O'Callaghan v Commonwealth of Australia - [2000] WADC 259

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: O'CALLAGHAN -v- COMMONWEALTH OF AUSTRALIA [2000] WADC 259

CORAM: NISBET DCJ

HEARD: 18 SEPTEMBER 2000

DELIVERED : 20 OCTOBER 2000

FILE NO/S: CIV 1012 of 1992

BETWEEN: DYLAN O'CALLAGHAN
Plaintiff
AND
COMMONWEALTH OF AUSTRALIA
Defendant

Catchwords:

Negligence - Occupiers liability - Plate glass entry door - Damages - Personal injuries - Contributory negligence

Legislation:

Occupiers Liability Act 1985 (WA)

Result:

Claim allowed.
50 per cent contributory negligence.

Representation:

Counsel:

Plaintiff: Ms K L Shannon
Defendant: Mr J Curthoys

Solicitors:

Plaintiff: Ilbery Barblett
Defendant: Australian Government Solicitor

Case(s) referred to in judgment(s):

Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520
Hackshaw v Shaw (1984) 155 CLR 614
Trade Practices Commission v Manfal Pty Ltd and Others (1990) 97 ALR 231
Wyong Shire Council v Shirt (1980) 146 CLR 40

Case(s) also cited:

Bartlett v Jones, unreported; FCt SCt of WA; Library No 990073; 22 February 1999
Irvine v Wesley College, unreported; DCt of WA; Library No 4772; 8 February 1996
Kondis v State Transport Authority (1984) 154 CLR 672
Nagle v Rottnest Island Authority (1993) 177 CLR 423
Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313

