Smith v Professional Suites Community Title Scheme 14487

[2013] HCATrans 284

[2013] HCATrans 284

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B23 of 2013

B e t w e e n -

JODIE SMITH

Applicant

and

PROFESSIONAL SUITES COMMUNITY TITLE SCHEME 14487

Respondent

Application for special leave to appeal

HAYNE J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 NOVEMBER 2013, AT 12.45 PM

Copyright in the High Court of Australia

MR G.J. CROSS:   May it please the Court, I appear for the applicant.  (instructed by Colin Patino & Company)

MR S.L. DOYLE, QC:   May it please the Court, I appear with MR R.C. MORTON, for the respondent.  (instructed by Moray & Agnew Solicitors)

HAYNE J:   Yes, Mr Cross.

MR CROSS:   Your Honour, the matter before the Court involves the issue whether in light of the statutory obligations admitted to be owed by the respondent by section 30 of the Workplace Health and Safety Act 1995 there was an obligation on the respondent to take a proactive response as opposed to a reactive response in regard to the doorway and side panels of the entranceway of the premises. That is both in a general sense and also at a time when a substantial renovation of the property was undertaken in the year preceding the accident in question.

To the statutory obligation, it is admitted by the respondent that it took no steps whatsoever to comply with the statute.  The relevant section of the statute which is found in the applicant’s authorities on page 7 required that the respondent ensure there was:

appropriate, safe access to and from the workplace for persons other than the person’s workers.

If there was, in section 26, which is on page 5 of the authorities:

If a regulation or ministerial notice prescribes a way of preventing or minimising exposure to a risk, a person may discharge the person’s workplace health and safety obligation for exposure to the risk only by following the prescribed way.

HAYNE J:   Now, was that provision engaged?

MR CROSS:   Yes, it was, and the relevant standard was that in the Workplace Health and Safety Risk Management Advisory Standard 2000 which starts on page 8 which required, if I am not rushing your Honours, on page 14 to identify hazards as therein defined, paragraph 2.5 on the top right‑hand side.  On page 15 it noted that, second paragraph:

Workplace hazards are not always obvious.

The way to look for hazards included “conducting a safety audit” or a “scientific or technical evaluation”.  In response to that obligation, the respondent did nothing.  The premises were old premises built around 1971.  The glass in the side panels to the doors in the entranceway of the premises had not been altered.  There had been at least two – or two changes in the relevant Australian standard. 

Nothing was done to check either before the renovation or to instruct the architects at the time of the renovation to determine whether they were appropriate or safe, appropriate in the sense used in the matter of Ridis and the decision of Justice Tobias.  If I could take your Honours to the applicant authorities, page 68, last paragraph, and what is Justice Tobias’ understanding of what the word “appropriate” means, in that it might not be broken:

nor patiently defective but which nevertheless, presented a reasonably foreseeable safety risk –

and should have been changed to adapt to the “current safety standards”. 

HAYNE J:   Now, is that essentially a question of fact?

MR CROSS:   That it was appropriate or that it was?

HAYNE J:   Whether it was appropriate is essentially a question of fact, is it not?

MR CROSS:   That is correct.  Seen in light of ‑ ‑ ‑

HAYNE J:   Why would we get into that question of fact?

MR CROSS:   In that, because there was no compliance with a statutory obligation to ensure appropriate, then one would need to assess whether at the time of the event the access way was appropriate.  Can I treat it another way, your Honour?  In this particular instance, the impact by the applicant with the glass was not significant and the result was surprising.  They are findings by the trial judge.  Then his Honour speculates what may have been the problem, including he identifies some expert evidence by Dr Casey that glass deteriorates over a period of time or something else may have happened, the point being is that because there was a duty to ensure and that duty was absolute, if an injury occurred while entering the property then the obligation to ensure has not been met and there has been a breach.

