

Claim dismissed

CATCHWORDS:

Negligence – claim against occupier of commercial building in central Brisbane – plaintiff employee of a tenant – after hours following staff Christmas party and socialising at a night club plaintiff (intent on entering) came into contact with a glass panel alongside main entry doors while fumbling for the key – glass shattered and she fell through it, suffering severe lacerations – glass panel complied with Australian Standards current when constructed in 1971, not with new standards – defendant allegedly negligent in failing to upgrade to new standard (requiring safety glass in the application) or conduct a safety audit – contention defendant ought to have so proceeded when relevant area of building was refurbished only months before accident to replace glass doors using safety glass – whether plaintiff guilty of contributory negligence because intoxicated and fell into glass panel as opposed to leaning on it for support – damages assessed – whether interest should be awarded for a reduced period on account of delay – whether Griffiths v Kerkemeyer damages available for “emotional support”.

COUNSEL:

Mr K. Wilson SC and Dr G. J. Cross for the plaintiff

Mr R. C. Morton for the defendant

SOLICITORS:

Colin Patino & Company for the plaintiff

Moray & Agnew for the defendant

  1. [1]
    The plaintiff was born on 9 April 1972. On 28 October 2004, not long before the limitation period expired, she commenced this claim for damages for personal injuries suffered by her in an accident that occurred on 21 December 2001 (upon the common property of a community title scheme at 138 Albert Street, Brisbane).  The defendant admits having statutory obligations to act reasonably in carrying out its functions under the Body Corporate and Community Management Act 1997 s 87(1), to administer, manage and control the common property and to maintain the common property in good condition for the benefit of the owners of the lots, but asserts that such considerations “are irrelevant to any duty owed by the defendant to the plaintiff and create no right in the plaintiff”.  “While it is true that obligations under statutory or other enactments have relevance to determine the existence and scope of a duty, it is necessary to exercise caution in translating [such] obligations … into a duty of care at common law.”  (Leighton Contractors Pty Ltd v Fox [2009] HCA 35 at paragraph 49).
  1. [2]
    The plaintiff suffered severe lacerations to her face, neck, arms and torso when cut by shards of a large glass panel forming a wall of the entrance to the defendant’s building, given that the swinging entrance doors were located in a small recess adjacent to the footpath in Albert Street.  When Dr Cross (junior counsel for the plaintiff) provided the court with a marked-up copy of Australian Standard AS1288-994 – Glass in buildings – Selection and installation (exhibit 35) without objection from the defendant’s side, it was accompanied by the tax invoice of O'Brien Glass for reglazing with 8.38mm clear laminated glass of the broken panel, the cost, (exclusive of an after hours call out to secure the premises) being $1,651.70.  The dimensions of the panel replaced were given as 2.842m (height) by 1.4m.  The work was completed on Christmas Eve.  The photographic exhibits suggest that part of the 1.4m width was inside the building behind the swinging glass doors, part outside the glass doors, forming a right angle with the glass “shop front” of the Backpackers Travel Centre running flush with the Albert Street frontage.  On the other side of the main doors was a similar arrangement surrounding the premises of a sushi bar.  It was common ground at the trial that at all material times for a fee of a couple of hundred dollars, O'Brien Glass would conduct a glass audit for a customer, identifying glass that failed to comply with current standards for new installations. 
  1. [3]
    At the heart of the plaintiff’s claim in negligence is the assertion that the defendant ought to have arranged such an audit (presumed to be one which would have recommended the replacement which happened three days later) to comply with its common law duty to act reasonably to guard against foreseeable risk of injury to her. The plaintiff complains (and the defendant admits) that over the period 17 September 1971 to 21 December 2001 no audits of the defendant’s premises were conducted to ascertain whether the glass wall or the glass entry doors complied with relevant Australian Standards or the “Building Code of Australia”.  The earlier date may be taken to coincide with the time of construction.  The offending glass panel was of 6mm thick annealed glass, and complied with such requirements or standards as were current in 1971.  I am prepared to assume that a glass audit would have recommended replacement in the way that perforce happened three days after the accident and that, had there been an accident leading to the replacement glass panel shattering (which I would count unlikely), the plaintiff’s injuries would have been far less serious. 
  1. [4]
    The plaintiff’s case is that in 2000-2001 work was done with the assistance of an architectural firm to renovate the building entrance, including by replacing the doors; the plaintiff failed to establish the disputed assertion that the architects advised that other glass in the premises should be to AS1288 standard (or that the defendant was aware of any particular risk associated with the glass), but that failure does not in my view deprive the refurbishment exercise of relevance as one of the factors to be taken into account when the court works out whether the defendant sufficiently complied with its common law duty of care to the plaintiff.
  1. [5]
    It is convenient to record some of the circumstances of the day. As it happens, the building was the plaintiff’s workplace, her employer occupying a number of the 14 or so floors. This leads the plaintiff to rely on the premises being a workplace for purposes of the Workplace Health & Safety Act 1995 in respect of which the defendant came under statutory duties (and potential strict liabilities, subject to certain defences being available).  It remains the case that it is the common law against which the claim is to be judged, although the legislation mentioned and the obligations it may cast on the defendant will require to be considered as a factor in the total mix.
  1. [6]
    21 December 2001 was a Friday and the last working day for the employer. Most of it was devoted to the firm’s Christmas party for all staff which took the form of a lunch at a restaurant at South Bank. The plaintiff and work colleagues remained at the venue after the meal was concluded, socialising and consuming more alcohol. A small group then adjourned to the city, specifically to a nightclub, one of a number (some closer) near to 138 Albert Street.  More alcohol was consumed by the plaintiff at the nightclub. She left for a short time to meet a friend, Leanne Casey, who was to drive the two of them to the Sunshine Coast for a week’s holiday, so that Ms Casey might park her vehicle at 138 Albert Street.  The plaintiff was in a position to provide access.  The two women returned to the nightclub for a short while, after which, by 8.00 pm, they found themselves (in company with Fiona Koppens and Mr Angell, both workmates) back at 138 Albert Street, with the two female staffers searching in their handbags for the “swipe key” which would allow access into the building.  Mr Angell had offered to join them in the 300m walk back from the nightclub as an act of chivalry in the circumstances: mention was made of undesirable elements that might frequent the laneway that offered alternative access to the car parking area.  The plaintiff’s evidence is that the glass in question cracked after she had been leaning on it for a couple of minutes (while ferreting in her bag for the key) – a use of the glass panel for leaning which she said she had observed being made by backpackers sitting on stools on the other side of the glass while waiting for attention.  Her version has some support from one of the women, but is contradicted by Mr Angell’s.  I am satisfied that he was sober and in possession of his faculties.  In comparative terms, she was not.  He describes the plaintiff as in a state of considerable inebriation and, while capable of walking, unsteady to the extent that he provided (he doesn’t suggest that he was asked for this) assistance in walking by placing an arm around the plaintiff.  He describes a stumble backwards of a step or so into the glass.  He heard the crack.  He grabbed the plaintiff (I am satisfied by the left arm, as he says,  rather than by the right arm as she has it) and tried to stop her from falling.  I did not take it to be suggested that Mr Angell’s efforts made the plaintiff’s injuries any more serious – it would not have affected the defendant’s potential liability if they had; he was trying to support the plaintiff and prevent her from falling.  Others (or another) there tried to get sharp splinters of glass out of the way.
  1. [7]
    I accept the evidence of Dr Purssey in the form of a report, exhibit 36, which the plaintiff consented to have tendered without his being called once certain portions had been blacked out. Dr Purssey says:

“It can be said with a degree of certainty that the accident occurred just before 8.30 pm on the 21 December 2001.  The QAS recorded being called at 8.30 pm and were at the scene of the accident at 8.34 pm.  Prior to being involved in the accident Jodie Smith had been consuming alcohol on the day in question.

In a Statement by Josie Smith dated the 13 August 2002 she stated “From the period 11.30 to 2.30 I suspect I had about six standard wine glasses of white wine.  Between 2.30 and 4 pm I suspect I had another four white wines and then left Rosaties at 4 pm”  She also stated “At the Adrenalin Bar I was drinking orange flavoured Bacardi Breezers.  I suspect I had about six of them”.

In this instance though we do not have a scientific measurement of BAC the Claimant Jodie Smith certainly was drinking for an extended period of time from approximately 11 am to after 8 pm and would have walked from the last place of consumption of alcohol, the Adrenalin Club in Charlotte Street, to the place where the accident occurred which apparently took about twenty minutes.

Therefore in estimating her BAC we can definitely state that she would have been at her maximum BAC level at the time of the accident on the 21.12.2001.

In estimating a BAC level without a scientific measurement it is possible to estimate a likely back from a stated number of alcoholic drinks.  In this particular instance the Claimant Jodie Smith makes two statements as to what she consumed on the day in question.

On these figures [from one statement] I calculate that her BAC at 8.30 pm would have been in the vicinity of 0.06% and with five Bacardi Breezers a BAC of 0.08%, exactly the same as the estimate of Dr Hoskins.  Drinking water between each glass of wine may have prevented dehydration but would have no effect on her BAC.

However using her Statement dated the 13 August 2002 she admits to drinking ten glasses of wine between 11.30 am and 4 pm and six Bacardi Breezers between 5 pm and 8.30 pm.

Please refer to my Paper on the Effects of Alcohol on the Human Body where I discuss in detail the Australian Standard Drink and the number of Standard Drinks in glasses of wine and in pre mixed spirits such as Barcadi Breezers.

By the time she left the restaurant on South Bank at approximately 4 pm she would have consumed the ten glasses of white wine containing fifteen SDs of white wine could have led to a BAC of 0.30% but with elimination of alcohol at the rate of 0.02% this would lead to my final estimate of her BAC of 0.20%.

Following this she went with others by bus back to the City and at the Adrenalin Bar in Charlotte Street between 5 pm and approximately 8 pm she drank a further six Bacardi Breezers each with one SD of alcohol.

Her BAC would have certainly been at its maximum by the time of the incident at approximately just before 8.30 pm.

