MacPherson v Proprietors of Strata Plan 10857 & Anor

[2003] NSWCA 96

NEW SOUTH WALES COURT OF APPEAL

CITATION:      MacPherson v Proprietors of Strata Plan 10857 & Anor [2003]  NSWCA 96

FILE NUMBER(S):
40474/02

HEARING DATE(S):               24/04/03

JUDGMENT DATE: 24/04/2003

PARTIES:
John William MacPherson - Appellant
Proprietors of Strata Plan 10857 - Respondent

JUDGMENT OF:       Sheller JA Hodgson JA Gzell J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          4188/00

LOWER COURT JUDICIAL OFFICER:     Phegan DCJ

COUNSEL:
Mr Andrew Scotting/Mr Charles Carroll - For the Appellant
Mr a G Jamieson - For the Respondent

SOLICITORS:
Stewart Green Mijovich, Solicitors
Moray & Agnew, Solicitors

CATCHWORDS:
TORTS - Negligence - General Matters - Appellant struck when a steel arm attached to a steel mesh garage door broke free - Door attended to from time to time by second defendant - Whether the principle in Wyong Shire Council v Shirt was applied - Whether insufficient weight was given to earlier occasion when chain detached from the door and struck a motor vehicle - Whether defect in chain rendered it unnecessary to establish foreseeability of a risk of injury from a porous weld on the steel arm - Whether the respondent should have sought a second expert opinion - Whether the respondent should have entered into a maintenance agreement with respect to the garage door.

LEGISLATION CITED:

DECISION:
Appeal dismissed with costs

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL  

40474/02

SHELLER JA
HODGSON JA
GZELL J

THURSDAY 24 APRIL 2003

JOHN WILLIAM MACPHERSON v PROPRIETORS OF STRATA PLAN 10857 AND ANOR

Judgment

1. SHELLER JA: Gzell J has stated his reasons for the Court’s decision to dismiss the appeal with costs. I agree with those reasons.

2. HODGSON JA: I agree with Gzell J.

3. GZELL J: On 24 April 2003 the Court dismissed this appeal with costs, indicating that it would give its reasons later.

4. The appellant occupied a unit contained in the strata plan of which the respondent was the owners’ corporation. He was struck on the head when a steel arm attached to a steel mesh garage door at the premises broke free from the door. The respondent was the occupier of the common areas of the premises including the garage and its door.

5. In the court below, Phegan DCJ gave judgment in favour of the appellant against the second defendant, the company that attended to repairs and maintenance on the door from time to time. His Honour gave judgment for the respondent against the appellant. It was from that portion of the judgment that the appeal arose.

6. The garage door had steel arms attached to the bottom extremities of the door. The steel arms were anchored at fulcrum points on each side of the garage entrance and acted as levers turning about those points to rotate the door upwards to a horizontal position and to lower it to a vertical position. Motive power was provided by a motor and chain attached to the door.

7. When the appellant returned to the block of units on the afternoon of 25 August 1997, the garage door was half way between its closed position and its open position. The appellant used his remote control device without success. He was joined in the driveway by Sue Cooper another occupier and the secretary of the respondent. Her remote control device successfully opened the door and they parked their vehicles in the garage. They later returned to the garage to attend to the open door. Neither remote control operated the door. They switched it to manual and closed it without the aid of the electric motor.

8. The appellant made some comment about the condition of the join of one of the arms to the bottom of the door. He had experience as a welder and his recollection was that he described the welded joint as porous. Ms Cooper’s recollection was that he pointed out that there should have been two bolts rather than one connecting the arm to the door and the one bolt appeared to be rusty. Ms Cooper’s recollection was that this conversation took place with the door closed.

9. The door was subsequently opened again and the appellant went outside the garage while Ms Cooper remained in it. Ms Cooper thought the door looked crooked. The appellant’s recollection was that the discussion took place with the door open when he was outside. He noticed a flexing in the plate on the lower extremity of the door to which one of the arms was fixed. While he was standing in this position, that arm detached from the elevated door and struck him on the side of the head causing serious physical injury.

