Minister for Education v Shire of Northam
[2016] WADC 42
•24 MARCH 2016
MINISTER FOR EDUCATION -v- SHIRE OF NORTHAM [2016] WADC 42
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WADC 42 | |
| Case No: | CIV:2958/2014 | 27, 28 & 29 JANUARY 2016 | |
| Coram: | MCCANN DCJ | 24/03/16 | |
| PERTH | |||
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Judgment for the plaintiff | ||
| PDF Version |
| Parties: | MINISTER FOR EDUCATION SHIRE OF NORTHAM |
Catchwords: | Personal injuries Claim by employer for an indemnity in respect of workers' compensation paid to an injured worker Section s 93(1)(b) of the Workers' Compensation and Injury Management Act (1981) Occupier's liability of the defendant to the worker Turns on own facts |
Legislation: | Civil Liability Act 2002 s 5B and s 5W Occupiers Liability Act 1985 s 5(1) and s 5(4) Workers Compensation and Injury Management Act 1981 s 93(1)(b) |
Case References: | Beer v Duracraft Pty Ltd [2004] WASCA 192 Briginshaw v Briginshaw (1938) 60 CLR 336 Chamberlain v The Queen (No 2) (1984) 153 CLR 521 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Jones v Dunkel (1959) 101 CLR 298 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 Pollock v Wellington (1996) 15 WAR 1 Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370 Ramsay v Watson (1961) 108 CLR 642 Shire of Manjimup v Cheetham [2010] WASCA 225 Swick Nominees Pty Ltd t/as Swick Drilling Australia v Norncott Pty Ltd [No 3] [2013] WASC 173 Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
SHIRE OF NORTHAM
Defendant
Catchwords:
Personal injuries - Claim by employer for an indemnity in respect of workers' compensation paid to an injured worker - Section s 93(1)(b) of the Workers' Compensation and Injury Management Act (1981) - Occupier's liability of the defendant to the worker - Turns on own facts
Legislation:
Civil Liability Act 2002 s 5B and s 5W
Occupiers Liability Act 1985 s 5(1) and s 5(4)
Workers Compensation and Injury Management Act 1981 s 93(1)(b)
Result:
Judgment for the plaintiff
Representation:
Counsel:
Plaintiff : Mr D Clyne
Defendant : Mr J Eller
Solicitors:
Plaintiff : Spark Helmore Lawyers
Defendant : John Eller
Case(s) referred to in judgment(s):
Beer v Duracraft Pty Ltd [2004] WASCA 192
Briginshaw v Briginshaw (1938) 60 CLR 336
Chamberlain v The Queen (No 2) (1984) 153 CLR 521
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Jones v Dunkel (1959) 101 CLR 298
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361
Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Pollock v Wellington (1996) 15 WAR 1
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
Ramsay v Watson (1961) 108 CLR 642
Shire of Manjimup v Cheetham [2010] WASCA 225
Swick Nominees Pty Ltd t/as Swick Drilling Australia v Norncott Pty Ltd [No 3] [2013] WASC 173
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422
- MCCANN DCJ:
Introduction
1 In this matter the plaintiff claims an indemnity from the defendant pursuant to s 93(1)(b) of the Workers' Compensation and Injury Management Act 1981 (the Act) in respect of personal injuries suffered by an employee of the plaintiff, Ms Jane Pisan, in the course of her employment on 12 June 2013.
2 At all material times Ms Pisan was employed by the plaintiff at the Northam Senior High School and was a 'worker' as defined in s 5 of the Act.
3 The defendant owns and operates the Northam Recreation Centre (the Recreation Centre) at 44 Peel Terrace, Northam. It was built and completed in late 2011 and includes an indoor sports hall with a polished wooden floor.
4 In late 2011 the defendant's recreation manager, Mr Colin Hassell, purchased 270 Ikea - brand Martin chairs for use in the Recreation Centre.
5 Mr Hassell and at least two other employees assembled the chairs following written instructions (exhibits 4 and 5).
6 The defendant regularly made the sports hall available for hire and/or use for community purposes. It was common for the defendant to furnish and set out seating on the wooden floor using the Martin chairs.
