Perrozzi v Homestyle Pty Ltd
[2005] WADC 145
•3 AUGUST 2005
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: PERROZZI -v- HOMESTYLE PTY LTD [2005] WADC 145
CORAM: MULLER DCJ
HEARD: 18 & 20 JULY 2005
DELIVERED : 3 AUGUST 2005
FILE NO/S: CIV 2177 of 2002
BETWEEN: JOSEPH ANTHONY PERROZZI
Plaintiff
AND
HOMESTYLE PTY LTD
Defendant
Catchwords:
Negligence - Liability of occupier of premises for injury suffered by visitor - Plaintiff walked into unmarked glass panel of closed front door of a display home - Contributory negligence
Legislation:
Occupiers Liability Act 1985 WA
Result:
Plaintiff's claim allowed
Representation:
Counsel:
Plaintiff: Mr K S Pratt
Defendant: Mr M L Greenland
Solicitors:
Plaintiff: Trewin Norman & Co
Defendant: Greenland Brooksby
Case(s) referred to in judgment(s):
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
David Jones Ltd v Bates [2001] NSWCA 233
Graham Barclay Oysters Pty Ltd v Ryan (2002) 77 ALJR 183
Hackshaw v Shaw (1984) 155 CLR 614
Podrebersek v Australian Iron & Steel (1985) 59 ALR 529
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431
Wyong Shire Council v Shirt (1980) 146 CLR 40
Case(s) also cited:
Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512
City Elevator Services Pty Ltd v Burrow [2004] NSWCA 26
Gondoline Pty Ltd v Hansford [2002] WASCA 214
Harris v Adams & Anor [2005] WADC 58
Jones v Bartlett (2000) 75 ALJR 1
Koehler v Cerebos (Australia) Ltd [2005] HCA 15
Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305
Owners Strata Plan 30889 v Perrine [2002] NSWCA 324
MULLER DCJ: In this action the plaintiff, a 44 year old married man with three young children, is claiming damages from the defendant for injuries the plaintiff sustained when he walked into a closed glass door on leaving a display home owned by the defendant. The only issue in the trial was that of liability.
Circumstances of accident
At about 4.45 pm on 21 January 2001 the plaintiff, his wife and three young children went to a row of display homes in Poseidon Road in Heathridge. The plaintiff had purchased his own home in Wanneroo and he and his wife hoped to renovate the building and incorporate a mezzanine floor in the home. Knowing that one of the display homes in Poseidon Road had what they were looking for the couple decided to stop on their way to a relative's home and show the children the type of renovation they were hoping to incorporate in their own home.
The plaintiff, who had driven the family car on the afternoon in question, recalled parking his vehicle in a parking area adjacent to the row of display homes. His wife and children got out of the vehicle and went ahead of him to begin looking at the houses. Following his wife and children the plaintiff walked up the driveway and along the paved footpath to a display home owned by the defendant. On his way to the front entrance the plaintiff's wife and children, who had already been inside the home and had come out, passed the plaintiff either on the footpath or driveway leading to the house. The plaintiff went into the home alone. Although he was uncertain as to whether there was one or more entrance doors he said he recalled walking through an open door into what the floor plan of the building shows to have been a relatively small entry hall. The plaintiff briefly looked through the open door leading from the entry hall to the double garage and then made his way to the doorway at the back of the entry hall leading to a passage. He then turned around and walked back towards the doorway through which he had entered intending to leave the house. The distance he had to cover was no more than a couple of steps. Walking at a normal pace he made his way back to what he thought was the open doorway. What he did not realise is that there were two glass doors comprising the front entry. Both glass doors were capable of being opened inwards. The right hand door, looking at the premises from outside, was open and positioned against the interior wall. It was through this door that the plaintiff had entered the home. The left hand door, looking towards the entry from the outside of the house, was closed. The plaintiff did not see the closed door. Looking straight ahead and with his head up he walked into the glass panel of the closed door. His nose and head struck the glass panel and the impact caused him to fall backwards. The back of his head struck the tiled surface of the entry hall. The sound of the impact and his exclamation attracted his wife's attention and she quickly returned inside and attended to him.