10. In rejecting liability on the part of the respondent, his Honour said:

    “What the evidence fails to show is any knowledge, actual or implied, on the part of the first defendant, that the door was dangerous and it is only if that knowledge is established that liability on the ordinary principles of negligence which apply in this case to the first defendant as the occupier of the building, would apply to render the first defendant liable.”

    His honour went on to say:

    “… it must be part of the plaintiff’s case if the plaintiff is to succeed, that there was knowledge, actual or imputed, on the part of the first defendant of the possibility that this door might be dangerous and therefore likely to cause injury of a kind suffered by the plaintiff.”

11. It was submitted that his Honour adopted an incorrect approach. It was not a matter of actual or imputed knowledge but rather whether a reasonable person in the respondent’s position would have foreseen that its conduct involved a risk of injury to the appellant or to a class of persons including the appellant and, if so, what would a reasonable person do by way of response to the risk (Wyong Shire Council v Shirt (1979-1980) 146 CLR 40 at 47).

12. Counsel for the appellant accepted that the respondent had no actual knowledge that there was a danger that the arm might part from the bottom of the garage door. His Honour did not say what he meant by implied or imputed knowledge but he was well aware that the ordinary principles of negligence applied. He had earlier cited Australian Safeway Stores Pty Ltd v Zaluzna (1986-1987) 162 CLR 479 in which it was held that an occupier owed a duty of care under the ordinary principles of negligence, a prerequisite of which was that there be the necessary degree of proximity of relationship, the touchstone of the existence of which was reasonable foreseeability of a real risk of injury to the entrant or to the class of persons of which the entrant was a member and the measure of discharge of which was what a reasonable person would do in the circumstances by way of response to the foreseeable risk.

13. Reference was also made by his Honour to Papantonakis v Australian Telecommunications Commission (1984-1985) 156 CLR 7, Northern Sandblasting Pty Ltd v Harris (1996-1997) 188 CLR 313 and to Jones v Bartlett (2000) 205 CLR 166.

14. In my opinion Phegan DCJ applied the principles in Shirt and what he meant by implied or imputed knowledge was reasonable foreseeability by a reasonable person of a risk of injury.

15. His Honour found that, from the time of its installation, the garage door had been the source of continuing inconvenience to the occupiers of the building. The electric motor was of a domestic quality, not adequate for the level of use required of the door in a block of units. It often failed to respond to the remote control devices. Occasionally, it responded to a remote control if some time was allowed to elapse between a first attempt to open the door and a subsequent one. The usual method of dealing with the problem was to disconnect the electric motor and to operate the door manually.

16. Phillip Shelley was the chairman of the respondent. He experienced inconvenience in the persistent non-response of the door to his remote control device. His Honour was critical of Mr Shelley’s demonstrable disinterest in the problems associated with the garage door. His Honour found that Mr Shelley was the principal architect of a policy on the part of the respondent of minimising expenditure and avoiding any unnecessary drain on funds. Notwithstanding advice from the second defendant that the motor was insufficient for its purpose and should be replaced, there were more pressing demands on the respondent’s funds and no decision was made to undertake the expense of replacing the door, notwithstanding the constant breakdowns, until after the appellant’s accident.

17. Mr Michael Harker occupied one of the units. He said that when he had difficulty with the garage door not responding, he found he could free the door by hand where it was jamming in the corners and, once freed, it responded to his remote control. Mr Harker said he reported the jamming problem to Mr Shelley within twelve months of the appellant’s injury.

18. James Coleman was also the occupier of a unit. He, too, had problems with the non-response of the door to his remote control, a problem he reported to Ms Cooper. On one occasion, about two weeks before the appellant’s accident, while he was driving into the garage, the chain detached from the door and fell onto his car and the door slammed behind him. He was able to reassemble the mechanism by reattaching the chain to a plug between the chain attached to the door and the chain attached to the motor. Mr Coleman said he reported the incident to Ms Cooper.