7 On 11 and 12 June 2013 an organisation called 'Youth Forum' held an event at the Recreation Centre. Students from the Northam Senior High School attended.
8 Ms Pisan supervised them. Whilst she was sitting on it a Martin chair spontaneously collapsed under her. She suffered a serious knee injury.
9 Ms Pisan was entitled to workers' compensation pursuant to the Act and received $218,213.74 from the plaintiff.
The legislation
10 Section 93(1) of the Act provides as follows:
93. Remedies against non-employers
(1) Where the injury for which compensation is payable under this Act was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof but neither the employer nor any person for whose negligence the employer is legally responsible was negligent —
(a) the worker may take proceedings both against that person to recover damages and against any person liable to pay compensation under this Act for such compensation, but shall not be entitled to recover both damages and compensation and shall bring to account in reduction of his entitlement to compensation the amount recovered by way of damages;
(b) the employer is entitled to be indemnified by the person whose negligence caused the injury to the worker (in this section called the defendant) to the full extent of the employer's liability to pay compensation under this Act, whether or not the defendant has discharged his liability to pay damages to the worker by judgment or by settlement or otherwise.
12 Section 5 of the OLA provides as follows:
5. Duty of care of occupier
(1) Subject to subsections (2) and (3) the care which an occupier of premises is required by reason of the occupation or control of the premises to show towards a person entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible shall, except in so far as he is entitled to and does extend, restrict, modify or exclude by agreement or otherwise, his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger.
(2) The duty of care referred to in subsection (1) does not apply in respect of risks willingly assumed by the person entering on the premises but in that case the occupier of premises owes a duty to the person not to create a danger with the deliberate intent of doing harm or damage to the person or his property and not to act with reckless disregard of the presence of the person or his property.
(3) A person who is on premises with the intention of committing, or in the commission of, an offence punishable by imprisonment is owed only the duty of care referred to in subsection (2).
(4) Without restricting the generality of subsection (1), in determining whether an occupier of premises has discharged his duty of care, consideration shall be given to —
(a) the gravity and likelihood of the probable injury; and
(b) the circumstances of the entry onto the premises; and
(c) the nature of the premises; and
(d) the knowledge which the occupier of premises has or ought to have of the likelihood of persons or property being on the premises; and
(e) the age of the person entering the premises; and
(f) the ability of the person entering the premises to appreciate the danger; and
(g) the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.
14 Sections 5B and 5W of the CLA provide as follows:
5B. General principles
(1) A person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless —
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) —
(a) the probability that the harm would occur if care were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the social utility of the activity that creates the risk of harm.
5W. Principles concerning resources, responsibilities etc. of public body or officer
The following principles apply in determining whether a public body or officer has a duty of care or has breached a duty of care in proceedings in relation to a claim to which this Part applies —
(a) the functions required to be exercised by the public body or officer are limited by the financial and other resources that are reasonably available to the public body or officer for the purpose of exercising those functions;
(b) the general allocation of those resources by the public body or officer is not open to challenge;
(c) the functions required to be exercised by the public body or officer are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate);
(d) the public body or officer may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceedings relate.
The pleadings and issues
16 The plaintiff contends that Ms Pisan's accident was reasonably foreseeable to the defendant because, to its knowledge, it was not an isolated occurrence. In particular, the plaintiff points to the fact (see below) that numerous Martin chairs had collapsed in similar circumstances in the previous 18 months.
17 The plaintiff pleads that Ms Pisan's accident was caused by the negligence of the defendant, or its servants or agents by failing to:
(i) Take reasonable steps to ensure that chairs available for use at the Premises were properly assembled.
(ii) Provide adequate or proper supervision or training of its employees or agents in the assembly of the chairs.
(iii) Take reasonable steps to ensure that the chairs were safe for use.
(iv) Take reasonable steps to maintain the chairs.
(v) Properly inspect the chairs, by putting them out for the use of the public within the premises; and
(vi) Failing to isolate (ie withdraw) any defective chairs to ensure that they were not used.