By this time her total consumption would have been twenty-one SDs leading to a theoretical maximum of 21 x 0.02 of 0.42% BAC.  However over the eight hours from commencing to drink her BAC would have decreased by 0.16% leading to a probable BAC at 8.30 pm of 0.26%.

As far as the appearances of intoxication namely the indicia concerned these are caused by the effects 5-11 in the attachment.  All of the signs of inebriation can be caused by other conditions but it is the sum total of all these signs that leads to the classical appearance of inebriation.

I also note in the Statement of Matthew Angell which is a Statutory Declaration under Oath (Statement of Leanne Casey is not) he noted that “Ms Smith was unsteady on her feet at one point and fell over at a table and that I along with another male colleague, helped her to her feet.  I would say that she was tipsy to drunk although she was not blind drunk in my opinion”.

He also noted that at around 8 pm when they were leaving the Adrenalin Bar “At this time I recall that Ms Smith was unsteady on her feet but that she was not abusive or slurring her words”.  This description certainly is closer to the description of someone who has a BAC in the vicinity of 0.26% but again is given by someone who was a work colleague and friend.

…

Finally I note that the department of Emergency Medicine Registrar at the Royal Brisbane Hospital at ten minutes to 11 on the 21.12.02 had no difficulty in recognising her as being “intoxicated”.

As I said the signs of intoxication are a mixture of all of the effects 5-11 and I disagree with bringing in slurring of the speech at any given BAC level.  Her BAC at the time she was seen by the Department of Emergency Medicine Registrar would still have been in the region of 0.22%.

…

As far as question 3 is concerned both the balance and the mobility of Jodie Smith would have been severely disturbed at 8.30 pm on the evening in question.

…

Honkanen et al investigated two hundred and seventy-seven pedestrian falls and matched them with five hundred and fifty-four controls.  Their conclusions in this highly scientific controlled study were:

  1. (i)
    Alcohol increases a pedestrian’s risk of accidental fall somewhat more than it does a driver’s risk of traffic accident.
  1. (ii)
    The relative risk if 1.0 at zero BAC did not increase at BAC’s below 0.05% was about 3 at BAC’s of 0.05-0.1% about 10 at BAC’s of 0.1-0.15% and about 60 at BAC’s of 0.16% and higher.
  1. (iii)
    The risk at BAC’s above 0.1% is so high that practically all cases with such BAC’s can be considered to have been caused by alcohol.
  1. (iv)
    Alcohol is a common cause of accidental falls.

Honkanen et al rate the accident risk at a BAC of 0.16 at about sixty times that of someone who had not been drinking alcohol.  As accident risk graphs go up in an exponential curve the chance of having an accidental fall at a BAC of 0.26% would be so high it could not be measured.

Of the witnesses present at the time of her accident the only person to say she did not lose her balance and stumble backwards in the glass wall was Leanne Casey, her friend with whom Jodie Smith was due to leave for two weeks holiday the following day.

In my opinion the Statements of the QAS officer made some five minutes after the accident of “patient fell through a glass panel”, the history obtained by the Surgical Registrar at 9.15 pm “lost balance and fell backwards through glass window” and by the Director of Emergency Medicine Registrar at 10.50 pm “Fell through plate glass window” and particularly that of Matthew Angell who stated “At this point I noticed Ms Smith lose her balance somewhat and proceed to take about a step and a half back before falling into the glass” are fairly accurate descriptions of what actually occurred on the evening in question.

In summary I consider that the likely BAC of Jodie Smith at 8.30 pm on the 21.12.01 was in the vicinity of 0.26%.”

Although Dr Purssey used statements made available to him for purposes of giving his opinion and without the advantage of knowing the evidence called at the trial, his observations about the facts are in accord with my assessment of that evidence with the exception that I did not detect in Mr Angell the partiality towards the plaintiff which Dr Purssey appears to surmise.  I should make it clear that neither did I detect in Mr Angell any animus against the plaintiff.  That the plaintiff was intoxicated does not necessarily establish lack of negligence in the defendant.  In the circumstances it leads to a conclusion that the force brought to bear on the glass panel by contact with her body was considerably greater and more sudden than she would have it.

  1. [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) 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) 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.”

  1. [9]
    Five judges in Thompson v Woolworths (Queensland) Pty Ltd (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) 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].”

  1. [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.
  1. [11]
    The jurisprudence includes Jones v Bartlett (2000) 205 CLR 166, decided by the High Court over a year before the plaintiff’s injury.  The plaintiff there was the adult son of tenants of a residence and lived there with them.  He walked through a wooden framed glass door connecting the dining room and the games room without checking that it was open.  This happened in 1993.  The house was built around 1960.  The only Australian Standard (1957) was concerned with wind loads (as opposed to human impact).  The door met the standard of 4mm annealed glass.  The standards were toughened from 1973 over time and by 1987 required 10mm annealed glass or safety glass in such applications if replacement occurred.  There was no (and there does not appear to have been in any relevant context) any obligation to replace glass that is still intact.
  1. [12]
    As in this case, the original construction complied with current standards at the time but not with later standards (there when the lease commenced, here from 1995 or when the front doors were replaced only months before the plaintiff’s mishap). The court at first instance held the defendant negligent in failing to have a safety inspection at the inception of the tenancy. The Western Australian Full Court “unable to conclude that any reasonable requirement to have the door [in a good state of repair and operating normally] expertly assessed arose” (see 137) reversed the judgment, and was upheld by the High Court, Gleeson CJ stating (loc cit, para 19):

“ The conclusion that the respondents were not negligent in failing to have the door expertly assessed at the time of the lease, is, in one respect, expressed in terms which are unduly favourable to the appellant.  As was noted above, if there were to be an expert assessment at the time of the lease, there is no reason why it would have been restricted to an assessment of the glass door in question.  Implicit in the proposition that reasonable care required that there should have been an expert assessment is the idea that all features of the premises potentially capable of harming someone who came onto the premises, or, at least, the prospective tenants and members of their households, should have been the subject of expert assessment.  The glass door had been there for thirty years without causing any harm.  It was an ordinary door, constructed in accordance with building practice and standards of the time when the house was built.  There was no reason why it would have been the focus of special attention.

Having reached that conclusion, it was unnecessary for Murray J to go on to deal with the finding at first instance that, if there had been such an assessment, there would have been a recommendation to replace the glass in the door.  It has already been pointed out that there was no evidence to justify that finding.  It also suffers from the defect of involving unjustifiable ex post facto concentration on the door.”

He concluded (para 57):

“There is no ground in principle for imposing upon the respondents an obligation greater than an obligation to take reasonable care to avoid foreseeable risk of injury to their prospective tenants and members of their household.  The critical question is as to what is reasonable.  The judgment of the Full Court, with which I agree, to the effect that there was no failure to take reasonable care, was a judgment of fact.  It cannot be circumvented by an attempt to formulate the legal duty with greater particularity, in a manner which seeks to pre-empt the decision as to reasonableness.

Lord MacMillan observed in Donoghue v Stevenson (54) that the law can only refer to the standards of the reasonable person to determine whether a duty of care exists.  The same standards determine whether the duty has been broken.  ‘The criterion of judgment must adjust and adapt itself to the changing circumstances of life.’ (55)  The capacity to adjust and adapt, which is inherent in the test of reasonableness, would be diminished if a more particular test were formulated.  There is no reason to seek to do so.  Whether it is reasonable to require an owner of the premises to have them inspected by an expert before letting depends upon the circumstances of the case.  There is no answer which is of universal application.  Deciding what the answer should be in a particular case involves a factual judgment, and does not provide the occasion for the imposition of a requirement of the law.

The claim in negligence must fail.”

Kirby J at 251 expressly stated that:

“Of course, these remarks concern the liability of landlords of residential premises.  Different considerations may well apply to premises used by government or its agencies or by private bodies, including for commercial, public, schooling, health care or other purposes.  Where members of the public generally are invited on to, or have a right to enter, premises a higher duty will be imposed by the law.”

  1. [13]
    A similar outcome quashing the trial judge’s decision in favour of a tenant’s guest injured when she fell through an old (annealed) glass shower screen installed before July 1972 when safety glass became mandatory under local government ordinances in such applications is Ahluwalia v Robinson [2003] NSWCA 175.
  1. [14]
    Other cases do involve premises to which a community such as a school or the wider public are expected to have access, which brings in a relevant feature for the determination of what the occupant’s duty required.
  1. [15]
    Ridis v Strata Plan 10308 (2005) 63 NSWLR 449 concerned the front entrance door of a strata title building of eight units.  The plaintiff resident put his hand through a glass pane in the door when attempting to stop its closing on him.  McColl JA at 155 considered the situation analogous to private domestic premises.  At 145 she appeared to rely on Gleeson CJ’s rejection of “the argument that a duty of expert assessment existed at common law”.  Hodgson JA said at paragraph 7:

“Turning to the facts of this case, I accept that, if the owners corporation had actually been aware that the glass in the door was such that it could shatter into dangerous shards in circumstances such as those of this accident, then the exercise of reasonable skill and care would have required precautions such as those taken after the accident in relation to the other door.  However, it was not established that the owners corporation was aware of this, and the crucial question is whether, acting reasonably, it should have been aware of this.”

  1. [16]
    Tobias JA dissented from the upholding of the trial judge’s dismissal of the action, considering that legislation required the owners corporation to renew the glass door which fell short of Australian standards adopted since its installation in 1939.
  1. [17]
    Finn v The Roman Catholic Trust Corporation for the Diocese of Townsville [1997] 1 Qd R 29, 36 confirms that an Australian Standard “has no per se legal or evidentiary force (Chicco v Corporation of City of Woodville [1990] Aust. Torts Reports 67, 893,  67, 895,  67, 897).”  The case may be thought to provide an analogy with the present one in so far as it concerns an asserted duty to audit, inspect or enquire where not on notice of some weakness in an employee.  An employer “is not required to enquire into the question as to whether each labourer employed by him may be unfit for the work involved by reason of some constitutional defect or weakness”: per Williams J (the other members of the court agreeing, at 41).
  1. [18]
    The plaintiff succeeded in Cardone v Trustees of the Christian Brothers [1994] ACTSC 85.  A schoolboy ran into a glass door when he tripped on a “boot-scraper” which apparently served as a bracket to latch the door open at ground level.  The door went up in 1966, before the Building Code of Australia from 1972 came to require safety glass.  Higgins J assessed the boot-scraper/bracket as a tripping hazard.  Having held the school negligent in installing it and for leaving it to remain for 20 years, he went on at 57:

“The consequences of the plaintiff’s fall were greatly exacerbated by the failure of the defendant to install safety glass.  In my view, whatever may have been reasonable in 1966, once it became an Australian Standard for safety glass to be installed, it was negligent for the defendant not to ensure that relevant glass panels were replaced with safety glass as soon as practicable after it became, or should have become, aware of that safety standard.  It is only necessary to conclude that such replacement, being both practicable and affordable, should have been attended to shortly after 1972 and well before the plaintiff’s accident in 1987.”