In describing how the accident occurred the plaintiff said he was not in a hurry to leave the display home. On taking the couple of steps from the far wall of the entrance hall to the doorway he said he was not distracted but looked straight ahead through what he did not realise then was the clear glass of the closed door. He said he believed he was walking through an open door. Under cross‑examination he said he did not see any part of the frame of the closed left hand door. He agreed that had he been looking down he might have seen the framework at the bottom of the closed left door. As it was his focus was on what he thought was an open door but, in fact, was the glass panel of the closed door. He said he did not see the vertical frame of the closed left door either. Significantly, he disagreed that the vertical frame was in his field of vision as he left and said he simply did not notice that what has been described as the left hand door was closed.
After colliding with the glass panel the plaintiff lay on his back with his feet pointing towards the entrance doors. He initially thought he was only winded and told both his wife and the sales representative who had come to his assistance that he would be alright. After a very short time, however, he realised that he was completely numb below the neck and had no control over his body. An ambulance was called and he was taken to Joondalup Health Campus. After initial treatment there he was transferred to Sir Charles Gairdner Hospital. Subsequent investigations revealed that he had sustained an injury to his cervical spine in the form of a central cord syndrome resulting in his becoming an incomplete tetraplegic.
Nature of the front entrance
As the plaintiff clearly had no recollection of the details of the entrance to the house reliance was placed by the parties on a series of photographs showing the two doors taken shortly after the incident. The photographs show that the front entrance comprised two glass doors both of which were capable of being opened inwards and positioned against the interior walls of the entry hall. Each door consisted of a single clear glass panel surrounded by what appears to be a metal border or frame. Above the two glass doors there is another glass panel running horizontally the length of the entrance. The photographs show a light on the left external wall outside the glass doors. A second light is on the right internal wall of the entry hall. Another light is shown in the ceiling of the hallway. These lights are on in the photographs and the witness Denis Fearnall, who was the sales representative on duty at the time, said they would have been on at the time of the accident because it was his practice to turn all the house lights on when the house was opened. The photographs also show the right hand door, looking from outside the premises, to be fully open. Although it is difficult to see from the photographs the door obviously opens inwards and presumably can be opened as far as the interior wall on the right side of the entrance hall. Looking from outside the premises the photographs show the left hand door to be closed. The plaintiff agreed the doors must have been in that position when he entered the entrance hall.
The most significant photograph is Exhibit 1D. This shows the front entrance looking outwards from inside the entrance hall. Again in this photograph what has been described as the right hand door – looking at the entrance from the outside – has been opened inwards and appears to be fully open and positioned against or near the right hand interior wall of the entrance hall. At the base of the open right hand door there appears to be a small ledge or possibly the lower part of the horizontal frame of the doorway itself.
What is particularly significant about this photograph are the features it reveals of the closed left hand door. While the closed door is comprised entirely of clear glass it has a dark frame bordering both the horizontal and vertical sections of the door. The vertical section of the frame extends from the top of the doorway to ground level. Judging from the photograph the vertical section of the frame is a clear point of demarcation between the open right hand door and the closed left hand door. Apart from this vertical frame the left hand door also appears to have two dark metallic horizontal frames at both the top and bottom of the door. The horizontal portion of the frame at the top of the door joins the lower portion of the frame of the rectangular glass window above the doors to form a significant border between the glass panel and the door and the rectangular window above. The vertical and horizontal frames of what has been described as the left hand door are more clearly visible in the photographs marked Exhibit 5.
The Australian Standard
Dr Leon Jacob, an expert witness called by the plaintiff, gave evidence that he was a member, and former chairman, of the Committee for Australian Standard AS1288 which was introduced in 1994. This standard relates to glass in buildings and cl 5.1.6 provides as follows:
"Where transparent glass is used in doors and side panels or is located so that it may be mistaken for a doorway or unimpeded path of travel, it is recommended that it be marked by means of a motif or other decorative treatment to indicate its presence. However, such marking is not a substitute for the use of safety glazing when this is required by clauses in this Section."