18 The plaintiff did not explicitly plead that the defendant should have withdrawn all of the Martin chairs from use (ie, replace them, as later occurred: see [67]). However, that was undoubtedly its case at trial (Outline of Opening Submissions at par 19). In the light of the evidence and the conduct of the parties' cases, the defendant was in no way prejudiced by the failure to plead this particular and I allowed it to be relied upon by the plaintiff.
19 The defendant contends that the accident was not reasonably foreseeable.
20 It also contends that it was not reasonable to require it, in discharging its duty of care, to withdraw and replace all of the Martin chairs.
Evidentiary principles
21 I am required to make findings on the ultimate issues on the balance of probabilities based on a body of direct and circumstantial evidence.
22 In a circumstantial case an ultimate fact is taken to be proven if the court is satisfied (ie, can infer) based on the whole of the evidence that it is more probable than not that the fact occurred or exists (Chamberlain v The Queen (No 2) (1984) 153 CLR 521, 536, (Gibbs CJ and Mason J)). By 'more probable is meant no more than that upon a balance of probabilities … an inference might reasonably be considered to have some greater degree of likelihood' than others that are open (Jones v Dunkel (1959) 101 CLR 298, 310 (Menzies J)).
23 But, being satisfied as to the standard of proof is not an arithmetical exercise. I am required to be actually persuaded as to the probability of a fact being true (Briginshaw v Briginshaw (1938) 60 CLR 336). Nor should I confuse mere conjecture with reasoned conclusion (Jones v Dunkel (305) (Dixon CJ), 309 – 310 (Menzies J)).
24 Inferences 'from actual facts that are proved are just as much part of the evidence as those facts themselves' (Jones v Dunkel (309) Menzies J)).
25 I am also mindful that a circumstantial case which is reliant on deduction by a process of elimination is potentially fraught with the fallacy that a hypothesis is correct merely because it is the only one left. Findings must be supported by evidence and an assumption is not evidence (Swick Nominees Pty Ltd t/as Swick Drilling Australia v Norncott Pty Ltd [No 3] [2013] WASC 173).
26 The assessment of the credibility or reliability of evidence is a multi-factorial task. The appearance and demeanour of witnesses are relevant factors, but there is a danger in too readily drawing conclusions about truthfulness and reliability solely or mainly from such considerations. Judges are encouraged to 'limit their reliance on the appearance of witnesses and reason to their conclusion, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events' (Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, [30] - [31] (Gleeson CJ, Gummow, Kirby JJ)).
27 It is also useful to take into account the cooperativeness and frankness of witnesses and their willingness to make concessions.
28 An expert is permitted to give evidence of an opinion (which would otherwise be hearsay) with respect to a factual issue which requires expert elucidation if he or she is qualified by training or experience to do so. Opinion evidence is admissible for the purpose of assisting the court to make findings of fact.
29 Opinion evidence, and findings derived from the same, must be based upon facts or stated assumptions that are proven (or bear sufficient correlation to facts which are proven) and must be explained in such a way that the court can comprehend it and make the necessary findings, or at least understand why it should be adopted or deferred to. (Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370; Pollock v Wellington (1996) 15 WAR 1, 3 (Anderson J); Beer v Duracraft Pty Ltd [2004] WASCA 192 [78] – [80] (McLure J); and Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, [64] (Heydon JA)).
30 As with lay witnesses, the court is entitled to accept all of a particular expert's evidence, or none of it, or accept some and reject the rest, or simply put it to one side (Ramsay v Watson (1961) 108 CLR 642, 645). In this way findings can be drawn from evidence and opinions of more than one expert, irrespective of who adduced the evidence.
31 The assistance to be derived from expert evidence, ie, its weight, may also depend to some extent on the degree of specialisation involved in the relevant expert field, because some fields are more esoteric than others.
32 In very technical or esoteric areas (of which structural engineering is an example) the purpose of expert evidence is not to educate the court so that it may then form and rely upon its own view. The court must adhere to its proper forensic role. In this case the evidence of Mr Max Naismith was not challenged and I have accepted it.
The Martin chair
33 I make the following findings about the design and construction of the Martin chair:
(i) The chair comprised two basic components which were screwed together, namely the seat and a tubular metal base with four legs.