  1. [19]
    There was an unsuccessful appeal based on apprehended bias of the judge: Trustees of the Christian Brothers v Cardone (1995) 130 ALR 345.  The defendant here distinguishes Cardone (if it survives later decisions at all) on the basis that it involves the glass that became sub-standard because of changes in requirements for glass in buildings which was situated very close to a tripping hazard that should have been obvious to the defendant.  No similar combination of dangers is present here.

Cardone is listed among the cases considered in Jones v Bartlett at first instance: see BC 9840021.  At first instance, Commissioner Reynolds accepted the idea of a duty upon an occupier to conduct inspections/audits:

“The care required by the defendants is not to be found in the common law.  It is defined in s 5 of the Occupiers’ Liability Act.

…

Consideration needs to be given to the various factors set out in s 5(4)(a)-(g) inclusive of the Occupiers’ Liability Act.

I think that there is a high likelihood of serious injury to a person if he or she walks or bumps into a full length glass door causing the glass to break.  Glass by its very nature has sharp edges when it is broken.  If part of a person’s body dropped onto the edge of a piece of broken glass or a piece of broken glass dropped onto part of a person’s body then the person would most likely be cut.  The bigger the piece of glass the heavier it would be.  If the edge of a large piece of broken glass fell onto a person’s leg then a serious laceration would be highly likely.  Such was the potential gravity of the injury in this case.

The particular doorway in the premises where the glass door was fixed was part of the main access way between the inside and outside of the premises.  While inadvertence or inattentiveness can occur at any time, in this particular case the risk of the probable injury was increased by the fact that the glass door was in a part of the premises that was frequently used.

…

I find that if the premises were inspected on or before 6 November 1992 by a person with building qualifications to assess safety then it is likely that comment would have been made that the glass in the door fell a long way short of the then current standard with a recommendation that it be replaced.  The fact that the door was located in the main access way between the inside and outside of the premises increased the likelihood of such a recommendation.

…

I find that the defendants were negligent by failing to have the premises adequately inspected for safety prior to allowing the plaintiff’s parents into possession.  It is likely that such an inspection would have resulted in the state of the glass door being brought to their attention.”

50% contribution was assessed against the plaintiff who “walked into the full length glass door [so that] impact of [his] right leg caused the glass door to break”. 

  1. [20]
    The idea that appealed to the Commissioner did not appeal to the Full Court: see BC 9900511:

“When all the verbiage is cut away, it seems to me that the question truly at issue between the parties was whether the appellants were in breach of their statutory duty of care or the similarly expressed duty in negligence at common law by failing to inspect the glass door, necessarily with expert assistance, on the evidence, so as to discover that although it was adequate when installed, it did not meet current safety standards at the time of and during the continuation of the lease in a way which would make it more likely to cause injury to a person who came into contact with the door other than in the ordinary way of opening and closing it.  In that event the annealed glass might readily have been replaced at no great expense with safety glass.

As I have mentioned, His Honour found the breach of duty in the failure to have the premises adequately inspected for safety.  With respect I find myself unable to agree.  I have expressed the view that in the circumstances of this case as they were established at trial, there was a very remote prospect of a collision between a person and the glass in the door.  Once that occurred, of course, the risk of injury was substantial if the collision was with sufficient force to cause the glass to break, but there was no danger that that would occur without such a collision, or when the door was used normally.  Certainly it was, on the evidence, a well trafficked area allowing access between the interior of the house and the backyard, but the door was positioned so that it could be clearly seen and the fact that it was made of glass in a wide wooden frame clearly observed.  The handle was readily accessible.  It formed no trap to the ordinary user of the door, particularly not to an adult.

When the lease was entered into in November 1992 the respondent’s parents inspected the premises and found no fault in them.  For the appellants the inspection was carried out by their agent, Mr Henley.  His evidence was that although he was primarily concerned to make an inventory of the contents of the premises, he would have brought to the appellant’s attention and have them deal with any matter concerned with the safety of the premises to which the respondent’s parents objected, or which he noticed himself.  The evidence did not deal with whether the state of the glass would have been discoverable upon reasonable inspection by a qualified builder or some person of that kind.

The evidence was that to the casual observer the door appeared to be, as it was, in a state of good repair, and it operated quite normally.

In those circumstances I am unable to conclude that any reasonable requirement to have the door expertly assessed arose.”

  1. [21]
    An earlier case referred to by the plaintiff was Giner v Public Trustee (1991) 105 FLR 411.  In 1980 an eleven year old girl playing a racing game with the defendants’ daughter at their place “touched” a glass door marking the end of a lap, which shattered, cutting her at the knee so severely that her leg was nearly amputated.  The building survived Cyclone Tracey, having gone up before 1970.  On the evidence, toughened laminated glass started to be used in the industry for large panels of glass, especially indoors, and may have been available in Darwin from around 1973.  At 412 Mildren J found that it was annealed glass which shattered:

“There was no evidence before me which suggested that the glass could have been any other kind of glass.  I consider that nearly everybody would be familiar with the different appearance of these two types of glass when they break.  Most people would be aware that ordinary glass when it breaks, will leave large sharp pieces capable of inflicting a serious cut; whereas anyone who has seen a car windscreen shatter, would be aware that the glass pieces are usually much smaller and blunter.”

At 415 he turned to consider the relevant “matters” in light of Wyong Shire Council v Shirt:

“First, the magnitude of the risk was a significant one.  The glass in question, when broken, would leave sharp and jagged edges.  A serious injury, possibly a fatal injury, could occur.  Certainly the injury sustained by the plaintiff was a severe one, as her leg was almost amputated.  I would assess the degree of probability of the occurrence of injury as low, but not insignificant.  There was no evidence as to how regularly children played in that area.  But the risk of injury was not to children alone.  Any person attempting to open the door, could, if it unexpectedly stuck for example, break the glass with his knee.

It was suggested by Mr Morgan for the defendants that in considering these factors I should have regard to the standards of safety which existed in the community at the time the building was built, and not at the time of the injury.  I reject that submission.  In my opinion, all the relevant factors to be taken into account are those existing at the time of the accident, and to the extent that safety standards changed from the date of a building’s construction until the date of the accident, the court must, if those standards are relevant, have regard to the standards pertaining at the date of the accident.”

At 416 it was opined that toughened glass may not have shattered at all, that in any event it was extremely unlikely to cause severe injury:

“If the defendants had installed toughened glass, the defendants would have done all that was reasonably necessary by way of response to have alleviated the risk.  There is no evidence before me as to what this may have cost, but given that this kind of glass has been recommended in standard AS 1288, I think I am able to infer from that the cost would not have been a significant deterrent to the defendants.  Alternatively, other simple means of alleviating the risk were available, such as using screen doors, low partition walls, or replacing the doors with wooden doors.”

Doing nothing was not considered an option. 

  1. [22]
    Inherent in Mildren J’s reasons, also reflected in other early cases, and representing a rational response to the problem, is awareness (reasonably attributable to the general adult population) that the use of plate glass courts the risk that it will shatter with bad consequences. For an earlier instance see Nickells v Melbourne Corporation (1938) 59 CLR 219.  It is probably true that the increasingly widespread use of toughened plate glass in the external walls of buildings that are fully accessible at ground level and in similar applications has led many in the community nowadays to repose more confidence than they should in the strength and structural integrity of glass panels in their environment.  The law reports (and doubtless hospital records) show that it is foolhardy to make assumptions about the toughness or weight-bearing capacity of sheet glass.  One must wonder whether the legislature ought not to intervene to ensure that confidence in glass does not continue to be misplaced – by forcing replacement of annealed glass panels in many applications or guarding it in some way or publishing warnings of the dangers.  In other spheres, such as installation of smoke alarms and ensuring that vehicles are roadworthy (specifically on sale), there has been action along such lines. 
  1. [23]
    Higgins J took the same approach as Mildren J; his reasons make no reference to the earlier decision. Since Jones v Bartlett and the clutch of later cases considering or applying it, there is no room for this court to adopt the relatively simple approach of the 1990s that occupiers must keep up with standards for glass or risk being held liable in damages for negligence should some misadventure occur on some future date by which time relevant legal requirements for Australian Standards for new work have been made more demanding.
  1. [24]
    A later ACT case is Sauer v Australian Capital Territory [2007] ACT SC 18.  The glass door which broke was in a public hospital.  It did not comply with standards for new work that in time came in.  Master Harper distinguished Cardone, on the bases mentioned and because the context being a boys’ school was seen as significant.  Jones v Bartlett, although concerned with residential properties, was seen (at 60) as having some application, in particular the passage at paragraph 23:

“There is no such thing as absolute safety.  All residential premises contain hazards to their occupants and to visitors.  Most dwelling houses could be made safer, if safety were the only consideration.  The fact that a house could be made safer does not mean it is dangerous or defective.  Safety standards imposed by legislation or regulation recognise a need to balance safety with other factors, including cost, convenience, aesthetics and practicality.  The standards in force at the time of the lease reflect this.  They did not require thicker or tougher glass to be put into the door that caused the injury unless, for some reason, the glass had to be replaced.  That, it is true, is merely the way the standards were framed, and it does not pre-empt the common law.  But it reflects common sense.”