It was common cause that neither glass door in the display home was marked by a motif or decal to indicate its presence. The glass in each door, however, satisfied the standard of Grade A safety glazing material. Dr Jacob confirmed that the building industry generally marked glass panels used as either doors or side panels with some form of decorative treatment to constitute what he described as a "visual barrier" to prevent persons from mistaking transparent glass panels for an unimpeded path of travel. A second witness called by the plaintiff, Kerry Butler, who is a certified professional ergonomist, said the use of a motif or dacel in a transparent glass panel would be more likely to alert persons of the existence of a glass door and reduce the likelihood of someone walking into the door. She described such a marking as constituting an optical or visual cue to the existence of the glass barrier.
Although the defendant had failed to conform to Australian Standard AS1288 the fact remains that there was no evidence of any earlier accident of a similar nature at this display home or at one of the many other display homes owned by the defendant and open to the public. Evidence was led from two former employees of the defendant, Richard Kingsley Mears and Denis Fearnall, that a record was kept of the approximate number of members of the public visiting the display home in Heathridge over a 16 month period. Although the record as to the numbers of visitors was not precise it is clear that thousands of visitors, probably as many as four thousand, had visited the Heathridge display home over this period. Denis Fearnall, who was the sales representative at the display home when the accident occurred, described the double glass doors as high specification and said one was kept permanently closed to emphasise the special features of the entrance.
Duty of care
The defendant accepted that it was an occupier of the premises within the meaning of s 2 of the Occupiers' Liability Act 1985. In Australian Safeway Stores Pty Ltd v Zaluzna(1987) 162 CLR 479 the High Court confirmed that the duty of care owed by an occupier under the relevant legislation and the duty of care owed under the common law was the same. In reaching this conclusion the High Court adopted the statement of Deane J in Hackshaw v Shaw (1984) 155 CLR 614 at 622 as follows:
"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."
The test to be applied to the question of whether the plaintiff's injury was foreseeable was that expressed by the High Court in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 where Mason J said:
"A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v Stone [1951] AC 850, 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 of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. 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."
While conceding that the defendant owed the plaintiff a duty of care, counsel for the defendant submitted there had been no breach of this duty because a reasonable man in the defendant's position could not have foreseen that the use of double glass doors in the entry to the display home involved a risk of injury to the plaintiff or to other visitors. In advancing this submission counsel emphasised that there were two evolving aspects of the duty of care which had particular application in this case. The first aspect was that the scope of the duty must be assessed prospectively as at the time of the accident and not retrospectively with the benefit of hindsight. The second aspect of the duty emphasised by counsel was that occupiers are entitled to assume that plaintiffs will exercise ordinary care for their own safety. Dealing in more detail with the first of the propositions advanced by the defendant the decision of the High Court in Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 emphasised that the scope of the duty of care must be evaluated by what would have been reasonable for someone in the position of the defendant before the accident occurred. While the High Court emphasised that account must always be taken of the possibility of inadvertence or negligent conduct on the part of visitors or entrants it also emphasised that the ambit of the duty of care must be determined before or at the time of the occurrence giving rise to the injury. At p 264 Kirby J said:
"The projected scope of the duty must therefore be tested, not solely with the hindsight gained from the happening of the accident to the particular plaintiff but by reference to what it was reasonable to have expected the Commission to have done to respond to foreseeable risks of injury to members of the public generally coming upon any part of the lands under its control which presented similar risks arising out of equivalent conduct."
Relying on this and a series of other decisions counsel for the defendant said that, in assessing the scope of the defendant's duty in the present case, it would be wrong to start with the accident itself and ask whether it could have been avoided by taking what was obviously a small step such as marking the glass doors. The correct approach, it was submitted, was that expressed by the High Court in Graham Barclay Oysters Pty Ltd v Ryan (2002) 77 ALJR 183 at pars 191‑192 where Gummow and Hayne JJ said:
"A duty of care that is formulated retrospectively as an obligation purely to avoid the particular act or omission said to have caused loss, or to avert the particular harm that in fact eventuated, is of its nature likely to obscure the proper inquiry as to breach. See Brodie v Singleton Shire Council (2001) 206 CLR 512. That inquiry involves identifying, with some precision, what a reasonable person in the position of the defendant would do by way of response to the reasonably foreseeable risk."