(ii) The seat consisted of black-coated, moulded plywood.
(iii) The base consisted of two identical u-shaped tubes which were bolted to each other at right angles at their mid-point to create the four legs.
(iv) The base was screwed to the underside of the seat by four steel fixing plates (one each on the upper, horizontal section of each leg).
(v) A plastic shoe (ie cover) was bolted over each of the fixing plates for cosmetic purposes.
(vi) A hard, smooth plastic cap was placed over the bottom of each leg to prevent damage to the floor.
34 A broken Martin chair was tendered in evidence (exhibit 3). The base and seat had obviously been forced apart. There was some confusion about whether this was the chair that Ms Pisan had been sitting on or another damaged one. It matters not because, on the evidence, I am satisfied that they all looked the same after they collapsed. That is to say (based on exhibit 3), the base and the four fixing plates (and screws) remained intact and came away from the seat as one unit.
Expert evidence and findings as to causation
35 Mr Max Naismith is a structural engineer. He was provided with exhibit 3 and briefed by the defendant to advise on the cause of its collapse for the purpose of these proceedings. He made various enquiries of his own.
36 In his opinion, the Martin chair was ill-designed for use on polished floors because the hard plastic caps on the bottom of each leg were too hard and smooth to facilitate friction between them and the surface of the floor. This, in turn, allowed excessive torsional forces to develop in the base when a chair was placed under load. This created a domino effect in which all four fixings failed and the seat collapsed to the floor. He said that the problem would be exacerbated when a chair was used on a polished wooden floor (as opposed to tiled floor) as the polish would tend to build up on the plastic surface of the caps.
37 Mr Naismith considered another hypothesis, namely that the handling of the chairs (especially during loading and unloading) could work the fixings loose, particularly the central bolt in the base, which in turn would cause the base to mis-align and, again, alter the torsional forces. For that reason, he felt that a lock-type nut would be preferable to the system that was actually used in the Martin chair.
38 On balance, Mr Naismith concluded that the cause of the collapse of exhibit 3 (and the other Martin chairs which failed) was the first hypothesis, namely that the chairs were ill-designed and ill-suited for use on hard, polished surfaces.
39 Mr Naismith's evidence was not challenged, it was understandable and consistent with the facts, including the history of Martin chairs collapsing when being used on the polished timber floor of the sports hall. The second hypothesis is also precluded by the fact that the defendant was diligent about keeping the fixings firm and I am satisfied that they were.
40 I find that the cause of Ms Pisan's accident, and other reported collapses of the Martin chairs that occurred in the sports hall, was the susceptibility of the bases to flex when the chairs were under normal load which, in turn, caused the legs to spread and for the fixings to sheer off.
41 I further find that nothing could be done to the chairs themselves to ameliorate the defect. In other words, they suffered from a latent structural defect which was endemic to their use on polished and slippery floors.
The other evidence
42 The plaintiff adduced evidence from three victims of collapsing Martin chairs, namely Ms Pisan, Mr Mathew Stokes and Mr Max Trenorden. The plaintiff also called Ms Heather Abel (a former employee of the defendant) and Ms Keren Haywood (an investigator) who testified as to investigations that she carried out at the defendant's premises in June 2013.
43 The defendant called two lay witnesses, namely Mr Hassell and Mr Scott Green (a senior recreation officer employed by the defendant).
44 Ms Pisan testified (and I accept) that her accident occurred as follows.
45 The students were sitting on fixed benches on one side of the sports hall. Others, including herself, were sitting on Martin chairs on the sports floor. At one point it was necessary for her to stand up. As she went to do so she felt her chair move away under her. Her left leg went forwards and her right leg went under the chair. The seat then collapsed while she was still sitting on it.
46 Her right ankle became trapped under the seat and her right knee was badly injured. She was unable to extricate herself.
47 Ms Pisan said that exhibit 3 was similar to the one that collapsed under her.
48 Mr Trenorden was the local member of State Parliament and testified about a Wheatbelt Flames netball match which he attended on 14 April 2012. He was allocated one of the Martin chairs at courtside. After sitting for approximately 20 minutes he went to the centre of the court to preside over the coin toss. He then returned to his place and went to sit down. As he did so his chair collapsed. He felt that he may have sat down with a little more force than previously. He said that the legs went away and the chair went down beneath him. He was not injured.