Also noted was Commonwealth of Australia v O'Callaghan [2001] WASCA 276, in which the Full Court reversed judgment for the plaintiff given a month before the High Court decided Jones v Bartlett.  The plaintiff was a disgruntled client of the CES found by the trial judge (who held him at 50% contributorily negligent) to have “banged his way out of the doors”.  Kennedy J’s reasons for the Full Court note the decision in Jones v Bartlett:

“At 9 [49], Gleeson CJ dealt with an argument that reasonable care required the respondents in that case, prior to the commencement of the lease, to have the premises expertly assessed to see whether, and in what respects, their construction fell short of current building standards, or whether, and in what respects, they could be made safer.  He regarded this argument as unconvincing.  It had not been shown to be usual practice and the evidence indicated that it was not usual practice.  There was no similar suggestion made in the present case.

Acknowledging that the Australian standards do not pre-empt the common law, there is no evidence that the glass in the doors did not comply with the standard when the building was constructed.  As to the previous incident when a glass panel was broken, there was no evidence as to how the glass came to be broken, or as to the force applied to it, and certainly nothing to justify the conclusion that the appellant should have been alerted by the incident to the risk of breakage and resulting injury.  There was no evidence of any injury to any person from broken glass since the premises had been completed in 1980.  There was no evidence that the panel replaced as a result of the earlier incident was that which was broken by the respondent.  The inference was open to the trial Judge to hold that it was annealed glass which had broken, having regard to the fact that there were shards of glass on the ground so that it could not have been the case that Grade A safety glazing materials had been used.  There was no evidence as to the thickness of the glass.  In my view, on the evidence before the learned trial Judge, the fact that the glass was broken resulted from the deliberate act of the respondent who, in the words of the trial Judge, was determined to make a point by banging his way of the doors.  It was not the case that the cause of the breakage was some deficiency in the strength of the glass.”

  1. [25]
    Tweed Shire Council v Hancomatic Music Pty Ltd [2007] NSWCA 350 exhibits a good deal of complexity in its facts.  In 1999 a six year old boy ran into a sliding door of annealed glass which was the access to the reception area of a motel.  The New South Wales Court of Appeal found (contrary to the trial judge’s approach) that the door was installed before 1 July 1972 when safety glass would have been required.  The boy died quickly from lacerations received when the glass shattered.  His parents and brother brought nervous shock or like claims against his grandfather’s company as owner of the premises, rather than against other potential defendants, including the parents’ company, which was lessee.  One of them had been the (non-expert) adviser of the defendant as to what work ought to be included in extensive renovations in 1997 when certain glass was replaced with safety glass, specifically shower screens, metal components of which had become rusty.  The grandfather (or his company), it was successfully contended at trial, owed a non-delegable duty at common law to have a qualified person conduct a safety audit.  The Court of Appeal said:

“The relevant duty was found to have arisen when Hancomatic undertook substantial renovations in 1997, if not before (Red 56).  This refurbishment occurred under the oversight of the plaintiffs Mr and Mrs Hancock.  It was they who concluded that no relevant work needed to be done to upgrade the reception area (Black 73, 152, 174).  Over $150,000 was spent with most decisions being made by Mr Hancock snr based on suggestions from his son and daughter-in-law (Red 42).  The focus was clearly related to general beautification of the motel premises.  No structural renovations were done.

No one ever set about a conscious safety audit.  Regrettably, all members of the Hancock family appear to have been unaware of the potentially dangerous propensities of annealed as distinct from safety glass until Ryan’s fatal accident.

Nothing was done to change the glass in the reception room door.  It is not suggested that there were any relevant structural alterations in that area.

Neither Mr Hancock snr, as the then principal of Hancomatic, nor his son and daughter-in-law professed any expertise in safety or construction matters.

On 18 July 1997 A R Hancock & Co Pty Ltd took possession of the premises as tenant under an oral lease.  Thereafter it operated the hotel under the day to day management of the two adult plaintiffs.  This was the situation at the time of the accident.  The plaintiffs and their children lived on the premises until late 1998.”

And of the “extended duty” to conduct an audit (presumed to be one putting the owner on notice that annealed glass should be replaced):

“Hancomatic and the Council are critical of this formulation of an ‘extended duty’.  They submit, and we agree, that a duty of care should generally be expressed in the form of a duty to exercise reasonable care.  What is reasonable depends on a myriad of circumstances.  The commercial nature of premises is clearly relevant to questions of breach, if for no other reason than that commercial premises like these would have members of the public coming and going in the particular area.

Speaking of ‘dangerous defects’ in residential premises, Gummow and Hayne JJ said in Jones (at 220[186], 221[193], footnotes omitted):

… the steps a landlord was required to undertake were only those that would be taken in the course of ‘ordinary reasonable human conduct’.  The matter is not an exercise of hindsight.  The identification of the requisite steps will depend, among other things, upon whether an ordinary person in the landlord’s position would or should have know that there was any risk; whether that person would or should have known of steps that could be taken in response to that risk; and the reasonableness of taking such steps.

…

The content of the landlord’s duty in a case such as the present is not one of strict liability, to ensure an absence of defects or that reasonable care is taken by another in respect of existing defects.  It is not a duty to guarantee that the premises are safe as can reasonably be made.”

See also New South Wales Department of Housing v Hume [2007] NSWCA 69.

  1. [26]
    The appellant Council had been held liable to give a full indemnity for its failure (as the planning authority issuing building approvals) to insist on adherence to the new standards for glass. The Court of Appeal’s reasons for allowing its and the company’s appeals continue:

“In our opinion, any duty of care resting upon Hancomatic as owner ought to have been expressed in the form of a duty to exercise reasonable care in the circumstances.  To frame it as a duty to ‘make appropriate inquiries and conduct a safety audit’ (Red 56) was to overstate the content of the duty and thereby skew the breach enquiry.

Once it is accepted that the door was installed before July 1972 the duty and breach questions fall to be decided against the background of unchallenged or unchallengeable findings that:

  • neither the Ordinance nor the Australian Standard had any application to work installed before their commencement;
  • Hancomatic had relied upon a licensed builder who did the relevant work before July 1972 under the authority of approved building plans and the oversight of Council officers;
  • Hancomatic, its proprietor, the lessee and its proprietors were all lay people who had no actual knowledge about the relevant dangers of annealed compared to safety glass.

On top of this, there was no evidence pointing to any industry practice or widespread general knowledge touching the relevant danger or capable of generating the duty that was found.  This gap in the evidence would also preclude any finding of breach of a more general duty of care in the circumstances in this case.  In truth, there were no ‘prevailing standards’ that supported the plaintiffs’ case.

We recognise, as did the primary judge, that Jones and Ahluwalia involved residential premises.  What is reasonable to be done in one situation may not be reasonable in another (Jones at 185[58], 216[174]).  But the nature of the premises is not determinative of the scope of the relevant common law duty, which remains one that is focussed upon what is reasonable in the circumstances even for commercial premises or premises open to the public (see eg David Jones Ltd v Bates [2001] NSWCA 233; Wilkinson v Law Courts Ltd [2001] NSWCA 196; North Sydney Council v Plater [2002] NSWCA 225).

Standards of what is reasonable may evolve (Jones at 185[58]).  However, the plaintiffs point to no evidence showing general knowledge or practice that might support a finding that failure to commission a safety audit and/or replace the annealed glass was negligent in the circumstances.

The critical aspect of the negligence alleged is the failure to perceive that retention of annealed glass in this particular door was an unreasonable response to the risk of personal injury suffered by an inadvertent adult or child crashing into the glass.  What was reasonable had to be judged without the hindsight provided by the tragedy that eventuated (see J & V Pesl Pty Ltd v Ray Smith Tractors Pty Ltd [2007] NSWCA 74; (2007) Aust Torts Reports 81-883 at [76]-[80]).  And it was to be determined having regard to the totality of matters presenting themselves for the attention of a reasonable owner of the particular premises.”

  1. [27]
    The plaintiff’s full written submissions regarding what is called “the Shirt calculus” identify the following factors in support of the contention (which the court accepts) that a reasonable person in the defendant’s position should foresee the risk of an injury of the type that happened to the plaintiff:

“(i) 4500 to 5000 persons passed through the front doors each week;

  1. (ii)
    Young students congregated at the front of the building and security guards or a caretaker were utilized to disperse them;
  1. (iii)
    Stools were placed adjacent to the pane of glass in the Backpackers Travel Agency;
  1. (iv)
    Architects had advised the upgrade of glass to the front doors to comply with the AS1288-1994:

 ‘WINDOW SPECIFICATION

GENERAL STANDARD TO AS2047

 GIVE NOTICE FOR INSPECTION OF FABRICATED ASSEMBLIES ON SITE, BEFORE INSTALLATION SUBMIT SHOP DRAWINGS SHOWING: LAYOUT (SECTIONAL PLAN AND ELEVATION) OF ASSEMBLY, METHODS OF ASSEMBLY, METHODS OF INSTALLATION, INCLUDING FIXING, JUNCTIONS AND TRIMS TO ADJOINING SURFACES, HARDWARE FITTINGS AND ACCESSORIES ADJUSTMENT LIMITS OF FIXING AND FITTINGS AND GLAZING DETAILS

 O and M MANUAL TO BE PROVIDED INCLUDING PROPRIETARY MATERIALS IDENTIFICATION AND DATA GLASS: TO AS1288; FREE FROM DEFECTS WHICH DETRACT FROM APPEARANCE OR INTERFERE WITH PERFORMANCE

 FINISH TO BE CLEAR ANODISED ALUMINIUM SAFETY GLASSES: TO AS/NZ2208 GRADE A WITH STANDARDS MARK

 LAMINATED SAFETY (CLEAR FLOAT WITH CLEAR INTERLAYER) USE TO PARTITION GLAZING AND WHERE CLEAR FLOAT IS REQ’D BUT AS1288 INDICATES SAFETY GLASS. GLAZING MATERIAL ARE TO COMPATIBLE WITH EACH OTHER AND WITH THE CONTACT SURFACES AND NON-STAINING TO FINISHED SURFACES RECESSED FLUSH GLAZED BOX SECTION FRAMING TO TOP OF DOOR) USE SUITE OF MATCH SECTIONS (EG GJAMES 475 SERIES) APPROPRIATE FOR LOADINGS WITH INTERNAL 6.0mm PLATES FOR FIXINGS OF CLOSERS, LOCKS HINGES AND OTHER HARDWARE AS REQUIRED.’