The second aspect of the duty emphasised by the defendant was its entitlement to assume that the plaintiff would exercise "ordinary" care for its own safety. In this regard counsel for the defendant placed heavy reliance on the decision of the Full Court of New South Wales in David Jones Ltd v Bates [2001] NSWCA 233. The facts in that case were that the plaintiff slipped and injured herself when moving from a carpeted surface to a hard timber surface in the defendant's premises. At the time the plaintiff was wearing shoes that were particularly unsuited to walking on smooth or untextured surfaces. At par 17 of the judgment the Court said:
"In applying this general principle, it is necessary to take account of the circumstances in which the breach occurred. In the context of industrial accidents and injuries occurring in schools and hospitals, the duty of care is considered to be a very high duty. That is because of the special nature of the responsibility undertaken. Employers, school authorities and hospital authorities have a non‑delegable duty in respect of those in their care. Motor vehicle driving has been said to require a high duty of care: see Stocks v Baldwin (1996) 24 MVR 416. This is because motor vehicles are dangerous and likely to cause injury unless great care is taken.
However, at the other end of the spectrum, for example, with respect to the duties of highway authorities, it was held in Ghantous v Hawkesbury City Council [2001] HCA 29, that the duty was to take reasonable care for the safety of persons who are taking reasonable care for their own safety: see Gleeson CJ at [6]‑[8], Gaudron, McHugh and Gummow 33 at [163], Kirby J at [248], Hayne J at [339] and Callinan J at [355].
In the case of commercial premises, such as retail stores, and in the case of residential premises, the duty is more onerous than that which applies to a highway authority. Nevertheless, it remains a duty to take that care which a reasonable person would take having regard to foreseeable dangers. As Fitzgerald JA said in Rasic v Cruz [2000] NSWCA 66 at [42]:-
'A shopkeeper owes a duty of care even to careless customers. However, a duty of care is not a general duty to protect careless people from the consequences of their own carelessness. The test of reasonable care is not whether the safety of the shop could be improved.'
Mahoney JA expressed the same view in Phillis v Daly (1988) 15 NSWLR 65, where his Honour said, at p74:-
'There is, in my opinion, a further matter to be taken into account. A person coming upon another's premises is expected to act reasonably. And this is relevant in deciding what it was reasonable for the occupier to do.'
In one of the classic passages in Indermaur v Dames, Willes J (at 288) said:
'And, with respect to such a visitor at least, we consider it settled law, that he, using reasonable care on his part for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger, which he knows or ought to know; …'
This passage, and the words 'using reasonable care on his part for his own safety', have been the subject of frequent examination. The words were used, I think, to indicate that the standard of the care expected of an occupier – and therefore what dangers he was expected to deal with – were affected by the law's expectation that the plaintiff would take reasonable care for his own safety. This, in my opinion, is still a matter for consideration."
Relying on these principles it was submitted that the defendant had done what was reasonably necessary to prevent visitors to the display home injuring themselves by walking into the glass panel and that any further precautionary measures were unnecessary and would have imposed a duty on the defendant which the law does not require. The existence of the closed doorway, it was submitted, was strikingly obvious and a visitor to the premises, using reasonable care for his own safety, should have seen the closed glass door and avoided it.
Counsel for the defendant also relied on this decision to support his argument that, while it would have been relatively simple and inexpensive for the defendant to mark the glass door in some way, the test of reasonable care is not whether the safety of the display home could have been improved in this way but rather whether the magnitude of the risk and the degree of probability of its occurrence were such that the defendant should have done something more to avoid the foreseeable risk of someone walking into the glass panel. At p 10 of the judgment Young CJ, dealing with the trial judge's finding that risk of injury could have been obviated by the relatively simple solution of moving the display racks to positions away from that area of the floor where the change in surface took place, said:
"[61]There is no reason why these utterances should not apply, at least generally, to a person walking across a floor in a shop. However, there is at least the difference, as Mr Semmier QC pointed out, that the customer in a shop is, as intended by the shopkeeper focussing on the goods rather than the floor.