19. Mr Neale Breden was the operative manager of the building, employed by the strata managers. As strata manager, Mr Breden retained the second defendant. Over the period from the end of October 1994 until 30 May 1997, it attended to the garage door on ten separate occasions. As his Honour found, the work carried out varied. In some instances it involved replacement of worn parts. On others it involved more general maintenance work such as adjustments and lubrications. On 28 May 1997 a broken idler wheel and chain were replaced and an outside key switch was relocated. The second defendant attended the site again on 30 May 1997 but the invoice did not indicate the nature of the work performed.

20. In analysing this evidence, his Honour concluded that it did not go far enough to suggest that Mr Shelley was aware of the dangerous state of the garage door. His Honour said that if Mr Harker’s evidence that he reported the jamming of the door to Mr Shelley was preferred to Mr Shelley’s denial of a report, notice of the jamming of itself did not suggest to a person without any expert qualifications that the door might be in a condition, or might subsequently acquire a condition, sufficient to cause it to disconnect in a way that occurred. His Honour also concluded that it was reasonable for the respondent to assume that if there was a problem of that kind, it was addressed by the second defendant.

21. In analysing the evidence in this way, it seems to me that his Honour did consider whether a reasonable person in the position of the respondent would have foreseen that the garage door presented a risk of injury to the plaintiff or to the class to which he belonged. In my view the appellant failed to demonstrate that his Honour applied a wrong principle.

22. It was submitted that in finding that the respondent had not breached the duty of care it owed to the appellant, his Honour gave insufficient weight to the incident involving Mr Coleman. His Honour referred to the incident when the chain fell onto Mr Coleman’s car. While he did not refer to the incident again, it was not demonstrated that his Honour failed to give that incident sufficient weight.

23. The appellant contended that the principles in Shirt, properly applied, led to the conclusion that a reasonable person in the position of the respondent would have foreseen that its conduct involved a risk of injury to the appellant or to the class of persons to which the appellant belonged. It was submitted that the conduct in question was the respondent’s failure to replace the garage door, to engage another expert to provide a second opinion on the safety of the door, or to enter into a maintenance agreement with respect to it. 

24. It was submitted that the parting of the chain that left the garage door unrestrained, experienced by Mr Coleman was a like kind of defect to the porous weld on the metal arm and it was not necessary for the risk of injury from a porous weld to be foreseeable. It was foreseeable that the chain might part and the porous weld was a defect of a similar kind.

25. The argument that reasonable foreseeability of the risk that the steel arm might detach from the garage door was established by the reasonable foreseeability that the chain might detach from the plug should, in my view, be rejected.

26. Reliance for this proposition was placed upon the analysis by Heydon JA of a number of authorities in NSW Land & Housing Corporation v Watkins (2002) Aust Torts Reports 81-641 at par 87 to par 91.

27. Reference was made to Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 in which the plaintiff went to the assistance of a severely burned colleague following an electrical accident and thereafter developed the serious mental illness of schizophrenia. The court held that it was unnecessary that schizophrenia was foreseeable. It was sufficient that mental disorder as a class of injury was foreseeable as the possible consequence of the conduct in question. The case is authority for the proposition that it is not necessary that the particular injuries suffered by a plaintiff should be foreseeable if the class of injury is foreseeable as a possible consequence of particular conduct.

28. That authority does not support the proposition that if an object is shown to be defective in one respect and injury is caused by some other defect, it is no answer to a claim for breach of duty to demonstrate that the second defect was not reasonably foreseeable.

29. In Hughes v Lord Advocate [1963] AC 837 it was reasonably foreseeable that an unprotected paraffin lamp knocked over in the street would cause a burning injury due to the ignition of the split oil. The paraffin lamp was knocked into a manhole, the paraffin vaporised and the resulting gas was ignited causing a burning injury due to an explosion. While the particular chain of events was not foreseeable, the injury was caused by a known source of danger, the paraffin lamp.