  1. (v)
    The premises were in close location to nightclubs;
  1. (vi)
    The premises were situated in the Central Business District;
  1. (vii)
    The defendants undertook a substantial renovation of the foyer shortly prior to the incident date;
  1. (viii)
    The premises were at least 30 years old;
  1. (ix)
    The Building Upgrade Specification noted the building had high volumes of pedestrian traffic and improper use of the common area at the front of the building.”

To those considerations I think might be added that the glass panels were part of the external fabric of the building, indeed a wall of a recess immediately adjacent to the busy footpath in Albert Street which provided a convenient location where members of the public might choose to go, perhaps thoughtless of entering private property, to attend to something or other outside the stream of pedestrians on the main footpath.  It is nothing like a school (or backyard) playground, but some contact with the panel from time to time might have been anticipated.  (It was not suggested there had ever been any concerning incident involving or damaging to the panel or its counterpart opposite.)  In my view, the architects’ endorsements on their plans (exhibit 24) quoted in (iv) above cannot be regarded as notifying the defendant of anything to do with Australian Standards or the like except for the “NEW GLAZED DOOR”.  The plans specifically record that, apart from the doors being replaced, the glass in the entrance area was to be retained (“EXISTING GLAZING TO REMAIN”).  It is drawing far too long a bow to regard a reference to AS1288 as applicable to new doors as saying anything about other glass in the building, even glass panels immediately adjacent.  Treating the defendant as some have put on a notice that there is an Australian Standard as aforesaid goes no distance at all to embarrass the defendant.  I cannot accept that an allusion to the standard not prominent or highlighted in any way leads to an expectation that the defendant, as the architect’s client, ought to inform itself of the entire contents of the Australian Standards named and institute a thorough enquiry as to whether, if it imagined its building being constructed anew, that would have occurred in compliance with the standards.  Factor (vii) did not assist the plaintiff ultimately in Hancomatic.

  1. [28]
    Fourteen factors were identified by the plaintiff as relevant to the court’s determination as to what action (if any) was reasonably required of the defendant:

“16.1 It is the plaintiff’s submission that the particular circumstances of this case were that:

  1. (i)
    The premises were commercial premises in the central CBD;
  1. (ii)
    The premises were old; having been constructed in or before 1971;
  1. (iii)
    There was high traffic flow into the building each week of 4500 to 5000 persons;
  1. (iv)
    There was a history of students congregating at or near the entry doors to the premises;
  1. (v)
    The premises were located near to nightclubs and bars;
  1. (vi)
    Customers of the Backpackers Travel Agency sat on stools near or against the window in question.
  1. (vii)
    The Building Upgrade Specification identified the “improper use of the common area at the front of the building” and that it was a high volume area;
  1. (viii)
    A substantial structural renovation was planned specifically targeted to the foyer area;
  1. (ix)
    A substantial sum as to be expected ($268,400);
  1. (x)
    Conrad and Gargett advised that glass to doors that were to be replaced needed to comply with the AS1288 Standard;

(xi) A Glass Compliance Audit could have been obtained in 2000/2001 and at a minimal cost of no more than $220;

(xii) The cost to replace the side panels, one of which the plaintiff fell through would have been $1,651.70 each;

(xiii) The defendant admitted it had statutory obligations but adduced no evidence of any attempt to comply with those obligations;

(xiv) There is no evidence to suggest the defendants were not aware of the age of the building nor that they were not cognisant of the recommendations of their architects to replace the glass in the front doors with glass to the AS1288-1994 standard.”

The written submissions go on:

“16.2 In this factual context, the defendant chose to leave in place glass which had been installed thirty years previously and did not undertake any investigation and/or audit to determine if this was, in the circumstances, reasonable.

16.3 It is submitted this was not the response required of a reasonable person. The Defendant should be found to have breached its duty of care.”

Regarding the fourteen considerations:

  • (i)-(v) inclusive are true; there might be added the likelihood that passing pedestrians would consider themselves entitled to be in the recessed space. There is nothing to show that high volumes were any threat to the glass.
  • It was not shown that the age of the premises or of the glass panels retained, although known to the defendant, was a factor of any relevance in determining what its acting prudently might require. Although the plaintiff’s expert, Dr Casey gave evidence of his experience that glass deteriorates with age and may be more likely to shatter, there was no evidence that any such propensity is appreciated in the wider community.
  • (iv) in my view has no more significance than the volumes of traffic in the area.
  • Assuming (vi) was known to the defendant, the “practice” had no untoward consequences. The pressure on a glass panel from a seated person leaning is going to fall short of that from a moving person falling on to the same panel. It is not persuasive in light of the authorities to assert that the latter situation(s) should be guarded against.
  • There is nothing to show that the “improper use” in (vii), apparently something which detracted from the impression made by the building, had anything to do with risk to or from glass doors or panels.
  • The difficulty with (xi) and (xii), as statements in the cases discussed above confirm, is that there is no convincing basis for stopping at the offending glass panel and its twin. The extent of “audits” would have been considerable if all foreseeable risks were to be guarded against, there being no sound reason to restrict them to glass; likewise the cost of work to implement recommendations would be greater, perhaps enormously so.
  • As to (xiii) and (xiv) I do not accept the plaintiff’s contention that the defendant’s failure to give evidence on these matters somehow counts against it on the basis that it might be assumed that had they given such evidence, it would not have helped them. The plaintiff has had the opportunity to interrogate, and taken it up. In my opinion there is no obligation on the defendant to take the risk of putting into the witness box for cross-examination persons who might have been able to speak to these matters. It is for the plaintiff to marshal sufficient evidence to make out her claim of negligence.
  • The substance of the other matters has been dealt with in the immediately preceding paragraph.
  1. [29]
    The defendant did not challenge the honesty or genuiness of the plaintiff in giving her evidence, but did challenge her reliability, specifically in regard to her alcohol consumption on the day and on how she came into contact with the glass panel. Her estimates at the trial of what she had consumed fell far short of what she said in earlier statements, indeed, from what her counsel’s opening led the court to expect. In my opinion, her earliest estimates are likely to be the ones closest to the mark. I go along with the defendant’s suggestion that the plaintiff has succumbed to a natural enough tendency in giving evidence in the court to underestimate consumption of alcohol, which is probably shared by many in their estimates for medical practitioners, insurance companies and the like. Doubtless there are other contexts in which people wishing to “big note” themselves give estimates that are too high. I do not think the plaintiff was doing anything of that kind back in 2002.
  1. [30]
    The plaintiff fails to show that in the circumstances discussed above there was anything the defendant ought to have done by way of replacing glass or instituting enquiries or audits that might have revealed the desirability of doing so. In arriving at that conclusion I have also taken into account circumstances of the defendant’s building discussed in the following paragraphs which do in my opinion have some relevance – as would for example (to venture a hypothetical) the establishment of a bus stop in Albert Street at which a rowdy or disorderly high school students congregated, who were likely to play up around the building’s exterior glass.
  1. [31]
    The plaintiff’s argument relied on comments by McHugh J (dissenting) in Jones v Bartlett at 197 for the proposition that the Australian Standards are a guide to, but do not dictate the standard of care required in individual circumstances, presumably to indicate that reasonableness may require replacement of sound glass, even though the Standard does not (“risk of injury to the careless or inadvertent … a reasonable person, conscious of the risk, would not ignore”).  The written submissions continue:

“9.28 Kirby J in Jones v Bartlett was in the majority. His Honour considered that review of the laws of other jurisdictions illustrated a number of points of which point four was that:

‘… courts and other jurisdictions have held back from imposing positive duties to ensure inspection by experts to discover latent defects. Generally speaking, if such obligations are to be imposed by law, it must be done with authority of legislation.’

9.29 The Workplace Health & Safety Act 1995 imposed such an obligation. It is submitted it would not be an excuse for a failure to comply with the Workplace Health & Safety Act 1995, that the glass was a latent, rather than a patent, defect. The way in which the Act operates, in conjunction with the standards, was explained by the Court of Appeal in Schiliro v Peppercorn Child Care Centres Pty Ltd (No. 2) [2001] 1 Qd R 518.”

  1. [32]
    At relevant times, s 30(1) of the Act imposed on a person in control of a “workplace” obligations:
  1. (a)
    to ensure the risk of injury from a workplace is minimised for persons coming on to the workplace for work; and
  1. (c)
    to ensure there is appropriate, safe access to and from the workplace for persons other than the person’s workers.

The defence of having taken reasonable precautions and exercised proper diligence to prevent contravention is in s 37(1)(c).

  1. [33]
    It was not suggested that the plaintiff had any statutory cause of action or was relevantly a worker at the time; the argument is that the statutory obligations, albeit imposed for an extraneous purpose, were an important factor in the mix of those pointing to what acting reasonably required of the defendant. Its building was a workplace. I accept the principle of this. In the particular circumstances the consideration may add little to the obligation I believe the defendant had to proceed reasonably to respond to the foreseeable risk of injury from the glass panel, such as it was, to members of the public in Albert Street who might find themselves in the recess leading to the main doors of the building.  It is difficult to distinguish between the side walls and the glass shop fronts proper.
  1. [34]
    The submission noted it was not the defendant’s common law duty to make the premises as safe as was (reasonably – my addition) possible, concluding:

“9.6 In the present case, the duty to be proactive, and replace the glass panel derives from three separate and inter-related matters;

9.6.1 The defendant’s decision to upgrade the foyer of the building;

9.6.2 The use that was made of the area in which the incident occurred;

9.6.3 The defendant’s statutory obligations.”

  1. [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

  1. [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.
  1. [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:

  1. (i)
    The Standards relating to glass in buildings has been upgraded twice since 1971;
  1. (ii)
    Increased personnel traffic around the glass panel which sits prominently at the front of the building;
  1. (iii)
    Students loitering at the front of the building.
  1. (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.

  1. [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.
  1. [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.
  1. [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 … .

…

  1. 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.”

  1. [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) 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) 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

  1. [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) 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.”

