The Commonwealth of Australia v O'Callaghan - [2001] WASCA 276

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: THE COMMONWEALTH OF AUSTRALIA -v- O'CALLAGHAN [2001] WASCA 276

CORAM: KENNEDY J
WALLWORK J
STEYTLER J

HEARD: 8 JUNE 2001

DELIVERED : 7 SEPTEMBER 2001

FILE NO/S: FUL 175 of 2000

BETWEEN: THE COMMONWEALTH OF AUSTRALIA
Appellant (Defendant)
AND
DYLAN ROSS O'CALLAGHAN
Respondent (Plaintiff)

Catchwords:

Negligence - Duty of care - Occupier of business premises - Liability to lawful visitor - Breakage of glass door causing injury to visitor - Breakage caused by visitor

Legislation:

Nil

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant (Defendant) : Mr J C Curthoys
Respondent (Plaintiff) : Mr J R Johnson

Solicitors:

Appellant (Defendant) : Australian Government Solicitor
Respondent (Plaintiff) : Ilberys

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

Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 439
Jones v Bartlett (2000) 75 ALJR 1
Wyong Shire Council v Shirt (1980) 146 CLR 40

Case(s) also cited:

Zuvela v Cosmarnan Concrete [1971] ALJR 31

KENNEDY J: The appellant appeals against a judgment of the District Court in which it was held liable to the extent of 50 per cent for injuries sustained by the respondent on 8 October 1996, when he pushed his hands through glass doors as he was leaving the offices occupied by the Commonwealth Employment Service ("the CES") in Innaloo. The respondent had recently become unemployed. Immediately prior to the accident, he had been to the Department of Social Security ("the DSS"), which occupied offices in the same building as the CES. In order to register for unemployment benefits, however, the respondent required a certificate from the CES. He walked from the DSS across the common foyer and entered the offices of the CES where, he said, there were a lot of people standing around or sitting. He approached the inquiry counter where there was no one else waiting and asked the counter clerk for the necessary certificate. He was told that he required a numbered ticket, members of the public being served in their order of arrival. This, the learned trial Judge said, angered the respondent, "who left in high dudgeon, swearing out aloud to all and sundry" and walked hastily towards the double doors through which he had entered. The doors had aluminium frames with glass panelling. They had what was described as a waist rail at a level slightly below half way up the doors. The doors opened inwards into the CES premises and each had a handle on that side of the door. There were no handles on the foyer side of the doors. At the time, the door on his right as the applicant was leaving was permanently closed.
The evidence of the respondent was as follows:
"I approached the door. The door was closed by that time. I think one of the parents in there closed the door because the kids were running around in there. I'm not quite sure but I did see out of the corner of my eye what I believed to be someone closing the door at some stage while I was in there. So I walked up to the door, I was walking hastily, wanted to get the car going again, kids are sweating in the car and that being young, 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 side 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."
The respondent went on to say that, when the glass broke, he stepped back from the door, pulled the door open and walked out. Both his arms had been injured. In cross-examination, the respondent said that he only spent a couple of minutes in the CES office. When he was moving to leave the office, both doors were closed. He appreciated that this was so, and that they would need to be opened to enable him to leave the office. Asked whether the handles on the inside of the door indicated to him that he would have to pull the door in order to open it, he responded that this was actually part of the indicator when he went to open the door and realised it would not budge. When he looked down, he saw the handle and saw that "pull" was written underneath it. It was a little bit faded. He accepted that the doors were doors with a handle for pulling, such as he would encounter in many doors in many places in many premises. He admitted that he placed his right hand above the area of the handle on the metal door frame. His left hand, he said, was by his side at this time. He glanced down quickly when the door did not budge and his reflex action was to bring up his hand to stop himself walking into the door, to try to stop his momentum. He agreed that his initial contact with the door was when he put both hands on the aluminium frames. He said he had "tried to push back with his feet", but he had already been going forward so, he said, he would have ended up basically head-butting the door anyway. He said he had been annoyed or frustrated, but not angry, about the reaction of the counter clerk. He agreed that people within a couple of metres' proximity would have heard his outburst, and he admitted having sworn out aloud; but he denied having "stormed" out of the office. He also denied that it had been his intention to hit the door fairly hard and so "to make a statement".
Three witnesses, being employees or former employees of CES, were called to give evidence for the respondent. The first of these witnesses was Ms R L Fegredo, who was the Job Centre Manager at Innaloo from early 1996 to 1998. Her evidence was that the left hand door as you enter the CES offices was permanently closed. It had a sign on the door: "Please use other door". On the day of the accident she was in her work booth when she heard what she described as "quite a large bang". When she went to the scene of the accident, she observed very jagged pieces of glass left in the surrounding area of the door. In the foyer, the glass was broken, "like you'd imagine a windscreen would break, little bubbles of glass, but there were also some very sharp splinter like, fine pieces of glass as well spread over the foyer". In cross-examination, she described the noise as being "louder than anybody hitting the door". It was a loud bang, but there was definitely no sound of glass. She said that she was not aware of any incident or injury involving the doors to the CES offices prior to 8 October 1996.
The second of the CES witnesses was Mr M T Drage, who was an employment consultant at the time. He said:
"What I do recall is at that day somebody walked in quickly, came up to the counters, turned around and left really quickly and hit the door not with a closed fist like he wanted to punch the door. Somebody - and I wouldn't be able to say if it was this gentleman here or not, somebody walked out very quickly and hit the door and the glass broke."
Asked how he hit the door, Mr Drage responded:
"Standing upright, walking quickly towards the door. I can't remember if there was two hands placed on the door or one because I wasn't - he had his back to me so I couldn't see how that was happening but I do know that he hit it with some force and I do know it was a guy … I know that some staff members offered to assist. The glass did break. There was glass everywhere and I didn't - I can't remember assisting. I don't know if I was asked to assist or not. I just know that it was broken."
Evidence was also given by Mr T Mullally, a former employee of the CES from May 1989 to approximately June 1997. He was its Occupational Health and Safety Officer between 1995 and 1997. A little over two months after the accident, he wrote a Provisional Improvement Notice to the Branch Manager, Human Resources, in which he claimed there had been a failure to protect the health and safety of staff and other persons at the workplace of CES, in that, "despite a history of glass door breakage by angry clients, the dept has refused to replace non safety glass in the foyer/office double doors with laminated glass". In his evidence, he said that there had been "several" incidents of glass doors being damaged in the foyer, of one of which, he said, he had first hand knowledge. He added that there had been another incident, of which the staff had advised him. Objection was, however, taken to the evidence of the latter incident as being hearsay, and the objection was conceded. As to the incident of which he claimed to have personal knowledge, he said it would have been in 1991 or 1992 roughly, when he was working in the office. This was prior to his being appointed as the Occupational Health and Safety Officer. He had been upstairs when he heard a loud smash, which sounded like breaking glass. He went downstairs and one of the panels of the front doors had been smashed and there was broken glass in the foyer. There was no evidence as to how the breakage of the glass had been caused in this incident, or as to who or what had caused it.