49 Whilst he could not be sure, he had a memory of Mr Hassell approaching and speaking to him. Another official fetched him another chair.
50 Mr Stokes testified that he attended a large dinner on a Friday in May 2013 (I infer that it was in the sports hall). It was organised by the Avon Football Association and the defendant to coincide with an interstate football match that was being played in Northam. He occupied the same seat throughout the night except when he was moving around the room. He said exhibit 3 was similar, ie he had one of the Martin chairs. At one point the seat simply collapsed as he was sitting on it and his bottom hit the floor. The base was still in one piece but it had separated from the seat with the fixings still attached (as in exhibit 3). The broken chair was taken away by someone and Mr Stokes got himself another one. He was not injured.
51 Mr Hassell was present and spoke to him afterwards, saying something to the effect that the seats 'weren't probably great chairs' (ts 16).
52 Ms Abel was employed by the defendant for approximately seven years until March 2013.
53 She testified as to occasions when she and other officers of the defendant became aware that a Martin chair had collapsed whilst someone was sitting on it, including Mr Trenorden's accident which she witnessed.
54 On or about 5 December 2011 St Joseph's School used the sports hall for its annual presentation night. Soon afterwards a member of the Parents and Citizens group, Ms Raelene Ashman, came to see Ms Abel at her workstation at the Centre reception. She brought a damaged Martin chair with her which resembled exhibit 3. Ms Ashman told Ms Abel that the chair had collapsed while she was sitting on it. She was not injured.
55 On another occasion Ms Abel was on duty at her workstation when the defendant's childcare coordinator, Ms Andrea Kusnik, came to see her with the two parts of a damaged Martin chair (similar to exhibit 3). Ms Kusnik said that the chair had collapsed while she was sitting on it and she had hurt herself. Mr Hassell was in his office nearby and came out, that is to say, he was apprised of Ms Kusnik's report and could see the broken chair for himself.
56 On another occasion in March 2012 or 2013 an organiser of a netball development and coaching course organised by the Wirrpanda Foundation came to see her and complained that a lady had fallen when her chair collapsed under her.
57 Mr Hassell testified that he was responsible for all recreation services and facilities provided by the defendant throughout the shire. He had an office in the Recreation Centre.
58 He ordered the Martin chairs after examining various options on-line. He tested a Martin chair at the Ikea store in Perth. He opted for that model because of its comfort, stacking advantages and because the price was within his budget.
59 A purchase order was issued for 270 Martin chairs at $35 each on 1 November 2011.
60 Mr Hassell collected the chairs in flat packs and transported them to Northam himself to save freight. He and other staff members assembled them over a period of time. He said that the process was very easy and every single chair was checked for tightness and safety (which included being sat on).
61 He testified that the Recreation Centre is constantly being hired or used by community groups – virtually every day. In other words, prior to 12 June 2013 the Martin chairs had been used on many occasions by many people.
62 He testified that the defendant's staff were required to check every seat for cleanliness, safety and stability when setting them out for functions. This was enshrined in a checklist (exhibit 8) which was located on the staff notice board. Relevantly, it stated:
Please remember to check that each piece of equipment is in a safe working order. If there are any problems please report to Colin or Scott.
…
Chairs: All chairs are safe [and] sturdy. Take an Allen key with you in case of any wobbling chairs. Check all nuts and bolts are in place.
…
If there are any problems with any piece of equipment. Please avoid using it and report to Colin or Scott so it can be fixed as soon as possible.
63 Mr Hassell testified that the Youth Forum on 12 June 2013 was attended by about 400 people. He helped to set out the chairs. All of the chairs were checked in accordance with normal procedure. In other words, he believed (and I find) that they were all found to be stable and 'all nuts and bolts' were in place.
64 He testified that he had no recollection of the matters referred to by Ms Abel in her evidence at [55] above. He said that there had been no official complaints about any other incidents, but he did hear occasionally (ts 54) of 'another chair' breaking, which would then be taken out of service.