  1. [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).
  1. [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).

Interest

  1. [45]
    The defendant submitted that any interest on damages the plaintiff might be awarded should be limited to half of the period (now in excess of 10 years) since the cause of action (if any) arose on 21 December 2001. No particulars of delay in her conduct of the proceeding were pointed to, a proposition being that it should have been brought to trial years sooner and that no obstacle to achieving that was shown. No charge of delay was levelled against the defendant’s side.
  1. [46]
    The justification for charging interest is that money which ought to have been in the plaintiff’s pocket has been in the defendant’s or available to the defendant to use profitably. While no rationale of punishing a dilatory plaintiff is appropriate, the discretion to award interest for less than the full period since the loss being compensated “to encourage plaintiffs to prosecute their claims with diligence” is acknowledged. There are other cases, such as ones where “assessment of damages is made on such a basis that it would be just to award interest from a later date” or where the defendant has not been alerted to the plaintiff’s claim as early as should have happened. See BP Exploration Co v Hunt (No. 2) [1979] 1 WLR 783 at 846-47.  The principles stated by Goff J were referred to by the Full Court in Serisier Investments Pty Ltd v English [1989] 1 Qd R 678.  At 680 Thomas J indicated that it would have been an acceptable exercise of discretion at first instance either to award interest for the full period or to reduce the period given the dimensions of delay after the issue of the writ.  The Full Court did interfere by reducing the interest rate applied from 15% to 12%.
  1. [47]
    In Larkin McDonald & Associates v J W Mahoney BC 9202508 the Court of Appeal did allow an appeal against the granting of interest from the date of the plaintiff’s demand in 1979 to the date of judgment after trial in 1991 by limiting the period of interest to six years.  That is an appropriate period to allow in the present matter in my opinion.

Quantum

  1. [48]
    Although the plaintiff’s claim fails, it is appropriate to assess her damages, should a different determination be made on appeal.
  1. [49]
    The plaintiff was cut alarmingly by shards of the broken glass. Her statement of 13 August 2002 (exhibit 19) refers to glass digging into the left side of her neck and her left cheek being slashed (“it was as if the whole left cheek had almost been cut off”), as well as a wound to her back around her left hip, damage to tendons in her left hand and glass resting on her arm (probably a reference to her right arm).  It is convenient to adopt, because it is more concise, Dr Cockburn’s account based on examination in 2004 (he was engaged by the defendant, Dr Rigg[2] being his counterpart):

“SPECIFIC COMPLAINT

She complained that she wished the scars were not there. From a symptom point of view there is some tightness, particularly where the extensor tendon was repaired on her left hand and the reduction of sensation around the scars is somewhat disquieting.

On examination there are multiple scars:

  1. Left cheek complex. There is a scar associated with a large inferior based flap measuring 7cm x 4cm in length and 3cm in width.

 On her neck there is an anterior neck scar measuring 5 x 1 cm

 On the left posterior triangle area there is a 4.5cm x 1cm scar.

 On the left scapular there is a small puncture wound measuring 1 x 1cm.

 On her left hand there is a longitudinal scar adjacent to her index finger measuring 7 x 0.2cm.

 Adjacent to the third metacarpal region, third knuckle region there is a 3 x 2 mm scar.

 On her right arm there is a long 15 x 1 cm scar.

 On her left hip there are two scars: a large measuring 16 x 1cm and below that a small puncture wound 4 x 1cm.”

I assume that the discrepancies in measurement noted in Dr Cockburn’s report following a second examination in 2009 are something that is to be expected:

“ON EXAMINATION

I confirm there are a number of areas of scarring.

  1. On the left cheek is a large trap-door scar measuring 4cm in the vertical limb, 4cm in the horizontal and 9cm extending down below the left eye to the left angle of mandible.
  1. On her anterior neck is a 5cm x 1cm scar
  1. Right arm is 12cm x 1cm scar.
  1. Left hand 8cm x 1cm scar.
  1. 3cm curbed scar over her left middle finger, metacarpal phalangeal joint region.
  1. 7cm x 1cm scar on her left posterior neck.
  1. 15cm x 1.5cm scar overlying her right buttock region.

Below this is a puncture wound measuring 4cm x 1.5cm.

Fortunately, all of these scars have settled well and spontaneously with the passage of time. The only scar that may benefit from a revision is the puncture would on her lower buttock. This is not on an area that is commonly seen, but could be improved with a scar revisional procedure. I would estimate that her scarring is best described using the AMA Guidelines 5th edition on Table 8.2 and would consider her impairment to be in Class 1 and to be 4% impairment of the whole person.”

Dr McGovern thought that revision of the face and neck scars, to reduce the width of them from around 7mm to 1mm, being the only future surgery in which the plaintiff is interested, was feasible.  Dr Cockburn thought the risk of a worse outcome was not worth taking.  There has been no reconstructive surgery undergone by the plaintiff since her original hospitalisation after the accident, which lasted five days.  As might be expected, the plaintiff’s physical injuries and the resulting scarring have had psychiatric/psychological consequences.  The plaintiff became extremely avoidant of being in public or dealing with the public, even, for a time, ceased contact with friends.  She had a supportive work environment, in which her duties did not require face to face contact with the public.  She was away from her job for only three weeks, the first two of which coincided with her ruined Christmas holiday.  She has been able to continue working, and in recent years doing so from home.

  1. [50]
    The psychiatrists who have assessed the plaintiff have nominated numbers under the Psychiatric Impairment Rating Scale (PIRS) for purposes of the Civil Liability Act 2003 and Civil Liability Regulation 2003 – unnecessarily so, as the relevant provisions did not come in until after the plaintiff was injured.  The plaintiff’s expert assesses at four, the defendant’s at one.  The court heard there was no room for any middle ground, given the quirks of the legislated tables.  There are boxes that cannot be ticked, given the effective way in which the plaintiff functions.  She has remained fully employed, for example, and is in a stable relationship with her partner (which began subsequent to the accident) and their two children.  The plaintiff had six months of psychological counselling in the early stage and improved.  Dr Byth diagnosed adjustment disorder with depressed mood with some associated anxiety symptoms, following from the physical injuries.  He saw the plaintiff for a second time on 4 December 2009 reporting that depressive symptoms had vastly improved since 2005, were now of mild severity rather than moderate.  He thought this would last indefinitely, notwithstanding his recommendation for three months’ counselling by a psychologist.  The report says the plaintiff was:

“Attempting to be resolutely positive, however she appeared quite sensitive about the injuries and easily agitated in my interview, which I felt indicated they still have a significant affect on her psychological functioning.  She still appeared quite subjectively distressed about the injuries and their effects on her day-to-day life.”

The plaintiff has reports from Peter Stoker, a psychologist, of 28 January 2003 and 2 November 2009.  Favourable developments in the intervening years, including establishing her family and abatement of feelings of being badly disfigured led to dramatic change down from 35-37% permanent partial psychological disability to 10%.  Mr Stoker has now ventured a PIRS assessment of four.

  1. [51]
    There seems to be a paucity of “quantum cases”, the court being referred only to Mark Andrew Ross v The Brodie Tavern Pty Ltd [2004] QDC 367 and a number of unreported Supreme and District Court decisions considered there by Judge Newton.  Most of the decisions are burns cases, which would have involved agonising pain initially and considerable pain as injuries were treated and settled.  With one minor exception, the scarring was not to the head or neck area.  The plaintiffs were male.  Scarring consequent upon lacerations may be acceptable in the sense of not causing embarrassment in the case of males, depending on the circumstances (even on occasion have a certain cachet), but in our society, that is not the case for a woman.  It seemed to me the plaintiff’s facial and neck scarring, now that it has settled, is not at all dramatic; most would not characterise it as disfiguring.  However, the court ought to respect the plaintiff’s own reaction to it (she says, among other things, that it complicates relations with her children).
  1. [52]
    It should not be taken from the comment regarding the pain burns victims suffer that the plaintiff suffered no, or only limited pain. Mrs See referred to the pain her daughter suffered when dressings were being changed and Dr Byth opined that the psychiatric condition diagnosed by him was caused initially by difficulty coping with pain from injuries, “subsequently perpetuated by her upset over her cosmetic disfigurement from prominent scars”. However, there is no evidence from the plaintiff about pain, except as inherent in her evidence of ambulance personnel administering morphine.
  1. [53]
    My associate has located a couple of Supreme Court decisions which are closer to the present in featuring scarring consequent upon lacerations. See Hooper v King [2011] QSC 324 at [8]ff and Walton v Myers (Sheahan J, no. 1719 of 1981, 26 November 1982, BC 8221025).  I am uncertain how an award of $20,000 general damages in 1982 would convert to 2001 dollars.  Ms Walton’s problems included double vision and persisting headaches.  His Honour described the plaintiff as prepared to undergo surgery for the cosmetic repair of her forehead and said that he proposed to allow her a reasonable sum for that purpose in her damages.  No sum additional to the $20,000 was indicated.
  1. [54]
    I considered that some guidance might be gained by reference to the compensation table in the Criminal Offence Victims Act 1995, recognising that it is deliberately and notoriously parsimonious compared with likely awards in ordinary civil proceedings, with its scheme maximum of $75,000.  It seemed to me the relevant items, if this were a matter under the Act, would be:

“2. Bruising/Laceration etc. (severe) … 3%-5%

  1.  Facial disfigurement or bodily scarring (severe) … 10%-30%
  1.  Mental or nervous shock (moderate) … 10%-20%”.
  1. [55]
    Doing the best I can I would assess general damages for pain, suffering and loss of amenities at $50,000, which happens to be the mid point between the parties’ suggestions. Most of the amount should be allocated to the part. Two thirds of the plaintiff’s general damages should be attributed to the past. This is broadly consistent with the parties’ suggestions.
  1. [56]
    The court is asked to make a global award of $10,000 for past economic loss. Reliance was placed on Blaseto v Wilson (NSWCA, 17 May 1978, unreported – referred to in Luntz, Assessment of Damages for Personal Injury and Death (4th) para 5.2.7, footnote 99) for the proposition that real diminution in earning capacity causing economic loss should not go uncompensated because of the difficulty or even impossibility of producing evidence that will precisely quantify it.
  1. [57]
    In Queensland the Court of Appeal has described the approach to be taken in Nichols v Curtis [2010] QCA 303 at [29]-[30]:

“[29] In McDonald v FAI Insurance Thomas J said that, “When a plaintiff is shown to have had at least some earning capacity, and to have suffered some physical disability from an accident which might be expected to make the maintenance of employment somewhat more difficult, it is usual to make some allowance for economic loss.”[3] In this case the applicant had also given evidence that she had been required to preclude from her search for employment the category of work for which she seemed most suited.