It was contended for the appellant that the particular door in which the glass was broken in the earlier incident had not been identified, other than as the front door into the foyer. This evidence, however, must be put into context. In Mr Mullally's report, he had referred to the foyer/office double doors and he was then going on to elaborate on the contents of his Provisional Improvement Notice. Although there is a certain degree of ambiguity in the evidence, in my view, Mr Mullally should be taken to have been speaking of an incident in relation to the foyer/CES office double doors.
In reply to a later question, Mr Mullally indicated that there were sometimes angry clients who, for whatever reason, would leave the office in an agitated state. Mrs Fegredo also spoke of some clients who were extremely emotionally upset. How the clients gave vent to their emotions was not pursued.
Mr K R Fryer, who is an expert in relation to glass in buildings, was called to give evidence for the respondent. He described various qualities of glass. His evidence was that annealed glass is the ordinary glass in common use. Laminated glass is made up of two pieces of annealed glass, normally with a PVB interlay in between, which is heated and pressed in the manufacturing process. On breaking, while this glass cracks, the PVB interlay holds it together so that you do not get shards of glass flying around the place. Toughened safety glass is annealed glass which is reheated and then cooled rapidly. It is approximately five times stronger than ordinary annealed glass. When it breaks, he said, it breaks into small particles which minimise injury.
It appears to have been common ground that the premises in which the CES office was situated were built in 1980. The immediately preceding Australian standard for non-domestic occupancy allowed for annealed glass of up to .9m² to be a minimum of 6 millimetres in thickness. Over .9m² it was required to be in excess of 8 millimetres in thickness. The glass panels on the doors were sufficiently shown to be in excess of .9m². The 1989 and 1994 issues of the standard for new buildings with non-domestic occupancy provided for glass up to .5m² to be annealed glass of a maximum thickness of 6 millimetres, but for glass over .5m² it was required to be of Grade A safety glazing material. Grade A safety glazing material comprises toughened safety glass, laminated safety glass and safety organic coated glass. The 1979 and 1989 issues of the relevant Australian standard recommended only that replacement glass due to breakage should be glazed in accordance with the current standard. There was no recommendation for the replacement of glass, except when it was broken. The 1994 edition deleted this recommendation and provided that any replacement glass must be in accordance with the current schedule. In this context, it would seem that "any replacement glass" meant glass which was being replaced whether due to breakage or not. Mr Fryer was not asked any questions as to the desirability of replacing the annealed glass, assuming it to be so, with safety glass or whether he considered the Australian standard to be adequate.
The learned trial Judge did not accept the respondent's account of his accident. He said:
"I do not believe the [respondent'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 outstretched and vertical, directly out from his shoulders, revealing a distance between his thumbs of something in the order of 30 centimetres or so. As one can readily appreciate looking at the photographic exhibits, what the [respondent] 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 did 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 wrongdoing by him."
It is not entirely clear to me whether a panel on each door was broken, or whether it was only the upper panel on the left hand door which was broken. His Honour, however, having seen the respondent's demonstration, appears to have accepted that a panel on each door was broken.
His Honour continued:
"I think it far more probable that the [respondent], 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."
His Honour held that, in spite of his rejecting the respondent's explanation of the circumstances in which he sustained his injuries, this was by no means an end to the matter. He said it was not an uncommon occurrence for people to attempt to pass through a doorway by pushing the door, when it had to be pulled to open it, and vice versa, and that it would be entirely perceivable to any occupier of premises to which the public were invited, that some people would attempt to operate the doors the wrong way, and he found it entirely perceivable that some of the clientele of the appellant at its CES offices would be in a high state of agitation. Adapting the words of Mason CJ in Wyong Shire Council v Shirt (1980) 146 CLR 40, at 47, his Honour said that 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 was reasonably foreseeable. He went on to hold that the appellant should have ensured that the doors were fitted with Grade A safety glazing material. One of the glass panels, he said, had been broken some years before, which should have alerted the appellant to the potential problem, and in particular to the potential for injury. He therefore held the appellant liable, but found that, by the respondent's own conduct, he had materially contributed to the cause of his injuries. There was no evidence to establish that one of the glass panels broken by the respondent had previously been broken. His Honour assessed the respondent's degree of contribution under s 4 of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 as being 50 per cent.
In this appeal, it has been contended for the appellant that the learned trial Judge erred in fact and law in finding that the previous glass door breakage should have alerted the appellant to the potential for the door to break during the course of being used by the appellant's customers and alerted the appellant to the potential for injury. It was claimed that his Honour should have held that there was no evidence as to the way in which the glass door had previously been broken and no evidence that the glass door had previously been broken by an angry customer. It was then contended that his Honour erred in finding that the appellant should have ensured that the doors to its premises were fitted with Grade A safety glazing material. A claim that the learned trial Judge erred in assessing the respondent's general damages at $10,000 was abandoned.
The duty of occupiers in a case such as this was laid down in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 439, at 489. It is to take reasonable care to avoid a foreseeable risk of injury to those resorting to the premises.
In Jones v Bartlett (2000) 75 ALJR 1, which was decided a month after the delivery of the decision in the present case, the High Court was concerned with a claim for damages by the son of the tenants of a house who injured himself by carelessly putting his knee through a glass door. At 6 [23], Gleeson CJ said:
"There is no such thing as absolute safety. All residential premises contain hazards to their occupants and to visitors. Most dwelling houses could be made safer, if safety were the only consideration. The fact that a house could be made safer does not mean it is dangerous or defective. Safety standards imposed by legislation or regulation recognise a need to balance safety with other factors, including cost, convenience, aesthetics and practicality. The standards in force at the time of the lease reflect this. They did not require thicker or tougher glass to be put into the door that caused the injury unless, for some reason, the glass had to be replaced. That, it is true, is merely the way the standards were framed, and it does not pre‑empt the common law. But it reflects common sense.
At 9 [49], Gleeson CJ dealt with an argument that reasonable care required the respondents in that case, prior to the commencement of the