The importance of that is as follows.  In cases previously before this Court such as Jones v Bartlett, the Court held there was no duty to inspect that was known or ought to have been known, as opposed to this particular instance where there is an obligation in regard to a statute ensuring that the respondent provide appropriate access.  That can be ‑ ‑ ‑

GAGELER J:   Can I just interrupt here?  The critical passages in the judgment against you are in the judgment of Justice Fraser at page 64 of the application book in paragraphs [71] and [72].  Now, can you identify any error of principle in those paragraphs?

MR CROSS:   Firstly, [71] talks about there is no suggestion that it was not appropriate, appropriate in the sense that it had not been changed for 30 years. The question then, yes, that would be at issue. There was an obligation pursuant to section 30(1)(c) to make sure it was appropriate, or to ensure it was. Secondly, the glass audit step or the assessment of the glass is one of the requirements suggested by the Risk Management Advisory Standard to do a safety audit and if necessary to seek technical advice in regard to that.

Your Honours, the point of the relevance of the statute as opposed to what was normally expected at common law can be traced since the decision of Jones v Bartlett in this Court in the decisions I refer to such as Ridis, which is – the citation is given - No 6 on the applicant’s line of authorities; Tweed Shire Council which is not, and Ahluwalia v Robinson all were glass cases.

HAYNE J:   All of them turn on their particular facts and evidence.  What is the point of general principle which you say arises?

MR CROSS:   Your Honour, in the matter of Jones v Bartlett, in the matter of Ahluwalia and in the matter of Ridis the issue was what difference did the statutory obligation make?  For instance, Justice Kirby in Jones v Bartlett noted that:

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

Can I take you to page 73 of the applicant’s authorities, and this is the importance of the statutory obligation imposed on what is normally expected at common law.  Starting at page 72, paragraph 77, in the decision of Justice Tobias, he discusses Jones v Bartlett and there is no duty to inspect – sorry, does your Honour have that page?

GAGELER J:   I do not think I do, I am sorry.

MR CROSS:   Sorry, page 72, paragraph 77 at the bottom of the page.

GAGELER J:   I am looking at the wrong bundle, I am sorry.

MR CROSS:   That is all right, I probably rushed your Honour.  This is the importance of this particular decision because it fits into the narrative of the cases since Jones v Bartlett.  His Honour there, starting at paragraph 73, made reference to Jones v Bartlett.  Then at paragraph 77, Justice Kirby talks about “positive duties to ensure inspection” only if there is “authority of legislation”.  A similar point was raised by Justice Hodgson in Ahluwalia v Robinson that it:

makes it clear that, in the absence of a contract supportive of a higher duty –

there is no general duty to inspect.  Then in Ridis, Justice Tobias is referring to section 62 of that relevant legislation and indicates that in Ridis the particular section fitted into those two paragraphs, that was the contract or that was the legislative authority which required an inspection, an inspection by an expert.

Justice Tobias was in the minority, in the minority by reason that the provisions of section 62 did not, with respect, and excuse the slang, did not have the legs that Justice Tobias suggested they had in imposing that positive duty, whereas in this particular instance the statutory obligation which has been admitted was not followed or the advisory standard was not admitted to be followed or any other steps taken to inspect the doors.  In this particular instance, the statutory obligation is such that it takes it to the furthest step where there should have been a safety audit of a technical nature to ensure that the glass in the entranceway was safe and was appropriate.

GAGELER J:   Now, Mr Cross, at the bottom of page 62 of the application book, at about line 40, it is recorded that:

It was not in issue that a breach of s 30(1)(c) would amount to evidence, but not conclusive evidence, of negligence.

MR CROSS:   I accept that.  In this particular case in the decision of the Court of Appeal, President McMurdo found a breach and found that breach, when considered with the general law, made it sufficient to find that the respondent was negligent whereas Justice Fraser found no breach of the statutory obligation.  That is to be found at last line of paragraph [74].

HAYNE J:   You would have us say that the consequence of the relevant statutory and regulatory provisions is that every employer must conduct a glass audit of the whole of their premises?