[30] Thomas J went on to categorise many of the cases typically encountered:[4]

‘In a case where damage is capable of precise proof, and a plaintiff fails to produce such proof, no assessment (or a nil assessment) will be made (Sunley and Co. v Cunard [1940] 1 K.B. 740, 747; Woodham v Rasmussen (1953) St.R.Qd. 202, 215; Holmes v Jones (1907) 4 C.L.R. 1692, 1703, 1717; Ted Brown Quarries v General Quarries (1977) 16 A.L.R. 23, 37).  In cases where some loss has apparently been suffered but the plaintiff has failed to take the trouble to produce evidence that would reasonably be expected to be available, no more than a very conservative estimate of damages will be made (Minchin v Public Curator (1965) A.L.R. 91, 93; Ashcroft v Curtin [1971] 3 All E.R. 1208; Aerial Advertising Co. v Batchelors Peas [1938] 2 All E.R. 788, 796).  This may be contrasted with the familiar exercise of assessing damages upon issues which of their very nature are incapable of precise proof, such as future economic loss, and quite frequently, past economic loss, where the Courts do the best they can on necessarily imprecise matter.  (Malec (above); Chaplin v Hicks [1911] 2 K.B. 786, 795; Wheeler v. Riverside Coal Transport [1964] Qd.R. 113, 124; Biggen and Co. v. Permanite Ltd [1951] 1 K.B. 422, 438; Dessent v The Commonwealth (1977) 13 A.L.R. 437, 447).  Even in the cases of that kind a plaintiff is expected to place before the Court the essential facts upon which the necessary inferences and projections are to be made.  There is no difference in the approach of the Courts according to whether the case is based on contract or tort.  In all cases the extent of proof required depends upon the nature of the issue to be proved.‘

The plaintiff has not placed before the court those “essential facts”, so that nothing can be allowed under this head.  In the Court of Appeal matter the Court held there was sufficient evidence to justify an award of $8000 for past economic loss.

  1. [58]
    Although the defendant submits there is a lack of evidence to justify any assessment for loss of future earning capacity, I think that the combination of scarring with the psychological complications (those being the major factor) does compromise the plaintiff’s future earning capacity. $15,000 should be assessed under this head.
  1. [59]
    The defendant complained mightily of the escalation in the plaintiff’s claim for past care and assistance (Griffiths v Kerkemeyer) in respect of which in the initial statement of loss and damage filed on 5 April 2007 (dated 27 March 2007) 26 weeks of assistance at six hours per week at a rate of $15.00 per hour was claimed.  This escalated in the “plaintiff’s statement of loss and damage (no. 4)” dated 28 February 2012 and filed the following day to claims based on a rate of $20 per hour for $1,368 for the first three weeks and $7,680 for the next (or perhaps the balance of) six months.  For the first couple of weeks after discharge from hospital, the plaintiff went to her mother’s place.  Then she resided with Mr Brand, who provided the assistance she continued to need for a time with changing dressings, dressing herself, some cooking, transport to medical appointments and the like.  Particular mention was made of the need, especially in the early stages, to wash bed linen that had been soiled by discharge from the plaintiff’s wounds.  For a short time, the plaintiff had one arm in a cast, one in a sling.  Mr Brand and the plaintiff had been in a relationship which came to an end not long before her accident.  Doubt was not cast on the honesty of his (or Mrs See’s) evidence but its reliability was very much in question.  There seems to have been a last minute notion to get statements from them so late in the story that their ability to recall reliably what they had done for the plaintiff 10 years before is very much in question.  Much of what they did, it seems to me, was essentially keeping the plaintiff company and attempting to cheer her up, perhaps accompanied by some provision of services that she would have been completely capable of providing for herself.
  1. [60]
    It is not clear when the plaintiff moved from her mother’s to Mr Brand’s. None of the evidence is precise, but he puts it closer to the plaintiff’s discharge from hospital than she does (a couple of weeks). I think that Mr Brand is more likely to be correct on the basis that his services included driving the plaintiff in to work, which she resumed after three weeks away; Mrs See did not recall providing that service. It may be seen as a good example of a service that was not rendered necessary by physical limitations. The plaintiff was able to use public transport, but very understandably felt embarrassment about doing so.
  1. [61]
    While the defendant conceded that in particular cases, Griffiths v Kerkemeyer damages might be awarded for services by way of what might be called emotional support, as opposed to services by way of doing for an injured plaintiff things she cannot do herself, for example where it is desirable in the interests of the recovery of an injured child for a carer to remain nearby for much of the time, it was disputed that allowance ought to be made for things like preparing a meal and sitting down to eat it with the plaintiff.  The plaintiff supplied the court with references to Delborrello v Vinciullo [2000] WADC 15 and Vhako Rodulovic v Multiweld Engineering [2001] NSWSC 187.  The former was an unusual case in which the past unpaid services (for which $20,000 was allowed) consisted of assistance to an injured tradesman on his return to work to provide necessary assistance with heavier tasks.  Commissioner Reynolds said at 186:

“186 Finally I wish to make the point that if it be the case that some of the assistance provided to the plaintiff related to lighter duties, then I am of the opinion that allowance should still be made for it in the assessment. I say that for two reasons. First, the plaintiff suffered post traumatic stress disorder in addition to his back injury. The assistance provided to the plaintiff no doubt provided important emotional support and encouragement as well as physical assistance. Secondly, I have no doubt that heavy physical tasks were necessary at different times and spaced at various intervals during the working day. This would require an assistant to remain on site for more time than it would actually take in total to perform the heavier tasks. It would be unreasonable and impractical to expect an assistant to come and go during the course of the day.”

The reasons in the New South Wales case include the following:

“However before the injury the plaintiff’s wife was able to hold part-time employment while providing for her husband and children. Immediately after the plaintiff’s operation, his wife took leave from work to help him. Initially she helped him dress and bathe and took him to see doctors and to receive physiotherapy.

69 In March 1999 the plaintiff’s wife returned to work for three and a half months while the plaintiff’s mother performed household duties and took care of the plaintiff, by dressing him and cleaning up after his “accidents”. In August 1999 the plaintiff’s wife gave up work as she found it too difficult to meet all the demands made upon her in carrying out her household chores and caring for the plaintiff and the children. After the plaintiff was able to drive himself to various appointments, his wife found that the main additional task she had to perform as a result of the plaintiff’s injury was cleaning up after him. She needed to clean the toilet every day and sometimes up to three times a day. Generally it takes her about an hour to clean up after the plaintiff’s “accidents”. At the time of the hearing these “accidents” happened on average about once a week. The plaintiff’s wife also does more physical activity in the garden than she used to do, including mowing the lawns.

70 The plaintiff’s wife gave evidence that since his operation family life has centred more around the needs of the plaintiff than was the case before his injury. She described the plaintiff’s need of her as similar to that of a child. He requires reassurance from her that everything is running smoothly around him. There is little doubt that the plaintiff’s wife has been required at times to assist the plaintiff overcome his states of depression and anxiety arising from his physical disabilities and to generally offer him emotional support.

…

73 It is not in contest that for a period after the plaintiff’s operation his wife was in almost full-time care of him. This should be taken to be a period of four months from October 1998 to February 1999. The maximum amount that can be awarded is 40 hours per week. This is 40 hours @ $16.00 for 16 weeks, being a sum of $10,240.

74 From that time until November 1999 the plaintiff steadily improved and his wife was required to assist him less. She was still required to clean up after his “accidents” and drive him to appointments. An allowance over this period should be an average of 20 hours per week. This is 20 hours @ $16.00 for 36 weeks, being a sum of $11,520.

75 Thereafter, the plaintiff’s wife has been involved mainly in cleaning up after his “accidents”. This takes about an hour. She also used the lawn mower on occasions. She was required at times to give him emotional support although his periods of depression were becoming less frequent. …

76 The amount for past domestic assistance and nursing is, therefore, $30,080.

77 In the future the plaintiff’s wife will generally be required to clean up after his accidents and on occasions give him emotional support and encouragement. I do not believe that his depressive state will continue for the rest of his life although he is likely to have relapses when he will need support from his wife. It may well be that the conclusion of these proceedings will have a beneficial effect upon the plaintiff’s mental well-being.

78 The defendant submits that future care should be at the rate of 3 hours a week. The plaintiff initially claimed 20.5 hours but late in the day increased the claim to 40 hours. The increased claim appeared to be coincidental with a realisation that the maximum rate for payment under the Act was $16.00 in lieu of the $23.33 initially claimed. In my view a reasonable amount for future care involving the plaintiff’s wife is cleaning up after him and occasionally providing him with emotional support when averaged over the plaintiff’s life is 8 hours a week. This amounts to 8 hours @ $16.50 x 43.67 at 5% multiplier which amounts to $123,842.40.

79 The total award of damages is $1,495,027.73.”

That plaintiff was taken to have suffered a permanent loss of the efficient use of his legs, his bladder, his bowel and his sexual function.