[62]In the instant case, there was little difference in the co‑efficient of friction of the two surfaces: there was, of course, a difference in texture. However, the plaintiff's complaint is that had she been given sufficient warning, she would have taken particular care when coming on to the wood. There is little to suggest, however, that not taking care when walking on to the wood, increased the chance of slipping. It must be remembered too, that it was common ground that the respondent was a relatively frequent visitor to this store and knew that there were the two different surfaces.
[63]Counsel have said that this is a borderline case. I agree. However, I cannot get out of my mind that the present is a case where, whilst there were two separate types of floor surface, neither was slippery and there was no reason to suspect shown on the evidence that a person would have a special susceptibility to falling because of the change of surface. We know that the respondent did in fact fall and that she did in fact fall at the point where the surfaces changed over, but that fact of itself is, to my mind, insufficient.
[64]Even though it was doubtless possible without undue loss of selling space or other cost to display goods so that the difference in floor surface was more visible, it would not seem to me that that was something that the appellant should do to avoid the foreseeable risk that someone might fall."
Relying on this and other decisions the defendant submitted that, given the number of visitors who had been to the display home without injuring themselves, and the obvious features of the left hand door which showed it to be in a closed position, there was nothing else the defendant should reasonably have done to avoid the foreseeable risk that someone might walk into it.
Findings on liability
In considering whether the care taken by the defendant was reasonable in all the circumstances, or whether it should have done more than it did in order to guard against the possibility of someone failing to exercise ordinary care, the most significant factor was the appearance of the glass door. I have already referred to the frames around all four edges of the glass panel. The frame at the bottom, which could have been seen by anyone looking in that direction, was a clear visual sign post to the existence of the doorway. Even if unaware of the existence of the glass panel any person seeing the frame at the bottom would be alerted to the fact that there was an unusual lip at the threshold. Even more significantly, however, the vertical section of the frame extending from the bottom of the door to the glass panel above the door provided what would seem to be a striking point of demarcation between the open door on one side and the closed glass door on the other. Another factor is that the right hand door, looked at from outside the premises, was open and visibly positioned against the interior wall whereas there was a large pot in front of the closed door that would probably have prevented it from being opened to its fullest extremity.
The plaintiff had only entered the home through the open door seconds before the accident occurred. It is difficult to comprehend how he did not see and react to the dark metal framework surrounding the closed glass door. But the plaintiff did say that, although not in a hurry, he had his head up and was looking forward when he walked into the door. He did not see any of the framework even through his peripheral vision.
The plaintiff did not sustain any cuts or other injuries to his head or face. Counsel for the defendant submitted that the absence of any facial injury suggested that, contrary to what the plaintiff asserted in evidence, he must have been looking down at the time of impact and that his forehead must have made contact with the glass panel. Given the force of the impact it is surprising the plaintiff was not injured if, as he says, his nose made contact with the glass panel. However, I found him to be a convincing witness. Apart from his failure to see the panelling around the closed doorway there was nothing inherently improbable or surprising in his testimony. His failure to see the metal framework around the doorway may have been due to a lack of attention on his part. His wife and children had left the home and he must have been intent upon following and catching up with them. I accept his evidence that he did not necessarily move quickly towards the doorway. I also accept his assertion that he looked straight ahead with his head up. Oblivious as he was to the existence of the metal framework, and given that he was looking straight ahead, there was nothing else to indicate the existence of the glass panel. Had there been a decal or some form of decorative emblem at the appropriate level on the glass panel the likelihood is he would have seen it before he walked into it. He was looking in that direction and, providing the marking was clear enough, the probabilities are that he would have seen it and stopped in time.
The question is whether the defendant unreasonably failed to take specific steps to guard against the danger of someone who, like the plaintiff, might have focused on the glass panel when leaving the entry hall oblivious to the other features indicating the presence of a closed doorway. I do not believe it is any answer to this question to say that visitors to the display home could be expected to exercise ordinary care for their own safety. Judging the matter prospectively, as I agree I am required to do, I believe there was certainly a risk of someone overlooking the obvious features of the closed doorway and walking into the clear pane of glass. That risk was always there even on the assumption that visitors to the display home would exercise ordinary care for their own safety.