30. That decision does not assist the appellant. His injuries were not caused by a known source of danger (if it was a source of danger) associated with the parting of the chain. His injuries stemmed from the parting of the metal arm from the base of the garage door.

31. In Chapman v Hearse (1961) 106 CLR 112 a doctor went to the aid of a negligent driver of a motor vehicle thrown to the highway when his car collided with another vehicle. The doctor was killed when struck by a car driven by the defendant. The defendant joined the injured negligent driver as a third party. It was held that the third party was under a duty vis à vis the doctor to exercise reasonable care in the management of his vehicle. In arriving at that conclusion, the Court cited with approval a passage from the judgment of Greer LJ in Haynes v Harwood [1935] 1 KB 146 at 156 that it was not necessary to show that the particular accident and the particular damage were probable, it was sufficient if the accident was of a class that might well be anticipated as one of the reasonable and probable results of the wrongful act. The High Court went on to say, at 120-121, that in order to establish the existence of a duty of care with respect to a plaintiff subsequently injured as the result of a sequence of events following a defendant’s carelessness, it was not necessary to show that the precise manner in which the injuries were sustained was reasonably foreseeable: it was sufficient if it appeared that injury to a class of persons of which he was one might reasonably have been foreseen as a consequence.

32. Again, neither the High Court decision nor the passage from the judgment of Greer LJ support the appellant’s proposition that the known defect with respect to the chain attached to the garage door meant it was unnecessary to establish that a risk of injury from the porous weld was foreseeable.

33. In Commonwealth v McLean (1996) 41 NSWLR 389, a seaman on HMAS Melbourne, when it collided with and sank HMAS Voyager, claimed that as a result of his experiences on the night of the collision he suffered post-traumatic stress disorder and as a result, over the next thirty years, he drank and smoked to excess which caused him to develop a throat cancer. In reliance on the above passage from Chapman, this Court at 403 concluded that a wrongdoer was responsible for all damage of the same type or kind as that which was reasonably foreseeable even if the particular damage, or its extent, was not reasonably foreseeable, or the damage occurred in an unexpected and unforeseeable manner.

34. That decision does not assist the appellant’s argument that foreseeability of the risk of injury from the detachment of the chain on the garage door rendered it unnecessary to consider the foreseeability of the risk of injury from any other defect in the garage door.

35. Reference was also made to Tame v New South Wales (2002) 191 ALR 449 but, again, it does not support the proposition advanced by the appellant.

36. The chain and its attachment to the garage door at the one end and to the plug connected to the chain to the motor at the other end, were far removed from the connection of the metal arm to the lower extremity of the door as a source of danger. A defect in the one heralded nothing as to a possible defect in the other. In my view, Phegan DCJ was correct in his conclusion that the risk of injury from the defective connection of the metal arm to the garage door was not reasonably foreseeable by a reasonable person in the position of the respondent.

37. As to the alleged impugned conduct of the respondent, the subsequent replacement of the garage door was not evidence of negligence, but evidence only of what could have been done (Watkins at par 78). There were competing calls upon the finances of the respondent that succeeded in preference to the replacement of the garage door, the dictates for which lay in inconvenience rather than safety.

38. As his Honour found, there was nothing in the evidence to put the respondent on guard as to the safety of the garage door other than the remote issue of the potential detachment of the chain from the door. Equally, there was nothing in the evidence to suggest that the services provided by the second defendant from time to time were deficient. The appellant failed to establish that the respondent was under a duty to seek a second expert opinion with respect to the safety of the garage door.

39. Finally, as to the allegation that the respondent should have entered into a maintenance agreement with respect to the garage door, his Honour pointed out that Mr Breden, based on his extensive experience as a strata manager, said that the relatively small size of the building did not justify expenditure on a maintenance agreement.  

40. In my view his Honour was correct in rejecting the allegation that the respondent was in breach of its duty of care to the appellant.

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LAST UPDATED:     11/06/2003