  1. [62]
    Notwithstanding these decisions, I think that “emotional support”, (unless justified as necessary by appropriate expert evidence) or in other special cases, does not come within Griffiths v Kerkemeyer except to the extent that it is engrafted on provision of physical assistance that a plaintiff needs.  The evidence of Mrs See and Mr Brand does not in my opinion justify the escalation in this part of the claim, but it provides support for the claim as originally made.  The original claim was repeated in 2009. 
  1. [63]
    The plaintiff’s new approach of loading the gratuitous services in the early period is obviously sensible. The rate applied should be the one originally advanced and persisted in of $15.00 per hour I would allow 14 hours per week for five weeks, seven hours per week for the following four weeks, four hours per week for the four weeks after that and two hours per week for the following four weeks producing a total of 122 hours spread over 17 weeks, working out $1,830.00.
  1. [64]
    I am not persuaded that any future unpaid services will be necessary in connection with scar revision surgery that the plaintiff might undertake.
  1. [65]
    Turning to special damages, the parties are agreed that $520 should be allowed for travel expenses. Contentious is a claim for “Bio-Oil”, a proprietary skin preparation that the plaintiff finds helpful (and more helpful than other preparations she had tried) in keeping the scar tissue in good condition. The claim is substantial ($1,800) and another instance of the defendant claiming ambush by surprise additions to the statement of loss and damage, no mention of Bio-Oil or anything similar having been made until the eve of the trial. More significant is the claim for Bio-Oil for the next 30 years, $3288.00. There is no medical support for the plaintiff’s use of Bio-Oil. Mr Morton sought to turn to his client’s advantage a reverse in Bezant v Davis [2010] QFC 229 in which his then client plaintiff sought as part of her damages a sum to cover $65.00 per week for the balance of her life expectancy for chiropractic services, the judge in his reasons at [77]ff stating:

“77 Mr Morton contends that even if the chiropractic treatment amounted to no more than a placebo that nonetheless it would be reasonable to allow the claim as it was effective in relieving the plaintiff’s discomfort.

78 I do not think that there is any reason to disallow such claims, even though the effect may be no more than a placebo effect, where the plaintiff is in receipt of medical opinion from an apparently reputable source that the treatment ought to be attempted. The difficulty here is that there was no such advice, or at least no evidence of it.

79 That being so it seems to me that that submission cannot be right in principle. It certainly has the undesirable effect of opening the flood gates to claims by plaintiffs, who otherwise appear perfectly honest, to be paid what they please.”

In the result, his Honour considered that great great moderation is called for “… allowing a modest amount for future treatments of the type claimed” ([82]).

  1. [66]
    A similar approach is appropriate here. I think common experience says that a preparation like Bio-Oil might well be helpful and there is no reason to doubt the plaintiff’s genuiness in what she says about it. The effect she talks about is not likely to be a placebo one. Accepting what she says, it should be noted that she uses the preparation more generally than on her scars and that she purchases the product in small amounts regularly (at a cost that seems to be exaggerated in some places), when purchases of larger quantities would presumably be cheaper per unit. These past and future components should be allowed as to one half of them only.
  1. [67]
    Exhibit 31 is Dr McGovern’s estimate for the cost of future surgery still in contemplation – of $5345.56. I would discount this to 60% of the amount in the award to reflect the chance the plaintiff will resile from her present rather courageous stance that if there is an hope of a better result she will take the risk of surgery.
  1. [68]
    Agreed sums for the Queensland Ambulance Service ($706) and the fees of the Royal Brisbane Hospital ($2,732) should be included in the damages. They represent obligations the plaintiff has to meet at some time in the future and ought not to carry interest.
  1. [69]
    The agreed interest rate for (past) special damages is 5% which in the circumstances should be allowed for six years rather than ten. The same rate and the same period should be applied in respect of interest on past Griffiths v Kerkemeyer damages.  The established rate for general damages is 2%; again, this should be allowed for six years.
  1. [70]
    The claim must be dismissed for reasons set out above.

Footnotes

[1]The reasons of Judge Levy include the following:

“Breaches of the duties of care owed

[189] Having reached the conclusion that each of the defendants owed a duty of care with defined scope, it remains necessary to consider the liability and causation requirements of the Civil Liability Act 2002 in conjunction with common law considerations. For the reasons that follow, applying those considerations, I have concluded that each of the defendants was in breach of their respective duties of care, and they were therefore negligent.

S 5B of the CL Act applies to each defendant

[190] The breach relied upon by the plaintiff was the failure of the respective defendants to replace the door of the premises with safety glass in 1998 and folllowing. The plaintiff submitted that it was well known in 1998 that where glass being replaced was likely to be the subject of human impact, it was appropriate to replace broken glass with safety glass : Ex “C”, p 100. The plaintiff submitted this obligation rested on each defendant.

[191] That submission has to be evaluated in light of s 5B of the CL Act. In my view the requirements of s 5B have been fulfilled in this case.

[192] First, it must have been known to the defendants that glass doors in the premises were liable to become broken : s 5B(1). This could have been for a variety of reasons. This is plain from the very nature of glass that it is common knowledge in the community. It was also known to the defendants from the history of break-ins at the premises and, in 1998, the need to engage someone to replace glass that was broken.

[193] Secondly, it must have been within the common knowledge of the defendants that one of the means by which a glass panel in an entry door could become broken included breakage by human impact, either by deliberate means, as occurred during a break-in to the premises, or due to possible inadvertence. Either way, the risk of injury due to human impact with a glass door on the premises was not a remote, flimsy or fanciful risk. In my view the occurrence of a lacerating injury as a consequence of human impact with a glass door on the premises was reasonably foreseeable at all relevant times, at least from 1998 and up to, and including the time of the injury : s 5B(1)(b).

[194] Thirdly, if there was human impact with a glass panelled door, the probability of the occurrence of harm arising from a lacerating injury was high, justifying the taking of precautions against the risk of such harm. The potential for a serious lacerating injuries was real : s 5B(2)(a) and (b).

[195] Fourthly, when the burden of taking precautions is prospectively weighed, it is plain on the evidence that the burden of taking precautions against harm due to a lacerating injury from broken glass were not unduly burdensome as there was no great difference in cost between using annealed and safety glass when replacing a broken glass door panel : s 5B(2)(c). In my view this analysis extended to the circumstances where, in this case, the replacement of broken annealed glass to the bedroom door in 1998 raised questions as to whether annealed glass in other doors, particularly the main entry door, should also be undertaken because of the real prospect that injury could occur at those locations, due to human impact.

[196] Fifthly, a consideration of the social utility of the activity giving rise to the risk of harm did not contra-indicate the need to take precautions. The provision of rental housing has a high social utility. The risk of injury and disability due to inadequate consideration of the need to take safety precautions has no social utility : s 5B(2)(d).

[197] Sixthly, taking these considerations into account, I consider that in 1998, and following, a reasonable person in the position of either of the defendants would have taken the precaution of installing safety glass where annealed non-safety glass was shown to have been located in doors in the premises where human impact was reasonably foreseeable : s 5B(1)(c). I reject the submission made by the second defendant agent that the risk was so insignificant that no reasonable person would have taken precautions against such a risk.

Facts common to both defendants

[198] In 1998 a glass door to the bedroom of the premises became broken and required minor repairs by way of glass replacement. On that occasion, the first defendant’s agent, with the knowledge of the first defendant, employed a handyman cleaner, Mr Bechara, who was not a glazier, to inspect the damage and to effect glass repairs. On that occasion, neither defendant employed a glazing contractor to repair the broken glass. This conclusion is supported by the absence of any invoice from glazing contractors for the repair works.

[199] It is plain from the expert evidence that if a glazing contractor had been employed, in accordance with practice in the glazing industry at the time, a recommendation would most probably have been given to replace non-safety glass in areas of foreseeable possible human impact, as was required by Australian Standard AS 1288, as was explained by Dr Cooke. As Dr Cooke is an architect, familiar with the application of the standard to building repairs at the relevant time, I prefer his evidence on the interpretation and application of the standard to the interpretation of Dr Jacob, whose expertise on building matters, as distinct from building materials, was less relevant and less extensive.

Breach of duty of care by the second defendant managing agent

[200] The agent was the first line of enquiry and point of consideration concerning the repairs to broken glass in the premises. In my view it failed to discharge its duty by retaining and supervising a suitably qualified contractor, as the first defendant RTA required it to do.

[201] Instead of employing a suitably qualified contractor, the agent retained a handyman cleaner who was not a qualified glazier. In doing so, the agent failed to ensure compliance with the applicable building codes and standards, notably AS 1288 as was explained by Dr Cooke. That standard required replacement glass to be safety glass as there were no chair rails fitted to the glass door of the premises. A glazier ought to have known this, a handyman cleaner would perhaps have been excused from being aware of the requirements of the standards.”

[2] Dr Rigg (“Medico-Legal Consultant – Plastic Surgery”) could not be located. His report of 7 January 2003 was admitted under s 92 of the Evidence Act 1977. He thought that while the visible scars were not appropriate for cosmetic improvement all scars were suitable for revision in two stages, each estimated to cost $5300.00.

[3] McDonald v FAI General Insurance Co Ltd [1995] QCA 436 at pp 5 to 6.

[4] McDonald v FAI General Insurance Co Ltd [1995] QCA 436 at pp 6 to 7.

Close

Editorial Notes

  • Published Case Name:

    Jodie Smith v Body Corporate for Professional Suites Community Title Scheme 14487

  • Shortened Case Name:

    Smith v Body Corporate for Professional Suites Community Title Scheme 14487

  • MNC:

    [2012] QDC 49

  • Court:

    QDC

  • Judge(s):

    Robin DCJ

  • Date:

    30 Mar 2012

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2012] QDC 4930 Mar 2012Ms Smith suffered severe injuries when she fell through a glass wall in foyer of office building. Ms Smith contended that the body corporate ought to have known that the glass had a propensity to break into dangerous shards and ought to have been removed. Claim for damages for personal injuries dismissed: Robin QC DCJ.
Appeal Determined (QCA)[2013] QCA 8012 Apr 2013Leave to appeal granted. Appeal dismissed: Fraser JA and Fryberg J concurring, Margaret McMurdo P dissenting in part.
Special Leave Refused (HCA)File Number: B23/13 [2013] HCATrans 28408 Nov 2013Special leave to appeal refused with costs: Hayne and Gageler JJ.

Appeal Status

Appeal Determined - Special Leave Refused (HCA)

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Cases Citing

Case NameFull CitationFrequency
Smith v Body Corporate for Professional Suites Community Title Scheme 14487 [2013] QCA 8017 citations
Smith v Body Corporate for Professional Suites Community Title Scheme 14487 (No. 2) [2012] QDC 1211 citation
1

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