NISBET DCJ: On 8 October 1996 the defendant, through its Department of Employment Education and Training, was the occupier of the Commonwealth Employment Service (CES) premises located at 384 Scarborough Beach Road, Innaloo. These were substantial commercial premises in a large commercial shopping precinct to which many members of the public would have recourse on a regular basis.
On that day the plaintiff, a recently unemployed young man, had been to the Department of Social Security, another of the defendant's departments, which occupied premises in the same complex, and in order to register for unemployment benefits needed a form from the CES. Entering the CES part of the premises he waited at a counter for a short time and when he obtained the attention of the counter clerk asked for the form he needed, which was apparently called a separation certificate. The counter clerk told the plaintiff that he needed to take a ticket and wait his turn to be served, the CES at that time having a ticket number dispenser so that members of the public seeking assistance could be dealt with in an orderly fashion. This angered the plaintiff who left in high dudgeon, swearing out aloud to all and a sundry. He walked hastily towards the exit doors which were glass panelled doors in a metal frame. He said that he:
"… went to push the door open and it didn't budge as I approached it with my – I went to push it with my right hand. I quickly glanced down, realised it said "pull" below the handle and as I was still moving forward, had the momentum. I tried to stop myself by placing my left hand out as well. My right hand was on the metal frame above the corner of where the glass was on the actual metal frame just above the corner section, to the side, and I placed my left hand in the same place and braced myself to stop myself walking into the door with flat palms. Being a hot day my palms were sweaty and unfortunately being aluminium it didn't offer any grip and my palms slipped in slightly. My left palm went through first. I lost balance and tried to regain balance and pushed harder with the right which – then the right side of the door also gave in, I ended up three quarters of the way through the door and my arms basically out still, yes."
I do not believe the plaintiff's account of this accident. He appeared to me to be an overly loquacious person anxious to excuse his own behaviour that day. Consistently when he demonstrated the manner in which he approached the glass doors at the premises he put both of his hands out in front of him, palms out stretched and vertical, directly out from his shoulders, revealing a distance between his thumbs of something in the order of 30 cm or so. As one can readily appreciate looking at the photographic exhibits, what the plaintiff was trying to say was that whilst his left hand went through the upper left hand pane of glass and his right hand went through the upper right hand pane of glass of the two centrally opening glass doors, he had in fact attempted to put each of his hands on the central part of the metal frame of each of the doors ie the part where each would open. These being adjacent he would have been obliged to have his hands almost touching if not actually touching and accordingly the way he demonstrated his actions in court do not match his oral description in evidence. In any event, his whole presentation seemed to me to be one that was designed to be exculpatory of any negligence or wrong doing by him.
I think it far more probable that the plaintiff, in an angry and hostile mood, shouting and swearing as he left the CES office, was determined to make a point by banging his way out of the doors. I do not believe him when he says that he saw the word "pull" on the door and put his hand out to try and brace himself because of his forward momentum. I think he intended at all times to push open the doors with the palms of his hands in some sort of dramatic if not puerile gesture of self righteous indignation.
Notwithstanding that I reject the plaintiff's explanation of the circumstances by which he sustained some cutting injuries, mostly to his left forearm, this is by no means an end to this matter. Firstly, most people will have experienced a situation sometime in their lives when they have attempted to pass through a doorway by pushing the door when it had to be pulled to open and vice versa. It is not an uncommon occurrence and it would be entirely foreseeable to any occupier of premises to which the public were invited (indeed to which some members of the public were required to have frequent access) that some of those people would attempt to operate the doors the wrong way. This phenomenon has passed into folk law. There is a famous cartoon by the internationally known cartoonist Larson depicting a pupil at the 'Midvale School for the Gifted' pushing on a door clearly marked "Pull". Furthermore I find that it was entirely foreseeable that some of the clientele of the defendant at its CES offices would be in a high state of agitation. People who have recently lost employment, people who are having difficulty finding employment, people who are despairing at the prospect of ever finding employment these days in Australia, when the concept of full employment is but a memory, would all be the types of persons the defendant might reasonably foresee would use its premises. A sufficient number of them would be demonstrably emotionally upset to give cause to the defendant to have regard to their presence on its premises.
In the words of Wyong Shire Council v Shirt (1980) 146 CLR 40, the risk that a person would push on the glass panels of these doors with sufficient force to shatter them and thereby do themselves injury was real, not fanciful and reasonably foreseeable.
In the circumstances I have little difficulty in finding that the defendant owed the plaintiff a duty of care to ensure that its premises were reasonably safe for use in the manner in which the defendant could reasonably foresee them being used. The question then becomes: did the defendant breach its duty of care? In this regard the plaintiff brought his claim in negligence as well as under the Occupiers Liability Act (1985) (WA). This is just as well because the Commonwealth is not bound by state legislation which would adversely affect its property, revenue or prerogatives: Trade Practices Commission v Manfal Pty Ltd and Ors (1990) 97 ALR 231 at 240. Accordingly the question of breach or no breach falls to be determined according to the common law rules of negligence (since Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520). What then did the defendant have to do to make its premises safe? "… what a reasonable man would in the circumstances do by way of response to the foreseeable risk." (Hackshaw v Shaw (1984) 155 CLR 614 at 662).
One of the defendant's former servants at these very premises, Mr Terry Mullally, gave evidence that during his employment there in early 1991 or 1992 he recalled that one of the glass panels in the doors in the foyer of the premises was broken. The flavour of his evidence was that it was broken by somebody exiting the premises the wrong way. Whether that person was angry, upset or simply made an error is unknown because Mr Mallally was not required to investigate the circumstances in which the previous glass breakage occurred, but it is sufficient to note at this stage that there was a break of glass at the premises in the glass door in 1991 or 1992 which was obviously known to the defendant.
Mr Kenneth Roy Fryer gave opinion evidence as a glass expert. He is a director of Glass Consultant Services Pty Ltd with many years experience in dealing with glass installation and repairs. Mr Fryer's qualifications to give opinion evidence as an expert were not challenged by the defendant. He said that he was not able to say what type of glass was broken by the plaintiff as he left the defendant's premises, not having had the opportunity to inspect it, but from the papers and information that he was given he thought that the glass was probably ordinary annealed glass. Mr Fryer described the Australian standards that apply to the installation of glass in buildings, which from 1989 recommended that plate glass with an area in excess of half a square metre should be of grade A safety glazing material. Grade A safety glazing materials consists of toughened safety glass, laminated safety glass and safety organic coated glass for which there are varying specifications according to the square area of glass involved. Of these materials the only one that requires an explanation is that relating to safety organic coated glass. This is simply glass which has had a film placed over it such as is now commonly available and has been for many years. The object of all of these materials is to prevent glass shatter. Annealed glass when it breaks, breaks into shards which are sharp and exceptionally dangerous whereas safety glass tends to fracture in smaller pieces. Grade A safety glazing materials are relatively inexpensive, readily available and easy to install.
In my opinion, the defendant's response to the foreseeable risk of harm to users of its premises should have been to ensure that the doors were fitted with grade A safety glazing material. The defendant is after all the biggest corporation in Australia with enormous resources. Whilst the Australian standards do not have the force of law and are treated as recommendations in the construction industry they are nevertheless an exceptionally useful tool to which frequent recourse is had in order that the opinion of experts on any relevant subject covered by the standards, can be obtained.
But it is not just the existence of the Australian standard that is determinative of this issue. As I have already found, the risk of injury was foreseeable. It was in my opinion a substantial risk. One of the glass panels in these very doors had been broken some years before which should have alerted the defendant to the potential problem and particularly the potential for injury.
In all of the circumstances I find that the defendant breached its duty of care to the plaintiff by failing to ensure that the doors were fitted with a grade A safety glazing material.