MR CROSS:   With respect, no, your Honour.

HAYNE J:   Then it is evident, is it not, that the question is one which turns on the particular facts of this case?

MR CROSS:   With respect, can I go back to the first question, your Honour?  This is not an employer/employee situation.  It is a person in control of a workplace.  In this particular instance the obligation was limited in that the only part of the premises they controlled was the foyer area and the common area and the obligation was different to that obligation on an employer and the obligation in which there must have been a breach because it was a strict liability type section.

HAYNE J:   The point I am putting to you, Mr Cross, is that you are either advocating an absolute general rule or we are in the realm of particular facts of the particular case.

MR CROSS:   Pursuant to the section, there was an obligation to ensure appropriate access and in this case that required a safety audit of those matters under which they had control, in particular when they undertook a substantial renovation of the front of the building one year earlier.  I think President McMurdo addresses your Honour’s concern or point in paragraphs [23] and [24], particularly paragraph [24].

GAGELER J:   You have to say there, one, there should have been an audit, and two, if there had been an audit it would have resulted in the glass being replaced with safety glass or laminated glass. 

MR CROSS:   Yes.  Firstly, there should have been an audit because the standard required it, and the trial judge at page 81 of the application book there was an admission as to how much an audit would cost of the glass.  That cost was $220, and his Honour then commented if O’Brien’s had have done an audit, he makes the comment in paragraph 17 on page 81, he is 100 per cent certain that they would have recommended change, and 110 per cent sure they would have complied with it.

So, to answer your Honour’s question, yes, there is a statutory obligation to undertake the audit.  Secondly, if the audit was undertaken, the cost was not prohibitive.  The trial judge was of the view that it would have been replaced and the replacement costs were 1,761.  That is a usual argument, with respect to your Honour, about it would have required an audit of everything in the whole building.  With respect, the obligation is fairly specific in regard to those in charge of a workplace, not surprisingly for this reason.

In the cases previously in regard to breakage of glass, they talk about, for instance, in Jones v Bartlett there was an internal door and a domestic situation.  In Ahluwalia it was a domestic premises, a shower

screen.  In Ridis it was a block of units.  Tweed Shire Council v Hancomatic was a commercial motel not occupied by the person who was pursued, the defendant. 

Here it is a busy workplace, busy street, lots of people going in through the front door.  In that context, providing appropriate safe access – sorry, ensuring appropriate safe access has a greater connotation that you have to do more than say in a domestic situation.  So, to answer the question does it require the whole building to be inspected or audited, well, in this particular case it required the access areas to be audited and that did not require any great expense to audit the access. 

The other issue is that when they renovated it they gave the architect 26 specifications in regard to the renovation of the foyer area.  Not one of those specifications related to safety.  At that stage, the cost of determining whether the access way was safe could have been more easily and cheaply attended to.  So, whilst there is force in his Honour’s argument that yes, where does the obligation stop, in this particular case because of the constrained nature of the section and because of the circumstances of the renovation shortly prior to the accident, it would not have required much. 

The point of special interest in the case is that here it is not just the common law and there has been those discussions which are alluded to by Justice Tobias that I took you to: contract, statutory obligation. When Justice Tobias endeavoured to use section 62 in that particular case, it did not carry – it did not have the force that a section 30(1)(c) does in this. Hence, this case is appropriate and in this instance to determine what difference, is there a positive obligation to ensure appropriate safe access? What effect does it have on the common law in this situation and generally? My light is on so I had better stop. Thanks.

HAYNE J:   Thank you, Mr Cross.  We will not trouble you, Mr Doyle.

MR DOYLE:   May it please the Court.

HAYNE J:   No point of general principle would fall for consideration if special leave to appeal were to be granted in this matter.  It is not shown to be in the interests of justice generally or in this particular case that there be a grant of special leave.  Special leave to appeal is refused with costs.

AT 1.06 PM THE MATTER WAS CONCLUDED