I am satisfied that a reasonable person in the defendant's position should have foreseen the risk of injury to someone who, like the plaintiff, focused on the glass panel in the doorway and overlooked the other features indicating that there was a door and that it was closed.
Counsel for the defendant submitted that, even if there was a risk which a reasonable person in the defendant's position should have foreseen, that risk of injury was so remote that it called for no response from the defendant. Support for this submission is to be found in the evidence that numerous visitors, perhaps as many as 4,000, visited the display home over a 14 month period without any similar kind of accident having been reported. I accept this is a significant factor but it does not alter my view that the risk of injury, while remote, was still reasonably foreseeable. The magnitude of the risk and its degree of probability have to be assessed. While most visitors exercising ordinary care for their own safety would have seen the obvious features of a closed doorway there was always a real risk of less attentive persons overlooking these features and focussing on the glass panel believing it to be an open access or exit. In this regard the Australian Standard 1288 is a significant factor. The experts have recognised the risk of transparent glass panels being mistaken for an unimpeded path of travel and have recommended that it should be marked in some way as to indicate its presence. There was a reasonably inexpensive and convenient way of minimising the risk by marking the glass panel with a motif or decal. It is no answer to say this might have affected the aesthetic appeal of the doorway. Had that been done it is reasonable to assume that a visitor who, like the plaintiff, was oblivious to the other features indicating a closed doorway, and focused on the glass panel itself, believing it to be an open exit, would see the markings on the glass and realise his or her error before it was too late.
I believe the defendant's duty to visitors to the display home included the placement of some visible sign or mark on the glass panel of the closed doorway. In my view this omission does establish an unreasonable failure by the defendant to protect the plaintiff from foreseeable danger. The attachment of some mark or sign on the glass panel would have provided the plaintiff, and other visitors, with what the experts described as a visual cue that there was a closed glass door.
I am satisfied the defendant's use of clear glass in the closed front door without placing some form of mark on the glass panel to warn visitors like the plaintiff that the door was in the closed position was negligent.
Causation
The defendant submitted that, even if the defendant had been negligent in failing to place a mark on the glass, there was no causal link between that omission and the accident because the plaintiff would not have noticed the mark even if it had been there. This submission was based upon the plaintiff's admitted failure to notice the other features, such as the door frame, to indicate there was a closed door ahead of him. It was also submitted that the lack of any facial injuries indicated that the plaintiff was looking down, rather than up as he asserted, and that his forehead, rather than his nose, made contact with the glass panel.
I have already commented on the plaintiff's failure to notice the door frame and the other features referred to by the defendant and I need not repeat what I have said earlier. As to the submission that the plaintiff must have had his head down at the time of impact, and would probably not have seen any mark on the glass, I unhesitatingly accept the plaintiff's direct evidence that he was looking straight ahead through the glass panel and believed it was a part of the open door through which he could leave the house. While the absence of any facial injury is perhaps unusual given the force of the impact I do not believe it is so significant a factor as to cast doubt on the plaintiff's direct evidence that he was looking where he was going.
Contributory negligence
The evidence I have already discussed is relevant to the question of whether the plaintiff failed to take reasonable precautions against a foreseeable risk of injury. I am satisfied that he did. He entered the display home through the open right hand door and walked past the closed left hand door as he did so. He only took a couple of steps into the hallway before turning to leave. Whether he was distracted by the fact that his wife and children were well ahead of him, or whatever the reason might have been, he did not see the dark metal frame of the closed glass doorway. Had he been reasonably alert and keeping a proper lookout I believe he should have done so. Contrasting the degree of the plaintiff's departure from a reasonable standard of care with that of the defendant I believe the causal contribution of the plaintiff's negligence to his injury should be assessed as being 25 per cent. Podrebersek v Australian Iron & Steel (1985) 59 ALR 529.
Conclusion
I would allow the plaintiff's claim subject to my finding on contributory negligence.
8
1