Contributory Negligence

Professor Fleming in The Law of Torts (8th Edition Sydney LBC 1992) at p 268 describes contributory negligence as:
" … a plaintiff's failure to meet the standard of care to which he is required to conform for his own protection and which is a legally contributory cause, together with the defendant's default, in bringing about his injury."
In my opinion there is little doubt but that the plaintiff failed to exercise appropriate regard for his own safety and by his own conduct materially contributed to the cause of his injuries. I assess his degree of contribution at fifty percent.

Damages

Shortly after he was injured the plaintiff attended at a nearby medical centre where he was seen by a general practitioner Dr Daryl Sosa. In a report dated 12 November 1996 Dr Sosa noted that the plaintiff presented on him with a large deep laceration to his left elbow which he described as:
" … a large v shaped proximal based flap laceration of the proximal left forearm over the ulnar aspect. The laceration was approximately 15cm long. Just distal and medial to the tip of the large flap there was a full thickness triangular "divot" type laceration. There was also a small deep laceration of the right elbow. Beneath the full thickness flap of the left elbow the laceration extended through the depth fascia above the extensor carpi ulnaris which was partly divided and then medial to that anconeus muscle was transected. The distal forearm and hand sensation was intact as was ulnar motor nerve function. There was no significant vascular injury."
Dr Sosa's treatment consisted of what he described as:
"… extensive local debridement and repair or muscle and deep tissue lacerations under local field block. The wound was closed in layers and two fenestrated Yates drains were inserted. The "divot" laceration was treated with Kaltostat overlay and the right elbow laceration was treated with a simple suture. Pressure dressings were applied to the left elbow and the plaintiff was reviewed frequently over the next two weeks. The drains were removed after two and a half days and the sutures were removed in stages from twelve to fourteen days."
A year later Dr Sosa thought the plaintiff had gone on to complete recovery save for a permanent scar which he thought quite acceptable having regard to the initial nature of the wound.
Reviewed by a plastic surgeon Mr C V Thomas, the plaintiff's symptoms were mainly of tenderness and pain usually occurring when the scar was accidentally knocked. Dr Thomas noted that having regard to the placement of the scar it was prone to minor knocks and apart from noting some other minor symptomatology Mr Thomas thought the plaintiff had made a complete recovery with no permanent disabilities other than what he described as a relatively minor scar. No further treatment was really indicated save for a cortisone injection.
Whilst the plaintiff was certified unfit for work for a time there appears not to have been any damage sustained in consequence thereof nor was any claim for damages under this head of claim put forward. The assessment of general damages therefor involves me considering the amount of pain and suffering, loss of amenities and the like caused by this injury. Considering all of these factors, the extent of the injuries, the shock and distress it would have caused the plaintiff, the immediate loss of blood, the medical treatment and the residual damage, I think a proper of award damages is in the sum of $10,000. To this must be added agreed special damages in the sum of $505.15. Hence the total award is in the sum of $10,505.15 however this must be reduced by half having regard to my finding of contributory negligence and the award in favour of the plaintiff will be $5,252.33.