lease, to have the premises expertly assessed to see whether, and in what respects, their construction fell short of current building standards, or whether, and in what respects, they could be made safer. He regarded this argument as unconvincing. It had not been shown to be usual practice and the evidence indicated that it was not usual practice. There was no similar suggestion made in the present case.

Acknowledging that the Australian standards do not pre‑empt the common law, there is no evidence that the glass in the doors did not comply with the standard when the building was constructed. As to the previous incident when a glass panel was broken, there was no evidence as to how the glass came to be broken, or as to the force applied to it, and certainly nothing to justify the conclusion that the appellant should have been alerted by the incident to the risk of breakage and resulting injury. There was no evidence of any injury to any person from broken glass since the premises had been completed in 1980. There was no evidence that the panel replaced as a result of the earlier incident was that which was broken by the respondent. The inference was open to the trial Judge to hold that it was annealed glass which had broken, having regard to the fact that there were shards of glass on the ground so that it could not have been the case that Grade A safety glazing materials had been used. There was no evidence as to the thickness of the glass. In my view, on the evidence before the learned trial Judge, the fact that the glass was broken resulted from the deliberate act of the respondent who, in the words of the trial Judge, was determined to make a point by banging his way out of the doors. It was not the case that the cause of the breakage was some deficiency in the strength of the glass.

I would allow the appeal, set aside the judgment of the trial Judge and, in lieu thereof, I would order that the respondent's claim be dismissed.
WALLWORK J: I agree with the reasons for judgment of Kennedy J. There is nothing I wish to add to those reasons.
STEYTLER J: I have had the advantage of reading the reasons for decision to be published by Kennedy J. I agree with them and have nothing to add.