65 According to his recollection there were no particularly noteworthy problems with the Martin chairs prior to 12 June 2013. But he did testify that approximately one dozen of them were disposed of because they failed in ways similar to exhibit 3 (ts 57). Given that 270 were in constant use, he rejected the proposition that a dozen was a disproportionate number.
66 I do not hold him to that precise number, but I do construe his evidence to be an admission that there were more reported collapses of Martin chairs than those that were mentioned in evidence by others.
67 He testified that the remaining Martin chairs were replaced in 2013 because they had reached the end of their service life. He did not opt for another batch because he found a lighter, more suitable alternative.
68 This evidence was tested in cross-examination and I found it to be vague and unpersuasive. He confirmed that the defendant has a purchase order on file for the replacement chairs (which would provide a date) but had not discovered it. He testified that the superseded Martin chairs were disposed of through the shire depot, but was unable to condescend to any particulars. For instance, he could not say whether the chairs were sold, given away, or trashed.
69 As to their supposed wear and tear, the evidence is that all of the chairs were still relatively new, they were regarded as fit and suitable for use as at 12 June 2013 and, prior to their mass disposal, none were discarded for any reason other than they fell apart under use.
70 Mr Green was employed by the defendant as a senior recreation officer at all material times from 1 May 2013. Mr Hassell was his direct supervisor.
71 He testified that he was on duty at the Recreation Centre when Ms Pisan's accident occurred, but he did not see it happen. It was reported to him at reception and he removed the broken pieces. They were similar to exhibit 3.
72 He testified that he had helped to set up the sports hall for the Youth Forum. All of the chairs were checked and any unstable ones were tightened with an Allen key in accordance with the defendant's procedures.
73 He testified that Ms Pisan's accident was the first and only occasion he heard of a chair collapsing under a patron whilst he worked for the defendant, but one had broken on a previous occasion when he dropped it. The damage was similar to exhibit 3.
Foreseeability - findings
74 The first issue to address is the foreseeability of Ms Pisan's accident, which turns on the defendant's knowledge and belief, or means of knowledge and belief, of the collapses of the Martin chairs and the endemic problem which was the cause.
75 I am not concerned as to Mr Hassell's honesty, which is vouched for by the fact that he admitted knowing of the collapse of about a dozen Martin chairs. However, I detected a degree of defensiveness about his evidence. I base this on my impression of his evidence about the disposal of the surviving Martin chairs, which lacked conviction or plausibility. It seems unlikely to me that a large number of chairs (about 260) would be discarded within no more than 24 months (at the most) of their acquisition on the ground of normal wear and tear, especially when the defendant's staff were always careful to ensure that chairs that were set out for public use appeared to be safe and sound. The only evidence that something was wrong was their propensity to collapse under load.
76 He was also vague in evidence about his knowledge of some of the collapses referred to in evidence. He did not recall Mr Stokes' incident. He recalled Mr Trenorden's incident, but said that he had only heard about it third hand. I accept the clear evidence of Messrs Stokes and Trenorden and find that Mr Hansell had direct, first-hand knowledge of each incident.
77 I accept that the number of failures was a small proportion of the whole. But with the exception of one chair that was dropped by Mr Green, this was not a case of wear and tear. This was a case in which there was clearly a single endemic problem, so the number was significant.
78 Mr Trenorden, Mr Stokes, Ms Abel and Mr Green testified in a clear and consistent manner and condescended to particulars. It is very unlikely that their evidence of Mr Hassell's knowledge of the incidents that they testified about could be erroneous. I accept their evidence. Based on their evidence, I find that Mr Hassell had more detailed contemporaneous knowledge of the problem with the Martin chairs than he can now recall.
79 I accept Mr Green's evidence that there were no more breakages after Ms Pisan's accident. It follows, and I find, that every other occasion that was mentioned in evidence occurred prior to Ms Pisan's accident.
80 Overall, I find that prior to Ms Pisan's accident Mr Hassell and Ms Abel, and thus the defendant, knew that there was an endemic problem with the Martin chairs which pointed to a possible design or structural problem, namely that they had a tendency to spontaneously break up into two pieces when sat on (as with exhibit 3). This finding is supported by Mr Stokes' evidence (which I accept) that Mr Hassell commented to him that the seats 'weren't probably great chairs', which points to his misgivings about their suitability.
81 Further or alternatively, given the number and nature of the collapses, the defendant ought reasonably to have suspected the existence of the endemic problem.
82 Mr Hassell placed a great deal of store on the fact that the defendant received no written notice of any of the collapses. That is to say, no incident reports were filed. I do not place any weight on that evidence which, if anything, reflects poorly on the defendant's procedures. One would have thought that the unceremonious circumstances of Mr Trenorden's incident, and others like it, would have warranted some kind of record being made, at least when the broken chair was disposed of. Be that as it may, the existence of the problem cannot, or should not have, gone unnoticed.
83 I am satisfied that the risk of a Martin chair spontaneously collapsing whilst a patron was sitting on it was reasonably foreseeable to the defendant for some time prior to 12 June 2013.
Liability – findings
84 Mr Clyne submitted that it followed from that finding that the defendant should have been taken steps to investigate the problem some time prior to 12 June 2013. In particular, he submitted that the defendant could have easily obtained a report, such as that provided by Mr Naismith. He submitted that, having obtained the report the defendant would have had no reasonable option other than to replace all of the chairs, irrespective of the cost, because further collapses would be foreseen as inevitable, with commensurate risk of personal injuries to patrons of the Recreation Centre.
85 Mr Eller stressed that the question of liability must be approached from a prospective rather than a retrospective point of view.
86 He also submitted that the burden upon the defendant of replacing all of the Martin chairs was excessive and unreasonable having regard to the fact that the defendant had a good maintenance regime and the chairs were always checked for soundness prior to use. He pointed out that it would be expensive for the defendant to replace the chairs, which cost approximately $9,500 in the first place.
87 Having regard to the considerations set out in s 5(4) of the OLA and s 5B(2) and 5W of the CLA, I make the following findings:
(i) It was clearly foreseeable, and indeed expected, that the range of patrons that would use the Martin chairs would be diverse in terms of their age, weight, fitness, infirmities and other matters, and as to their ability to survive a sudden collapse unharmed.
(ii) There was only one prior report of a patron being injured, and it was only a minor injury (the Kusnik incident). I infer that the mechanism of collapse tended to mitigate the downward force of the victim's descent as compared (say) to a situation when a person fell off a chair. Nevertheless, the collapse was bound to physically discompose the victim. I find that it was likely that a patron would be injured occasionally. The risk was real and not speculative.
(iii) I am not satisfied that the likely harm was catastrophic, but serious sprains and other soft tissue injuries would immediately come to mind if a reasonable person in the defendant's position was assessing the situation in the period leading up to 12 June 2013.
(iv) Patrons had no ability to appreciate the danger and warnings would have been of no utility since there was nothing patrons could do to mitigate the risk other than not sit on the chairs.
(v) The check list and safety measures taken by the defendant were only relevant to the tightness of the base and seat fixings and did not address the structural design problem. The amelioration of the risk of chairs collapsing required them to be removed from use on slippery or polished floors such as in the sports hall.
(vi) The risk exceeded the burden on the defendant of eliminating it. Whilst I have little or no evidence as to the defendant's financial means, there was no suggestion in evidence or submissions that it could not afford to hire chairs to temporarily replace the Martin chairs and to eventually replace them permanently with new ones, which is what it did. A figure in the order of several thousand dollars is not insignificant, but it becomes relatively insignificant when one thinks of the harm that could have been foreseen. I find that an occupier such as the defendant acting reasonably would have made appropriate enquiries and replaced all of the Martin chairs with a safe alternative before Ms Pisan's accident occurred.
88 It follows that Ms Pisan's accident would not have occurred if the defendant had discharged its duty of care, that is to say, the defendant's omissions caused the accident and her injuries.
Conclusion
89 I find that Ms Pisan's accident created a legal liability in the defendant to pay damages to her and the plaintiff is entitled to an indemnity pursuant to s 93(1)(b) of the Act in the sum of $218,213.74.
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